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Terms

TAKUMI Creator T&C

 

TERMS OF USE

Please read these Terms of Use carefully before downloading or using the Takumi App.

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).

These Terms of Use are a legal agreement between you and us for:

  • the Takumi social creator application software and the associated data and media (the “App”);
  • the electronic documents which describe the functionality and operation of the App (the “Documents”); and
  • key deliverables which will be delivered bespoke for each campaign.

These Terms of Use also set out the terms of the legal agreement that you enter into between you and the Brand Owner or its Brand Agency when you agree to participate in a Brand Owner’s advertising campaign.

The App is owned by Takumi International Ltd (“Takumi;” “we”, “us” and “our”, as applicable), a company registered in England and Wales. Our company registration number is 09325188 and our registered office is at Waverley House, 9 Noel Street, London, England, W1F 8GQ, UK. Our registered VAT number is GB 210 670 744. Takumi and its affiliates provide the App and any of the services accessible through the App (Services), including any updates or supplements to the App or any Services, to you (the “user”, “you”, and “your”, as applicable), the user of the App, only for your own personal use and subject to your acceptance of and compliance with: (i) these Terms of Use; and (ii) our Privacy Policy at www.takumi.com/privacy. Please read these Terms of Use and our Privacy Policy carefully before downloading or using the App or any Services. By downloading or using the App or any Services, you agree to these Terms of Use and our Privacy Policy which will bind you. You also accept that you will be entering into separate legal agreements with Brand Owners and/or their Brand Agencies. If you do not accept these Terms of Use or our Privacy Policy, please do not download or use the App or any Services.

Social Media Account

You must hold your own valid, live and public Social Media Account to participate in the advertising campaigns run by the Brand Owners. Your Social Media Account must represent a real person and not a brand, organisation or similar. We reserve the right to deny Social Media Accounts from participating in Brand campaigns. Your Social Media Account and your use of it, the Social Media platform or app or any Social Media services will be governed by the terms of use set by the Social Media platform. You must fully comply with those terms at all times.

These Terms of Use and our Privacy Policy do not apply to other Social Media platforms, sites, apps or services. When you use the Social Media site or app or any services, you will be bound by the Social Media Account’s own terms of use and privacy policy. If you have any concerns, please refer to those documents or contact the Social Media platform directly. We have no control over other Social Media platforms and shall have no liability to you for their acts or omissions.

You acknowledge that other Social Media platforms have not endorsed the App or any Services and they are 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:

  • you automatically enter into a direct contract with the Brand Owner and, where applicable, its Brand Agency, on the terms explained in these Terms of Use which governs your participation in the Brand Owner’s advertising campaign;
  • 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 or the Takumi team; 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 posts you submit on your Social Media Account 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:

(a) you specifically promise to the Brand Owner and/or Brand Agency that you will comply with these Terms of Use and specifically with paragraph 12 & 13 (Conduct);

(b) you grant to the Brand Owner (and/or to the Brand Agency for the benefit of the Brand Owner) the royalty-free, non-exclusive, irrevocable, one year licence for the Brand Owner to post your User Content on all digital channels, including but not limited to the Brand Owner’s 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 you and the Brand Owner by negotiating such further use with Takumi’s involvement.

Licensed User Content can be edited by the Brand Owner, however use of content as a logo (or part of a logo) requires an exclusive license. Further license rights can be acquired by the Brand Owner by negotiating further license rights with Takumi’s involvement.

(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.

(d) The Brand Owner and Brand Agency are not responsible for payment of your fees and payment to you will be made solely by Takumi in accordance with these Terms of Use.

Payment for Participation in Campaigns

We will pay you for your successful participation in the Brand Owner’s advertising campaign provided that:

  • the content you post is original, created exclusively for the purpose of The Brand Owner and Brand Agency and created by you for the specific campaign;
  • you have, at the time you create the post, at least 1,000 (one thousand) genuine followers on social media;
  • the Brand Owner or Brand Agency has not, within the 30 days since the post was first submitted to the Takumi platform, objected to the post on the grounds that you have failed to comply with the campaign rules notified to you via the App or by the Takumi team;
  • the Brand, Brand Agency nor Takumi have objected to the content on the grounds that it is offensive or damages the goodwill or reputation of Takumi or the Brand;
  • you have submitted post or story insights within 30 days from your content going live;
  • you have fully complied with any other campaign rules notified to you via the App or by the Takumi team;
  • Unless the Brand Owner requests that the content is not posted to your Social Media Account, you submit the post on your own public account;
  • you leave the post unchanged on your Social Media Account for at least 30 days, including Reels and IGTV posts in-feed. If the post is changed or removed before that duration it will result in temporary or permanent suspension from the Takumi platform;
  • you have not received any take down notice from a Social Media platform in relation to the User Content or any other content.

