Creators Terms and Conditions

Titanium Terms & Conditions for Creators

Last Modified: December 20, 2022

BY USING TITANIUM SERVICE (AS DEFINED BELOW), WHICH INCLUDES THE MOMENT OF ORDERING A CAMPAIGN AND/OR FIRST ENTRANCE TO THE DASHBOARD (AS DEFINED BELOW), YOU, AS THE CREATOR, AGREE TO BE BOUND BY THESE TERMS & CONDITIONS (“T&C for Creators”) UNLESS EXPLICITLY STIPULATED OTHERWISE IN A SEPARATE AGREEMENT. THESE T&C SHALL APPLY TO ALL RELATIONSHIPS BETWEEN CREATORS AND SE (AS DEFINED BELOW) IN SCOPE OF TITANIUM SERVICE.

THE CREATOR REPRESENTS AND WARRANTS THAT THE PERSON ACTING FOR AND ON BEHALF OF THE CREATOR, WHO USES THE AFOREMENTIONED SERVICE AND AGREES TO T&C FOR CREATORS, IS DULY EMPOWERED TO DO SO AND TO ENTER INTO A BINDING AGREEMENT ON BEHALF THEREOF.

SE PROVIDES TITANIUM SERVICE, A CAMPAIGN MANAGEMENT PLATFORM FOR ADVERTISERS AND CREATORS. THE TITANIUM SERVICE ENABLES ADVERTISERS’ EXECUTION OF A CAMPAIGN WITH CREATORS IN ACCORDANCE WITH THE AGREEMENT (AS DEFINED BELOW). SE HAS NO LIABILITY FOR ENSURING LEGAL COMPLIANCE OF A CAMPAIGN OR ANY CREATIVE GUIDELINES, NOR THE CREATOR(S) PUBLISH AS PART OF THE CAMPAIGN.

Definitions. For the purposes of this T&C for Creators, the following words, terms, and expressions shall have the following meanings, save where the context explicitly requires otherwise:

"Advertiser" – a party contracting with SE and with Creators in the scope of ordering and executing Campaigns. An Advertiser can be either of the following: (i) a direct beneficiary of Campaign, e.g. brand and/or its parent or subsidiary, or (ii) a media agency or media house acting for Advertiser and/or on Advertiser’s behalf.
"Agreement" - the entire understanding stipulating conditions of the provision of Titanium Service by SE to the Creator which governs the order and execution of any Campaign, the use of the Dashboard, or other features made available to the Creator by SE. The Agreement consists of the: (i) T&C for Advertisers, (ii) T&C for Creators, (iii) Creative Guidelines; and (iv) Titanium Website Terms of Service located at https://titanium.streamelements.com/terms.
"Campaign" – predominantly online promotional and marketing activities designed, produced or invented by or for the Advertiser and submitted via the Titanium Service where Creators submit Material for to Advertiser.
"Creative Guidelines" - rules, guidelines, requirements and other conditions provided by the Advertiser in writing (which may include a fixed electronic form) in reference to a given Campaign which the Creator undertakes to follow by taking part in the Campaign. The Creative Guidelines may require SE approval in terms of technical compatibility. The Creator’s compliance with the Creative Guidelines shall qualify as Advertiser’s approval of the Material.
"Creator" or "you" - a user who has successfully registered within the Titanium Service, thus accepting the T&C for Creators, any additional, specific to their terms & conditions or other relevant regulations, as well as applicable Creative Guidelines.
“Dashboard” - a proprietary software originally developed and provided by SE made available to the Advertiser via the Titanium Service, which enables the Advertiser to self-manage the Campaigns, overview the Campaigns, download reports etc.
“Material” - any material submitted to the Advertiser in relation to a Campaign by a Creator, including texts, photos, video or audio clips, any combination thereof or other publications.
“Product” means an item sent or service made available to the Creator in total or in part via a discount by/on behalf of the Advertiser in scope of a Sampling Campaign which should be used according to the Creative Guidelines and is included in Creator’s Remuneration for the participation in the given Campaign, which should be used according to the task given by Advertiser.
“Remuneration” means money, goods, discounts for Products or services due to the Creator in return for their participation in the given Campaign, form and value of which depends on and is determined in Creative Guidelines within the Dashboard8.
"SE" – Live Momentum Ltd., StreamElements Inc., its subsidiaries and affiliates.
"T&C for Advertisers" - the current version of SE Terms of Service for Advertisers, along with the attachments thereto, available through the Dashboard and on https://titanium.streamelements.com, constituting Exhibit A hereto.
"Titanium Service" - means a service provided by SE, involving a campaign management platform enabling the Advertiser to commission Campaign performance by Creators according to the Agreement via the Dashboard.

