Core Terms and Conditions

These Terms and Conditions ("Terms") govern the Quote or Statement of Work ("Statement of Work" or "SOW") referencing these Terms that has been entered into by Moburst US Inc., a New York company (together with its affiliates, "Moburst") and the customer listed therein ("Customer"). These Terms together with the Statement of Work shall constitute the "Agreement". The term "Effective Date" means the date on which Customer enters into the SOW and the term "Services" means the services provided by Moburst under the SOW.

Changes may be made to these Terms from time to time. Customer's continued use of the Services following a change will be deemed acceptance to the amended Terms.

1. Services and Deliverables. During the Term (as defined below), Moburst shall provide Customer with the Services and deliverables as described in the Statement of Work ("Deliverables"). All Deliverables are provided in closed format not readily modifiable by Customer. The meaning of the term "Deliverables" also depends on the service being provided.
   1. For product consulting services, Deliverables means any product designs or specifications created by Moburst in the course of providing the services.
   2. For creative and production services, Deliverables means any works of authorship, including written works, audio-visual works, videos, animations, banners, screenshots and articles created by Moburst in the course of providing the services, excluding raw materials such as PSDs and other assets purchased by Moburst which are not allowed to be transferred based on the license of Moburst with those 3rd party vendors
   3. For influencer marketing services, Deliverables means any works of authorship, including videos, posts, or articles created by influencers engaged on Customer's behalf for the purpose of display on social media platforms.
   4. For creators network services, Deliverables means any works of authorship, including, videos, posts created by creators engaged on Customer's behalf.
   5. For website or mobile app development and maintenance services, Deliverables means any code, text, graphics, multimedia, or other elements developed in the course of the provisions of the services.
      
      
2. Consideration. Customer will pay the fees specified in the SOW, which exclude all applicable taxes, duties, and charges (including transaction fees), which shall be paid by Customer. Unless otherwise agreed in the SOW, payments shall be made upfront, upon receipt of an invoice. Unless otherwise agreed in an SOW, all fees are non-refundable. Late payments shall be subject to a late fee of 12% per annum. Moburst shall have the right to demand reimbursement for reasonable legal expenses incurred in the process of recovering payments, including attorney's fees and court costs.
   
   
3. Representations and Warranties.
   1. Mutual Representations. Each party represents that (a) it has the full authority to enter into and to perform its obligations hereunder and that doing so will not violate any obligation it has to any third party and (b) in fulfilling its obligations hereunder, it will comply with all applicable laws and regulations.
   2. Moburst Representations. Moburst represents that (a) it will perform all Services faithfully, diligently, and with skill and ability in accordance with industry standards; (b) the provision Services will comply with all applicable laws and regulations; (c) to the best of its knowledge, the Deliverables do not infringe any third-party intellectual property rights. The above warranties do not apply to Third-Party Elements or Customer Material (both as defined below).
   3. Customer Representations. Customer represents that: (a) no Customer Material or Trademarks (as defined below) (i) infringe any rights of any third party; (ii) contain any defamatory, libelous, sexual, pornographic or otherwise offensive material; or (iii) contain any viruses, worms or other malware; and (b) it shall not provide Moburst with any Personal Data or Personal Information (both as defined below), unless agreed by the parties in writing and in advance.
      
      
4. Privacy. In the event that Moburst processes any Personal Data (as defined under Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 (General Data Protection Regulation)) or Personal Information (as defined in the California Consumer Privacy Act of 2018, Cal. Civil Code Title 1.81.5, as amended by the California Consumer Privacy Rights Act of 2020) and the regulations thereunder, as may be amended from time to time, the processing of such Personal Data or Personal Information shall be subject to the Data Processing Agreement.
   