Each post you submit that adheres to the above criteria is a Qualifying Post. The reward amount paid is specified on the campaign pages within the App. The reward amount is claimable within the App and paid into your designated bank account after your post has fulfilled all relevant Qualifying post requirements, including leaving the post unchanged on your Social Media Account for at least 30 days.

All reward amounts include VAT (UK/EU) or Sales Tax (US).

You expressly authorise Takumi’s service providers, Revolut Ltd. and Dwolla Inc., to originate credit transfers to your financial institution account.

US-based 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.

Changes to these Terms of Use

1.

We reserve the right, in our sole discretion, to revise these Terms of Use at any time. Any changes to these Terms of Use will be included in a revised version of these Terms of Use notified to you through the App. Your use of the App and any related Services following posting of any changes to these Terms of Use constitutes your unconditional acceptance and agreement to be bound by the changed terms. You must cease using the App and the Services if you do not agree to be bound by the revised Terms of Use.

Updates

2.

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.

Devices

3.

You will be assumed to have obtained permission from the owners of the mobile telephone or handheld devices that are controlled, but not owned, by you and used by you to download and use the App (Devices). You and they may be charged by your and their service providers for internet access on the Devices. You accept responsibility in accordance with these Terms of Use for the use of the App or any Service on or in relation to any Device, whether or not it is owned by you.

Third party sites

4.

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

5.

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 a legal guardian. If you are a parent or a 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.

6.

If you access the App or Services and enter into these Terms of Use on behalf of a “loan out” or other company, entity or organisation for which you conduct any business (collectively, Organisation), then you hereby represent and warrant that (a) such Organisation will be bound by the terms and conditions in these Terms of Use (and all references to “you” in the Terms of Use will refer to such Organisation except for those in this clause; and (b) such Organisation will cause you to, and you will, comply in all respects with these Terms of Use.

App License

7.

LICENSE TO YOU: We grant you a limited, non-exclusive, non-transferable, non-sub-liceansable, revocable, royalty-free and worldwide license to make personal use of the App, the Services and the Documents on the basis of these Terms of Use, our Privacy Policy and subject to any rules or policies applied by the provider or operator from whose site you downloaded the App (the Appstore) (Appstore Rules), which are incorporated into these Terms of Use by reference. You may download, view and use the App and the Documents for your own personal and non-commercial use. In this context, “personal use” does not include posting, uploading or otherwise publishing the materials to any other site. This license does not include any rights not specifically enumerated herein. You agree to use this App only for lawful purposes and in accordance with these Terms of Use.

8.

You acknowledge that you have no rights in, or to, the App, the Documents or the Technology (as defined below) other than the right to use each of them in accordance with these Terms of Use.

9.

You have no right to have access to the App in source-code form.

10.

We license, and do not sell, the App or the Documents to you. We remain the owner of the App and the Documents.

Limitations

11.

Without altering the scope of these Terms of Use, and except expressly provided for in these Terms of Use or as permitted by law, you agree: (a) not to modify, adapt, vary, translate, merge, copy, reproduce, imitate, distribute, publish, rent, lease, sub-licence, loan or resell the App, any of the App’s content (including without limitation all software, code, data and information comprised within the App (App Content) or the Documents, including but not limited to the trademarks and copyrights of Takumi and its affiliates, or to make derivative use of the App, the App Content or the Documents; (b) not to make alterations to, or modifications of, the whole or any part of the App, or permit the App or any part of it to be combined with, or become incorporated in, any other programs; (c) not to provide or otherwise make available the App in whole or in part (including object and source code), in any form to any person without prior written consent from us; (d) not to make commercial use of the App, the App Content or the Documents; (e) not to use or access the App or any part of the App to download or copy any account information that is not your own for your own use or for the benefit of another party; (f) not to, and not to attempt to, bypass any technical measures used to prevent or restrict access to any portion of the App; (g) not to reverse-engineer, decompile, disassemble or create derivative works based on the whole or any part of the App or to convert into human readable form the App or any App content not intended to be read, including but not limited to using or directly viewing the underlying code for the App except as interpreted and displayed on the Device; (h) not to use any data mining, robots, or similar automated data gathering and extraction tools to access the App or any part of the App; (i) not to violate or attempt to violate the security of the App or any part of the App, (j) not to interfere with or attempt to interfere with the proper working of the App; (k) not to alter or modify, or attempt to modify, the App or any part of the App; or (l) not to attempt to gain unauthorized access to any portion of the App or any systems or networks connected to the App through hacking, cracking, mining, phishing or any other means; (m) to comply with all technology control or export laws and regulations that apply to the technology used or supported by the App or any Service (the Technology).