Titanium Service.

SE provides the Titanium Service enabling the Creator to participate in a Campaign commissioned by the Advertiser in a self-management model, using the access to SE technology (including its communication platform), in compliance with the relevant Creative Guidelines to earn Remuneration.
The Creator can only be granted access to the Titanium Service upon unconditional acceptance of the T&C for Creators and the Agreement. Access to the Titanium Service does not guarantee participation in a Campaign and the decision to ask for joining the Campaign depends solely on the Creator, while the acceptance of the Creator’s participation in a Campaign is at the discretion of the Advertiser.
No obligations are imposed on the Creator to undertake any activities in scope a given Campaign prior to the Creator clicking on the “ACCEPT BRIEF TERMS” button.

The Role of SE.

SE acts solely as intermediary providing Titanium platform in communication between Advertisers and Creators.
For clarity, SE in no case does not verify or supervise any materials provided by the Advertiser or the Campaign and Creative Guidelines, it simply approves compatibility of the Materials within the Titanium Service and technical requirements/functionalities thereof. The Creator should verify whether publishing posts containing advertising matter is permitted under Federal Trade Commission and/or other applicable laws.
All communication between Advertisers and Creators shall be handled through Titanium Platform.

Campaigns.

The Creator shall have the possibility to browse the requirements of individual Campaigns within the Dashboard available to the Creator.
If the Creator considers that any of available Campaigns may be of interest to them, they shall be entitled to conclude an agreement for the participation in such Campaign by clicking on the “ACCEPT BRIEF TERMS” button. By clicking on the “ACCEPT BRIEF TERMS” button, the Creator unconditionally accepts the Creative Guidelines and the Campaign description on the Dashboard. In case of any discrepancies, the Creative Guidelines shall prevail over these T&C for Creators.
Joining request is subject to approval by Advertiser. Advertiser reserves a right to reject the Creator’s participation in a given Campaign without giving any justification for such rejection.
By joining the Campaign, the Creator undertakes to comply with the Creative Guidelines and any other applicable terms, including obligation to meet any deadlines, as well as they accept Renumeration set for the Campaign.
During the Campaign, the Creator undertakes to fulfill Campaign Guidelines and other Campaign requirements and tasks.
The Creator is solely responsible and liable for including additional hashtags or other specific description of the Material as required by applicable provisions of law in his/her jurisdiction.
The Creator is not obliged or entitled to perform any other actions within the framework of Campaign apart from those expressly included in the Creative Guidelines, description thereof or otherwise expressly agreed between the Creator and the Advertiser.
The Advertiser may provide one (1) round of feedback to the draft Material based on the criteria outlined and listed in the Dashboard. Such feedback shall be transmitted to the Creator(s) and Creator(s) shall deliver to the Advertiser the updated Material with such incorporated feedback. In the event that the Advertiser is not satisfied with the updated version of the Material delivered by the Creator(s), the Advertiser shall submit a report for SE’s review; provided, that in the event that SE deems, in its sole discretion, that: (1) the Material complies with the Creative Guidelines, such Material shall be treated as properly delivered for the purposes of Campaign execution measurement, targets delivery and payment (i.e. as if it was approved) and the Creator reserves the right to receive payment of the Renumeration stipulated in the Dashboard for such Material; or (2) the Material does not comply with the Creative Guidelines, the Advertiser shall not be required to pay the Renumeration for such Material.
An approval of the draft Material is a key, one-time activity. The approved Material cannot be subsequently rejected, unless individually explicitly agreed by the Creator otherwise. In case an amendment to an already approved Material is admitted by SE and such amendment results in an increase of Campaign’s cost, SE reserves the right to revise the amount stipulated in the Dashboard by including such cost.
SE shall be entitled (in any such case), but is not obliged, to advise the Creator via the Titanium Service that the particular activities do not qualify for any payment as they are incorrectly performed or are in breach of the Campaign or the Creative Guidelines as the case may be.
SE can temporarily or definitively block the Creator’s account on the Titanium Service or apply other punitive measures if the Creator does not comply with Creative Guidelines or violates the T&C for Creators or other instructions otherwise. In case of violation of provisions referred to in Section 4, the entire Remuneration shall be withdrawn or the Creator shall be obliged to return it, subject to other provisions of T&C for Creators.