   
5. Intellectual Property.
   1. Customer Intellectual Property. Customer may provide Moburst with: (i) certain materials (including Customer-branded material) to be used by Moburst in the provision of the Services and development of the Deliverables ("Customer Material") and (ii) Customer's name, logo, and trademarks ("Trademarks"). Customer has and shall retain all right, title and interest in the Customer Material and Trademarks ("Customer Intellectual Property"). Customer grants Moburst the right to use, copy, modify, create derivative works of, and publish the Customer Material and Trademarks for the purpose of provision of the Services or as otherwise permitted hereunder. Moburst shall use the Trademarks in accordance with Customer's guidelines, as may be provided by Customer.
   2. Moburst Intellectual Property. Moburst has and shall retain all right, title and interest in its name, trademarks, and logos, and its proprietary know-how used to provide the Services ("Moburst Intellectual Property"). Nothing herein shall be deemed to grant to Customer any rights in any Moburst Intellectual Property. Moburst may purchase or license certain elements from third parties, including as requested or directed by Customer ("Third-Party Elements"). If Customer provides Moburst with any feedback concerning Moburst's Services, Moburst shall be free to use such feedback without restriction and shall not be subject to any confidentiality obligations in respect of such feedback.
   3. Rights to Deliverables. Subject to the payment by Customer of all amounts due in connection with the relevant Deliverables, the Deliverables (excluding any Third-Party Elements or raw materials) shall be owned by Customer and Moburst hereby assigns to Customer all such Deliverables, effective after payment of relevant amounts. Notwithstanding the above, with respect to any Deliverables created as part of the Influencer Marketing Services, subject to payment of relevant amounts, Customer shall be granted the right to use and publicize such Deliverables as part of its marketing efforts for a period of 12 months, unless otherwise agreed in the SOW.
      
      
6. Review and Acceptance. Moburst shall provide any agreed Deliverables in accordance with the timelines in the SOW. Customer shall have three (3) days from the date of provision of the Deliverables to examine the Deliverables. If Customer finds that the Deliverables do not conform to the specifications or that they contain material defects, Moburst will redeliver the Deliverables. The above process may be repeated until conforming Deliverables are provided. To the extent that the Deliverables are conforming but Customer would like to request a revision, Customer shall have the right to request one such revision, provided that the request is within the scope agreed in the SOW. To the extent no modifications are requested during the designated period, the Deliverables shall be considered accepted. Moburst shall have no obligation to implement any changes to Deliverables which are not within the scope of the SOW. To the extent Moburst agrees to provide additional modifications beyond the agreed scope, such modifications shall be subject to payment of additional fees at Moburst's standard rate of US$200 per hour plus VAT or other applicable taxes.
   
   
7. Engagement of Influencers and Creators. When providing influencers or creators network services, Moburst will identify and engage directly with relevant influencers and creators for the benefit of Customer, subject to Customer's approval of the selected individuals. It is clarified that both influencers and creators will be engaged directly by Moburst and Customer shall have no contractual relationship with these individuals.
   
   
8. Confidentiality. "Confidential Information" means any business and technical information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") that is identified as confidential or proprietary or which should reasonably be understood to be confidential or proprietary. Confidential Information does not include information which Receiving Party can show (a) is or has become publicly available without its breach of this Agreement; (b) was in its possession prior to disclosure; (c) was provided by a third party having the right to make the disclosure; or (d) is required to be disclosed by law or a court order ("Order"), provided the Receiving Party provides prompt written notice of the Order and cooperates with Disclosing Party as reasonably necessary to limit or eliminate such Order, to the extent permitted by such Order. Receiving Party will not use the Confidential Information of the Disclosing Party except for performance of its obligations under this Agreement. The terms and conditions of this Agreement, including without limitation any pricing terms hereof, shall be deemed the Confidential Information of Moburst. Customer Material shall be deemed Confidential Information of Customer, provided however, that Moburst may publish Customer Material as necessary for provision of the Services and may use any data received from Customer (including but not limited to Customer Material) for its own internal purposes, such as the general improvement of its Services or in order to recommend Services to third parties.
   
   
9. Non-solicitation. Customer agrees that during the Term and for a period of twelve (12) months thereafter, Customer will not, directly or indirectly, employ, hire, cause to be employed or hired, entice away, solicit, or establish a business with any officer, employee, or agent of Moburst, or any other person who is employed or engaged by Moburst (including any influencers engaged on Customer's behalf) within the twelve (12) months immediately prior to such employment or engagement, or in any manner persuade or attempt to persuade any such individual to terminate its engagement with Moburst. Nothing herein will prohibit general solicitations for employment not specifically directed towards personnel of Moburst.
   