Conduct

12.

You must: (a) not use the App or any Service in any unlawful manner, for any purpose that is unlawful or in any manner prohibited by these Terms of Use or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the App, any Service or any operating system; (b) not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service; (c) not transmit any messages, material, images or content that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service; (d) not use the App to solicit the performance of any illegal activity, to stalk or harass other users of the App, or to engage in any other activity which infringes the rights of Takumi or any other third parties; (e) not use the App or any Service or take any action that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and (f) not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.

13.

You must ensure that:

  1. your User Content complies with all applicable laws, regulations, codes and standards, including without limitation those related to advertising;
  2. your User Content complies with the Social Media platform’s terms of use;
  3. 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;
  4. 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;
  5. you do not post the User Content on any digital location/platform on behalf of the Brand Owner or their Agency other than that specified in the Campaign Brief.

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.

THE FOLLOWING APPLIES TO AMERICAN CREATORS:

Notwithstanding any other provision in these Terms of Use, you represent and warrant that you will comply with all laws and regulations regarding endorsements or testimonials made by you in any content on the App, including that you will (a) make only accurate statements that represent your genuine experience with any product, good or service; and (b) make all required disclosures pursuant to the Federal Trade Commission’s (FTC) Guides Concerning the Use of Endorsements and Testimonials in Advertising, as such guides may be amended from time-to-time by the FTC. Follow this link for further information on complying with the FTC’ s guidance: https://www.ftc.gov/news-events/media-resources/truth-advertising/advertisement-endorsements

Right to Monitor and Editorial Control

14.

Whilst we reserve the right to monitor messages, material, images or content submitted to the App or any Service, we are not under an obligation to do so. If you believe any person has submitted messages, material, images or content which are objectionable or breach these Terms of Use or any applicable law, please notify us at hello@takumi.com.

15.

We reserve the right to refuse to post, block, alter, edit, remove or delete any messages, material, images or content submitted to the App or any Service which we believe are objectionable or breach these Terms of Use or any applicable law.

16.

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

17.

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.

18.

The trademarks, logos, and service marks displayed on this App are owned by Takumi and other third-parties, and this App’s trade dress is owned by Takumi. All trademarks, logos and service marks not owned by Takumi are the property of their respective owners, and, where used by Takumi, are used with permission. Subject to the rights granted by Brand Owners to Takumi, Takumi hereby grants you a non-exclusive, revocable, worldwide, limited, personal and non-transferable license to Use the Brand Owner Names for the purpose of associating Qualifying Posts with Campaigns in the captions to your Qualifying Posts on a Social Media platform as permitted or required by the Campaign Rules. With the exception of the foregoing, nothing contained in these Terms of Use shall be construed as granting, by implication, estoppel, or otherwise, any right or license to use any trademarks, logos or service marks. Takumi’s trademarks, logos, service marks and trade dress may not be copied, imitated or used, in whole or in part (including use in metatags or in hidden text), without our prior written permission. You agree that you will not take any actions inconsistent with Takumi’s ownership of, or any third party’s ownership of, the trademarks, logos, service marks and trade dress used on this App.

19.

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.

Your Account

20.

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 Social Media Account details.

21.

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 hello@takumi.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.

22.

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

23.

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. The use of and/or ownership in any intellectual property rights in any User Content may be negotiated between you and Takumi in a separate agreement. 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, videos, messages, comments, and other such items.

24.

Each App user shall be provided access to their own Brand Owner advertising campaign feed featuring curated campaigns and 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 the user.

25.

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.

26.