Remuneration.

As full and complete consideration for the Materials provided herein, services performed, and the rights granted hereunder by the Creator, the Creator will receive a one-time Remuneration for the Campaign via Tipalti within forty-five (45) days of completion of the Campaign as determined by SE in its sole discretion. For the Creator to receive Remuneration, (i) the Creator must not be in uncured breach, (ii) the Creator must accept these T&C for Creators on the Dashboard of the Titanium Service, (iii) all Materials must be completed and adhere to all requirements, including, but not limited to the Creative Guidelines, and (iv) payment details must be set up in Tipalti (https://strms.net/tipaltisetup) by the Creator.
In the event of a breach by the Creator of this T&C for Creators, the Creator shall not be entitled to the Remuneration or Advertiser may request the Creator to provide makegood Material(s) as determined by Advertiser in its sole discretion.
SE is empowered to modify Remuneration scheme at any time in its sole discretion. Final amount of the due Remuneration shall be determined based on the successful delivery of the Material(s), if any and the Creator’s performance in the Campaign.
SE and/or Advertiser shall accept no liability whatsoever for any errors or inaccuracies in Tipalti, in the bank account information or shipping address, or for missing information in required data provided by the Creator.
Upon receiving any Remuneration for participation in Campaign or other event, the Creator on is obliged to (i) settle and pay any applicable taxes, (ii) fill in and submit tax forms, and (iii) fulfill all tax related and other obligations, applicable in such circumstances according to the laws of his or her country of citizenship or residency.
SE shall not make or be obliged to (i) make any settlements or payments of any taxes or public receivables, (ii) file any documents or forms, (iii) fulfill any other obligations on behalf of the Creator or for their benefit, regardless of the basis for such obligation (contract, laws of the Creator’s country of citizenship or residency). The Creator agrees to fully indemnify and hold SE harmless against any income tax, national insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance or non-performance by the Creator of the obligations applicable to him in the T&C for Creators, the Agreement or applicable law, where such recovery is not prohibited by law. The Creator shall further indemnify SE against all reasonable costs, expenses and any penalty, fines or interest incurred or payable by SE in connection with or in consequence of any such liability, deduction, contribution, assessment or claim or any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Creator or any third party against SE arising out of or in connection with the performance or non-performance of this Agreement by the Creator.

Ownership.