   
10. Indemnification.
    1. Moburst Indemnification. Moburst will defend, indemnify, and hold harmless Customer for any damages, losses, costs and expenses resulting from any third-party claims to the extent relating to the incorporation by Moburst of any materials (excluding Customer Material and Third-Party Elements) in a Deliverable that infringes third party copyrights or trade secrets.
    2. Customer Indemnification. Customer will defend, indemnify, and hold harmless Moburst for any damages, losses, costs, and expenses resulting from any third party claims to the extent relating to: (i) the breach by Customer of its representation or warranties hereunder; (ii) infringement of a third party's intellectual property or other rights, including but not limited to relating materials included in the Customer Material, Third Party Elements or Trademarks; (iii) Customer's use or misuse of the Services.
    3. Procedure. The party seeking indemnification will (i) provide the other party with prompt written notice of any claim for which indemnification is sought, (ii) cooperate fully with the indemnifying party at its own expense in defending the claim, and (iii) provided that the indemnifying party diligently defends the claim with reputable and recognized legal counsel, allow indemnifying party to control the defense and settlement of the claim. No settlement may be entered into without the consent of the party seeking indemnification if such settlement would require any action from or impose any obligation on such party. The party seeking indemnification will have the option to participate in any matter or litigation through counsel of its own selection at its own expense.
       
       
11. Disclaimer. Except as expressly set forth herein, all Services and Deliverables are provided on an "As-Is" and "As Available" basis and Moburst disclaims all implied and statutory warranties, including in respect of merchantability and fitness for a particular purpose. Without derogation, Moburst makes no warranty that any Services or Deliverables provided shall be useful to Customer's business or that the Services will result in any or any additional revenue or improve Customer's ranking or traffic.
    
    
12. Limitation of Liability. Moburst shall not be liable, whether in contract, warranty, tort (including negligence), product liability or other theory, to Customer or any other person or entity for any indirect, incidental, special, consequential, punitive, or exemplary damages or damages for loss of profit, reputation, business, or data arising out of this Agreement. In no event shall Moburst's aggregate liability under this Agreement exceed the total amount of fees actually paid by Customer to Moburst for Services (excluding any media spend).
    
    
13. Term and Termination. The SOW shall be in effect as of the Effective Date and shall continue until it expires in accordance with the terms thereof or until it is terminated ("Term"). Either party may terminate the SOW if the other party breaches its obligations and does not cure such breach within five days of the receipt of written notice thereof. Upon termination or expiration of the SOW, (a) Moburst shall cease the provision of all Services and (b) Customer shall make prompt payment of all amounts due, including but not limited in respect of any uncompleted work performed by Moburst and in respect of the minimum SOW term as specified in the relevant SOW. Sections 3-5, 8-12, and 16 shall survive the termination or expiration of this Agreement for any reason.
    
    
14. Relationship. The parties are independent contractors and neither party shall be deemed an employee, partner, agent or joint venture partner of the other. This Agreement is non-exclusive; nothing herein prohibits Moburst from offering similar services to any other party.
    
    
15. Publicity. Customer agrees that Moburst may disclose that Customer is a customer of Moburst, including by displaying Customer's name, logo and improvement statistics on Moburst's website and other marketing materials.
    
    
16. General. This Agreement (including the SOW and these Terms) sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. In the event of a conflict among the documents comprising this Agreement, SOW shall prevail over the body of this Agreement. No amendments or waivers shall be effective unless in writing and executed by both parties. Neither party may assign the Agreement without the other party's prior written consent, provided however that either party may assign all of its rights and obligations hereunder in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of its share capital or assets. Assignments in violation of the foregoing shall be void. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between the parties. This Agreement shall be governed by the laws of the State of New York without regard to conflicts of law provisions thereof. The parties agree that the competent courts in New York, NY shall have exclusive jurisdiction regarding all disputes hereunder, and the parties expressly consent to such jurisdiction. Having agreed to the foregoing exclusive jurisdiction in good faith, the parties hereby waive any challenge to venue and jurisdiction in such courts. Notwithstanding the above, nothing herein shall prohibit Moburst from bringing a claim in any court of competent jurisdiction (i) to seek provisional relief where necessary to prevent the dissemination of Confidential Information or protect its intellectual property or (ii) to recover payment in case of non-payment by Customer. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such part shall be interpreted to give maximum effect to its terms as possible under applicable law, and the remainder of this Agreement shall remain in effect. Moburst may provide notices hereunder to the email address provided by Customer upon registration.