By participating in the Brand Owner’s advertising campaigns on the Takumi App you grant to the Brand Owner (and/or to the Brand Agency for the benefit of the Brand Owner) the royalty-free, non-exclusive, irrevocable, one year licence for the Brand Owner to use your User Content on all digital channels, including but not limited to the Brand Owner’s 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 you and the Brand Owner by negotiating such further use with Takumi’s involvement.

27.

Certain Brand Owner advertising campaigns include free or discounted products or experiences that are essential to participate in the campaign. In cases where Users opt-in to these campaign opportunities, get free or discounted products or experiences, but subsequently drop-out of the campaign or fail to meet the campaign rules, Users are required to return products or refund Takumi the full value of the product or experience received.

User Activity

28.

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.

29.

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 through 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.

30.

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 and at 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.

31.

You acknowledge, consent and agree that Takumi may access, preserve and disclose your account information and any User Content you submit if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any User Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Takumi, their affiliates, their personnel, other users and the public.

Electronic Communications; Privacy Policy

32.

Your use of the App and the Services is also subject to Takumi’ s Privacy Policy at www.takumi.com/privacy, which is incorporated into these Terms of Use by reference. By using the App or the Services, you consent to receiving certain electronic communications from us as further described in the Privacy Policy. Please read the Privacy Policy to learn more about your choices regarding our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

Additionally, you acknowledge, consent and agree that Takumi may access, preserve and disclose your account information and any User Content you submit if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms of Use; (c) respond to claims that any User Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Takumi, their affiliates, their personnel, other users and the public.

Limitation of Liability

33.

NOTHING IN THESE TERMS OF USE SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: (I) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER ENGLISH LAW.

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.

SUBJECT TO THE FIRST PARAGRAPH OF THIS CLAUSE 32, TAKUMI’S MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS OF USE (INCLUDING YOUR USE OF THE APP AND/OR ANY SERVICES) WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE SHALL IN ALL CIRCUMSTANCES BE LIMITED TO £100 (ONE HUNDRED GBP STERLING) FOR NON-AMERICAN CREATORS, OR $100 (ONE HUNDRED UNITED STATES DOLLARS) FOR AMERICAN CREATORS.

Dispute Resolution

34.

THE FOLLOWING TERMS APPLY TO AMERICAN CREATORS:

  1. In the interest of resolving disputes between you and Takumi in the most expedient and cost-effective manner, you and Takumi agree that any dispute arising out of or in any way related to these Terms of Use or your use of the App or Services will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms of Use or your use of the App or Services, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND TAKUMI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
  2. Notwithstanding clause 33.1 above, nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (d) to file suit in a court of law to address an intellectual property infringement claim.
  3. Any arbitration between you and Takumi will be governed by the Federal Arbitration Act and the Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer Related Disputes (collectively, AAA Rules) of the American Arbitration Association (AAA), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Takumi at hello@takumi.com. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
  4. 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., Raich Ende Malter & Co., LLP, 1375 Broadway, 15th Floor, New York, NY 10018, Attn: Mary Keane-Dawson, 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 favour 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.
  5. If you commence arbitration in accordance with these Terms of Use, Takumi will reimburse you for your payment of the filing fee, unless your claim is for more than $15,000 or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York but if the claim is for $15,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Takumi for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. Each party agrees that such written decision, and information exchanged during arbitration, will be kept confidential except to the extent necessary to enforce or permit limited judicial review of the award. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
  6. 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.
  7. Modifications to this Arbitration Provision. Except as otherwise provided in these Terms of Use, if Takumi makes any future change to this arbitration provision, other than a change to Takumi’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to Takumi’s address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Takumi.
  8. If clause 33.6 above is found to be unenforceable or if the entirety of this clause 33 is found to be unenforceable, then the entirety of this clause 33 will be null and void.

Indemnification

35.

THE FOLLOWING TERMS APPLY TO AMERICAN CREATORS:

Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Takumi and its affiliates from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from (a) your breach of these Terms of Use; (b) your User Content; or (c) your access to, use or misuse of the App, the Services, any materials available therefrom or any Takumi trademark. Takumi will provide notice to you of any such claim, suit, or proceeding. Takumi reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification under this clause if Takumi believes that you are unwilling or incapable of defending Takumi’s interests. In such case, you agree to cooperate with any reasonable requests assisting Takumi’s defence of such matter at your expense.

Confidentiality

36.