All right, title, and interest into the Materials submitted via the Dashboard hereunder by Creators, including without limitation all copyright and other intellectual property rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers), all exploitation rights therein (including the right to exploit the Materials, in perpetuity, throughout the universe, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised), and all allied, ancillary, and subsidiary rights therein, are hereby assigned to the Advertiser in perpetuity. The Materials have been specially ordered or commissioned by Advertiser, the Materials are works made for hire for Advertiser as defined in Section 101 of the Copyright Act of 1976, and Advertiser is and will be considered the sole and exclusive author of the Materials for all purposes. To the extent the Materials or any part thereof do not qualify as work made for hire, Creators hereby irrevocably assigns, transfers, and otherwise conveys to Advertiser throughout the universe, in perpetuity, all right, title, and interest in and to such Materials submitted to the Dashboard, including all copyrights and other intellectual property rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers), all exploitation rights therein (including the right to exploit the Materials, in perpetuity, throughout the universe, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised), and all allied, ancillary, and subsidiary rights therein.
Advertiser may, in its sole discretion, make any and all changes in, additions to, and deletions from the Materials. The Creator hereby waives the benefits of any provision of law known as “droit moral” or any similar law which the Creator may have in any country of the world and the Creator agrees that the Creator will not institute, support, maintain, authorize or consent to any action or lawsuit on the ground that any version of the Material produced or exhibited by Advertiser in any way constitutes an infringement of the Creator’s “droit moral” or contains unauthorized variations, alterations, modifications, changes or translations, and the Creator hereby indemnifies and holds Advertiser harmless from and against any claim, action, proceeding or demand brought, maintained, prosecuted or made on any such ground by the Creator, or any other person (if the same be brought, made, prosecuted or maintained with the Creator’s consent or permission), and from and against any and all loss, cost or expense incurred by Advertiser, its successors, licensees and assigns in connection therewith, including, but not limited to, attorneys’ fees and costs whether or not litigation is commenced.
Additionally, the Creator agrees that if, in the course of performing the services, the Creator has incorporated into the Materials any pre-existing, materials, notes, records, drawings, designs, products, services, invention, discoveries, original works of authorship, developments, improvements, trade secrets, concepts, and/or other proprietary information or intellectual property right owned by the Creator or in which the Creator has an interest ("Pre-Existing Materials"): (i) Creator will provide Advertiser with prior written notice of Pre-Existing Materials; and (ii) the Creator grants Advertiser a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Pre-Existing Materials in or in connection with the Materials.
Regardless of any contrary provisions of any other agreement (unless explicitly excluding applicability of this given point of the T&C for Advertisers) SE shall be entitled to publicize the fact that the Campaign was performed through Titanium Service. SE may use the Material, the Creator’s logo, the Creator’s name, image and/or likeness, and/or any other IP related to its visual identification for elaboration of its own materials referring to the Campaign such as: case study, report, article, including publication on SE website or social media account, as well as for any marketing and other purposes.
The Creator hereby represents and warrants that they have obtained explicit consent of any third party presented in the Material to publish such Material and to use it for all purposes related to the given Campaign, including granting licenses pursuant to the conditions of these T&C for Creators. The Creator or the third party cannot withdraw their consent for the use of image, name, and/or likeness unless unconditionally binding provisions of applicable law foresee such right that cannot be waived. Should the Creator or a third party withdraw a consent outlined herein, the Creator is obliged to return entire Remuneration they received for the participation in Campaign. The Creator hereby acknowledges that withdrawal their or third party’s consent for use of image, name, and/or likeness may cause severe financial losses to SE and the Advertiser.

Creator’s Obligations.

The Creator undertakes to use the Titanium Service in accordance with the provisions of the Agreement.
The Creator shall not inform any third party about their engagement in Campaigns via the Titanium Service, or any information obtained in connection with the use of the Titanium Service and participation in Campaigns, including, without limitation, any details related to their Remuneration for participating in Campaigns.
The Creator undertakes to monitor the up-to-date information on the Campaign and on changes made to the Titanium Service.
The Creator is solely responsible for specifying the correct information to Tipalti and Advertiser at all times.
The Creator undertakes to indemnify and hold SE and Advertiser harmless against any and all claims for damages, liabilities or any other demands for the payment of compensation arising from the activities of the Creator performed within the framework of the Titanium Service or in the course of performance of obligations related to any Campaign, including, without limitation, any breach of the Creator’s representations, warranties, covenants or obligations contained in this Agreement. The Creator shall compensate any costs or losses caused by the improper, negligent or unauthorized use of the Titanium Service or performance of the Campaign.
The Creator hereby assures that (s)he shall not use the Titanium Service in a manner inconsistent with its purpose, such that it may hinder or prevent anyone, including, without limitation, other Creators from accessing the Titanium Service. In the event of the provision of Titanium Service being placed at risk for reasons specified in the preceding sentence, SE, having first requested the Creator to cease and desist from infringing activities, may suspend the provision of the Titanium Service to such Creator. In cases where an immediate intervention on the part of SE is necessary and where it is impossible to request such Creator to cease and desist from infringing activities first, due the severity of the breach, SE shall be entitled to immediately suspend the provision of the Titanium Service, of which suspension, SE shall promptly notify such Creator.

Creator’s Representations and Warranties.

By entering into the Agreement and registering as a Creator, the Creator warrants that:

They have full right, power, authority, and capacity to enter into contracts or any legal transactions under the laws and regulations of their country of citizenship and residency,
They will comply with all applicable federal, state, and local laws and regulations,
They are at least eighteen (18) years of age or age of legal majority in their laws and jurisdiction of country of citizenship and residency,
All content created, added, interpolated and/or submitted by Creator, including, without limitation the Materials, shall be wholly original to Creator (or shall otherwise be properly licensed by Creator),
Creator's performance of the services hereunder, the Materials, and any elements thereof, do not and will not infringe, misappropriate, or otherwise violate the intellectual property, privacy, or publicity rights of any third parties or constitute defamation thereof,
the Materials shall not contain any vulgarity, offensive language, profanity, graphic content, or lewd acts, statements, images or materials,
All services rendered by Creator shall be performed in accordance with the Federal Trade Commissions Guides Concerning Endorsements,
There are no legal or factual obstacles to the conclusion of the Agreement, and
All conditions necessary for such registration to be successful, valid, lawful and compliant with the Agreement are fulfilled.

The Creator represents and warrants to each of the Advertiser and SE that they have read, and understood and accepts the provisions of the Agreement, as well as other provisions of these T&C for Creators, the T&Cs for Advertisers, and Creative Guidelines applicable to a particular Campaign.
The Creator shall be solely responsible for the consistency of their actions, including the originality of their content, performed within the framework of the Titanium Service or the Campaign with the laws and regulations of their country of citizenship, residency. If any official permission, governmental license is required for the Material, the Creator is solely responsible for obtaining it and acting in accordance with its terms.
The Creator shall be solely responsible for verifying whether the publication of specific information which forms the subject of the Campaign is permissible and consistent with the laws and regulations of their country of citizenship/residency.
The Creator hereby acknowledges that in the event that a person without capacity to enter into legal transactions (or with restricted capacity to enter into legal transactions) purports to enter into the present Agreement, the Agreement shall not be concluded unless the parents or legal guardian agree for such Agreement to be concluded. The Creator shall be liable for any losses incurred by SE which arise, whether directly or indirectly, from a party without the appropriate legal capacity from entering into this Agreement.
The Creator shall be responsible for the proper performance of the obligations imposed within the framework of the given Campaign and shall bear any and all costs arising from the performance of their obligations in the course of such Campaign. It is up to the Creator to establish what such costs are, prior to agreeing to undertake a Campaign.

Data Protection and Privacy.

Our privacy policy found at https://streamelements.com/privacy (“Privacy Policy”) and any other documents referred to therein sets out the basis on which any personal data SE collect from a Creator, or that a Creator provide to SE, will be processed by SE (including transfer thereof to third parties, such as Advertisers).
By visiting https://titanium.streamelements.com, the Creator accepts and consents also to the practices described in the Privacy Policy. The Creator agrees that their personal data, including contact details, may be transferred to the Advertisers, if requested.
SE is a data controller for any personal data provided by the Creator and controls such data according to its Privacy Policy. SE has its own Data Protection Officer (DPO) assigned to supervise any personal data flow process.

Liability.

EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SE MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. SE DOES NOT WARRANT THAT THE TITANIUM SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CREATORS IN CONNECTION WITH THE PROVISION OF THE TITANIUM SERVICE.
SE shall accept no liability whatsoever for any costs or losses incurred by the Creator in connection with the performance of their obligations arising in connection with the participation in the Campaigns. SE shall accept no liability whatsoever for any losses or lost profits including indirect losses incurred by the Creator in the use of the Titanium Service.
SE is not responsible for nonpayment of Remuneration in the lack of payment by the Advertiser.
SE does not guarantee proper operation of the Titanium Service. SE makes the Titanium Service available “as is”; although the Titanium Service has been tested and provides the intended functionalities, SE makes no warranties as to the proper functioning thereof.
SE shall accept no liability whatsoever for any interruptions in the access to the Titanium Service, for any instances of breach or loss of data in its information processing system, for any defects of the security system or for the operation of viruses and other harmful software components during the use of the Titanium Service.
SE shall accept no liability whatsoever for any costs or losses incurred by the Creator in connection with the performance of their obligations arising in connection with the participation in the Campaigns.
None of the previous provisions serve to exclude or restrict liability for death or personal injury caused by the negligence or by fraudulent misrepresentation of SE.
Complaints submitted by the Creator in connection with non-performance or improper performance of the Agreement by SE must be sent by Creator to SE by e-mail to the address: [email protected] or in writing, to the address of the registered office of SE. SE shall endeavor to respond to any complaint as quickly as possible. SE's ability to respond will be dependent on the nature and complexity of the complaint, the extent to which SE can contact the Creator to get information on the complaint and the extent to which SE needs to obtain information from a third party relevant to the complaint to frame a response. Subject to the terms of the Agreement, SE will make reasonable efforts to find a satisfactory solution to the complaint. If the complaint relates to the Advertiser, SE will forward the complaint to the Advertiser with a request that the Advertiser contacts the Creator.