By using the App and the Takumi Services, you agree not to disclose any confidential information shared with you in the App or via the Takumi team. Confidential Information includes but is not limited to: All Campaign Materials including Brand Names and product details, Campaign rewards (including but not limited to not disclosing Campaign rewards on Social Media or to the Brand and/or Agency), and Platform Content. Material or persistent breach of these terms can result in immediate termination of your use of this App and the Services, and any Campaign rewards will not be claimable.

The Campaign Materials shall be part of the Brand Owner’s Confidential Information.

The Intellectual Property Rights in the Platform and the Platform Content shall be part of Takumi International’s Confidential Information.

Termination

37.

Any agreement may be terminated immediately by written notice to you at any time at our sole discretion, including if:

  • you commit a material or persistent breach of these Terms of Use;
  • we discontinue the App or any of the Services; or
  • your agreement with the Appstore expires or terminates.

38.

On termination of these Terms of Use:

  • all rights granted to you under these Terms of Use shall immediately cease;
  • you must immediately cease all activities authorized by these Terms of Use, including your use of the App and any Services;
  • 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;
  • we may remotely access the Devices and remove the App from all of them and cease providing you with access to the Services;
  • any Campaign rewards will not be claimable; and
  • for the avoidance of doubt, any licences in relation to User Content granted to Brand Owners shall remain in force notwithstanding the termination of these Terms of Use for any reason.

Copyright Infringement Claims

39.

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.

  1. 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.
  2.  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:
  1. 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;
  2. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
  3. 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;
  4. 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;
  5. 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
  6. 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.
  1. 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.
  2. Designated Agent Contact Information. For American Creators, Takumi’s designated agent for receipt of Notifications of Claimed Infringement (Designated Agent) can be contacted at: ⁃ Via E-mail: hello@takumi.com.
  3. 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 38.3 above and include substantially the following information:
  1. your physical or electronic signature;
  2. 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;
  3. 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
  4. 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 38.3 above or an agent of such person.
  1. 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.
  2. 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.
  3. 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 38 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.

General Information

40.

These Terms of Use and our Privacy Policy represents the entire understanding between the parties regarding your use of the App, and supersede all other agreements, express or implied, between you and us relating to the App or your use of the App. These Terms of Use shall not be modified except as provided for herein or except in writing, signed by an authorized representative of Takumi. If any provision of these Terms of Use is determined to be invalid or unenforceable for any reason whatsoever, the remainder of these Terms of Use shall be enforced to the maximum extent possible, and the offending provision shall be treated as though not a part of these Terms of Use. Takumi’s failure to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver of its rights with respect to that breach or any subsequent breach, nor shall it constitute a waiver of any other rights under these Terms of Use. We may transfer our rights and obligations under these Terms of Use to another organisation, but this will not affect your rights or our obligations under these Terms of Use. You may only transfer your rights or obligations under these Terms of Use to another person if we agree in writing.

The official language of these Terms of Use is English, and the official version of these Terms of Use is the English version. Although these Terms of Use may be translated into other languages for informational purposes only, you expressly agree that any such translated version shall be superseded in all respects by the official English version of these Terms of Use.

Events Outside Our Control

41.

We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms of Use that is caused by any act or event beyond our reasonable control, including failure of public or private telecommunications networks (Event Outside Our Control).

42.

If an Event Outside Our Control takes place that affects the performance of our obligations under these Terms of Use: (a) our obligations under these Terms of Use will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and (b) we will use our reasonable endeavours to find a solution by which our obligations under these terms of Use may be performed despite the Event Outside Our Control.

Contact Information

43.

If you have any questions or suggestions regarding these terms and conditions, please contact us at Takumi International Ltd, Waverley House, 9 Noel Street, London, England, W1F 8GQ, or email us at hello@takumi.com.

44.

If we have to contact you or give you notice in writing, we will do so by e-mail or pre-paid post to the e-mail address or postal address you provided in the App.

Law and Jurisdiction

45.

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.

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.

NOTICE REGARDING APPLE. You acknowledge that these Terms of Use are between you and Takumi only, not with Apple, and Apple is not responsible for the Services or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Services to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Services or your possession and use of the Services infringe that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Services. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Use, and upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary of these Terms of Use. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If Takumi provides a translation of the English language version of these Terms, the translation is provided solely for convenience, and the English version will prevail.

Effective: May 26, 2021