Intellectual Property Rights.

SE remains the owner of or an entity entitled to all copyrights, trademarks, intellectual property rights and other rights related to the Titanium Service.
Any text, data, graphics, pictures, logos, photos, files and any other materials included on the Titanium website or as well as the selection, arrangement, coordination and compilation of materials and the overall appearance and character of the website are the intellectual property of SE or their respective owners. They are protected under copyright, design right, patents, trademarks or under other provisions, including the provisions of international conventions as well as provisions of the law of intellectual property.
The Agreement does not form the basis for the acquisition by the Creator, in any manner whatsoever, of any rights or licenses, save for the right to use the Titanium Service.

Changes to the T&C for Creators.

SE can amend these T&C from time to time.
The Creator should look at the top of the first page to see when these T&C for Creators were last updated and which terms were changed. The T&C for Creators at the time shall apply and be in force when activities commence for a Campaign.
SE may also revise these T&C for Creators as they apply to a particular Campaign undertaken by a Creator from time to time to reflect the following circumstances: (i) changes in relevant laws and regulatory requirements; (ii) the need to adjust the activities of SE to the obligations, rulings, decisions, determinations or guidelines of any regulatory authority or arising from, the decision of a public administration authority having jurisdiction with respect to the activities of SE or arising from a court judgement applicable to the activities of SE, having an impact on the mutual rights and obligations laid down in the Agreement; (iii) a change in the manner of the provision of the electronically supplied services by SE arising exclusively due to technical or technological reasons; or (iv) change in the scope or rules of the provision by SE of the Services to which the provisions of the Agreement apply through the introduction of new functionalities or services or the modification or removal by SE of existing functionalities or part of the Titanium Service, where such functionalities or Titanium Service are covered by the Agreement and offered to the consumer.
If SE revises these T&C for Creators, SE will inform the Creator about such revision of T&C by publishing relevant information on the Titanium website or via e-mail. In such event, a Creator shall have the right to terminate the Agreement within the period of fourteen (14) days following the date on which the Creator have or reasonably could have acknowledged such notification of the changes made to these T&C for Creators by properly informing SE about such termination e.g. by sending relevant message to [email protected]. If the Creator continues to use the Titanium Service, they will be deemed to have accepted the revised T&C for Creators.

Withdrawal, Term And Termination Of The Agreement.

The Agreement enters into force following the registration of the Creator on the Dashboard.
The Creator shall have the right to withdraw from the Agreement or terminate the Agreement, and hence the Titanium Service, via contacting [email protected] without the obligation to state the reasons for such withdrawal or termination at any time, provided, that the Creator shall not be entitled to any portion of the Renumeration in the event of such withdrawal or termination.
SE may not accept a Creator who withdrew from the Titanium Service for any reason in its sole discretion.
SE reserves the right to terminate the Agreement and the Creator’s access to the Titanium Service immediately with our without cause.
SE shall promptly notify the Creator of the termination of the Agreement via email. The Agreement shall expire immediately following the termination thereof; from that moment onwards, the Creator shall not be entitled to any Remuneration for participation in Campaigns.
SE reserves the right to modify, update, change or discontinue the Titanium Service, thereby terminating this Agreement, at any time in its sole discretion.

Miscellaneous.

The Creator may not assign their rights or obligations arising hereunder, whether in whole or in part, to any third parties without the prior consent of SE expressed explicitly in writing otherwise being null and void.
The conclusion of the Agreement does not give rise to an employment relationship or the establishment of a partnership and may not be treated as such. The relationship of the Creator to SE will be that of service-user and nothing in this Agreement shall render the Creator an employee, worker, agent or partner of SE and the Creator shall not hold themself out as such.
Should any of the provisions or any part of the Agreement become invalid or unenforceable to any extent whatsoever, the Parties shall agree upon any necessary amendments to the Agreement which shall ensure that the interests and aims of the parties prevailing at the time of performance of the Agreement are given effect.
The Agreement and the other SE policies incorporated into this Agreement by reference sets forth the entire agreement between the parties and supersede all other arrangements, agreements and/or memoranda (whether made in writing or orally) made between the parties, pertaining to the obligations and liability of SE with regard to the provision or implied provision, non-performance or delays in the performance of any services rendered under the Agreement, unless explicitly stipulated otherwise therein.
In the event of any disputes arising hereunder, the parties shall make reasonable efforts towards reaching a resolution by way of mediation. This Agreement will be governed by the internal laws of the State of California applicable to contracts wholly negotiated, executed, and performed therein. The parties agree that all disputes arising hereunder shall be submitted to binding arbitration, before a single neutral arbitrator, in accordance with the provisions of the California Code of Civil Procedure. The Creator agrees that the arbitrator's ruling in the arbitration shall be final and binding and not subject to appeal or challenge. The language of the arbitration shall be English.

Exhibit A: Titanium Terms & Conditions for Advertisers as of December 20, 2022

Titanium Terms & Conditions for Advertisers

Last Modified: December 20, 2022

BY USING TITANIUM SERVICE (AS DEFINED BELOW), WHICH INCLUDES THE MOMENT OF ORDERING A CAMPAIGN AND/OR FIRST ENTRANCE TO THE DASHBOARD (AS DEFINED BELOW), YOU, AS THE ADVERTISER, AGREE TO BE BOUND BY THESE TERMS & CONDITIONS (“T&C for Advertisers”) UNLESS EXPLICITLY STIPULATED OTHERWISE IN A SEPARATE AGREEMENT. THESE T&C SHALL APPLY TO ALL RELATIONSHIPS BETWEEN ADVERTISERS AND SE (AS DEFINED BELOW) IN SCOPE OF TITANIUM SERVICE.

THE ADVERTISER REPRESENTS AND WARRANTS THAT THE PERSON ACTING FOR AND ON BEHALF OF THE ADVERTISER, WHO USES THE AFOREMENTIONED SERVICE AND AGREES TO T&C FOR ADVERTISERS, IS DULY EMPOWERED TO DO SO AND TO ENTER INTO A BINDING AGREEMENT ON BEHALF THEREOF.

Definitions. For the purposes of this T&C for Advertisers, the following words, terms, and expressions shall have the following meanings, save where the context explicitly requires otherwise:

"Advertiser" or "you" – a party contracting with SE and with Creators in the scope of ordering and executing Campaigns. An Advertiser can be either of the following: (i) a direct beneficiary of Campaign, e.g. brand and/or its parent or subsidiary, or (ii) a media agency or media house acting for Advertiser and/or on Advertiser’s behalf.
"Agreement" - the entire understanding stipulating conditions of the provision of Titanium Service by SE to the Advertiser which governs the order and execution of any Campaign, the use of the Dashboard, or other features made available to the Advertiser by SE. The Agreement consists of the: (i) T&C for Advertisers, (ii) T&C for Creators, (iii) Creative Guidelines; and (iv) Titanium Website Terms of Service located at https://titanium.streamelements.com/terms.
"Campaign" – predominantly online promotional and marketing activities designed, produced or invented by or for the Advertiser and submitted via the Titanium Service where Creators submit Material for to Advertiser.
"Creative Guidelines" - rules, guidelines, requirements and other conditions provided by the Advertiser in writing (which may include a fixed electronic form) in reference to a given Campaign which the Creator undertakes to follow by taking part in the Campaign. The Creative Guidelines may require SE approval in terms of technical compatibility. The Creator’s compliance with the Creative Guidelines shall qualify as Advertiser’s approval of the Material.
"Creator" - a user who has successfully registered within the Titanium Service, thus accepting the T&C for Creators, any additional, specific to their terms & conditions or other relevant regulations, as well as applicable Creative Guidelines.
“Dashboard” - a proprietary software originally developed and provided by SE made available to the Advertiser via the Titanium Service, which enables the Advertiser to self-manage the Campaigns, overview the Campaigns, download reports etc.
“Material” - any material submitted to the Advertiser in relation to a Campaign by a Creator, including texts, photos, video or audio clips, any combination thereof or other publications.
"SE" – Live Momentum Ltd., StreamElements Inc., its subsidiaries and affiliates.
"T&C for Creators" - the current version of SE Terms of Service for Creators, along with the attachments thereto, available through the Dashboard and on https://titanium.streamelements.com, constituting Exhibit A hereto.
"Titanium Service" - means a service provided by SE, involving a campaign management platform enabling the Advertiser to commission Campaign performance by Creators according to the Agreement via the Dashboard.

Titanium Service.

SE provides the Titanium Service enabling the Advertiser’s order and execution of Campaign(s) in a self-management model, using the access to SE technology (including its communication platform).
The Titanium Service predominantly consists of:

Creation, set-up, maintenance and management of an account within the Dashboard;
License for using Titanium Service, enabling the Advertiser to use, in particular, the following functionalities:

Self-maintenance and self-management of an account within the Dashboard;
Campaign planning and forecasting;
Pre-selection of the parameters for the Creators for the Campaign based on Advertiser criteria provided via the Dashboard;
Outlining Creative Guidelines and any particular terms applicable to the Campaign in the Dashboard;
Self-management of Campaign(s) through the Dashboard; and
Access to a Campaign performance summary.

Facilitating self-management of a Campaign by making Dashboard available to the Advertiser.

In connection with a Campaign, and provided that the Advertiser fulfills its obligations hereunder, the Advertiser shall receive:

Campaign executed by applicable Creators; and
Applicable rights to Material approved by the Advertiser in accordance with Section 7.

While SE uses its best efforts to involve Creators who are appropriate for the Campaign, the Advertiser agrees that SE shall have no responsibility for any acts or omissions of the Creators. SE is not responsible or liable for any Material, its fitness for any purpose, completeness, compliance with the Creative Guidelines, legality and/or compliance with any applicable rules or good morals. The Advertiser must verify on its own whether publishing Material and/or executing the Campaign is permitted under applicable laws or compliance with the rules of a any social media platform. In case of any claims made by third parties (including Creators) against SE, resulting directly or indirectly from a breach or alleged breach of the T&C for Advertisers by the Advertiser, the Advertiser shall indemnify, defend, and hold harmless SE and substitute it in any official proceedings including court proceeding.
The Dashboard shall be the main channel for communication referring to the Campaign moderation and management as further described in Section 4. The Advertiser shall be solely liable for any communication through other the Dashboard such as electronic messages (e-mail or other instant messages) or any shared electronic documents.
Functionalities and features available to the Advertiser within the Titanium Service are subject to reasonable usage in a good faith.
Any communication and contracting in regard to Campaign and Creative Guidelines shall take place between the Advertiser and the Creators directly.
The Advertiser is solely responsible for establishing the Creative Guidelines for Creators’ participation in a given Campaign and conclusion of a binding contract covering such terms.

Advertiser’s Obligations.

The Advertiser is solely responsible for the effective delivery of properly completed Creative Guidelines, including any creative brief, containing all details relevant to the given Campaign. The Advertiser cannot hold SE nor Creator(s) liable for consequences or failure to include all significant details and requirements in the Creative Guidelines.
The Advertiser is obliged to pay for the Titanium Service the amount stipulated in the Dashboard as outlined in Section 6.
In the event that a Campaign involves a product and/or service, either provided by the Advertiser or arranged by the Creator upon cost reimbursement (“Sampling Campaign”), SE shall not be liable for successful delivery of the product to the Creator, collection of the product from the Creator and/or its successful return to the Advertiser. The Advertiser shall arrange products and their shipment or make available the services that are to be used in the Sampling Campaign. The Advertiser cannot hold SE nor Creator(s) liable for consequences of failure to ensure products/services availability to the Creators in case such products/services should be used in the Campaign. SE does not warrant the product quality, nor is it responsible for its proper functioning or any damages related thereto. In case Campaign execution is impeded due to failure to ensure products/services availability to the Creators, such Campaign may be deemed delivered and fully payable to SE, the full amount stipulated in the Dashboard.
The Advertiser is obliged to verify and obey binding provisions of law, the applicable codes of good market practices, in particular those regarding the media and advertising industries, as well as good morals in relation to all Campaigns and Parties’ cooperation in general.
If the Advertiser is not a direct beneficiary of the Campaign (e.g. an agent of a brand), the Advertiser is obliged to duly inform the brand about these T&C for Advertisers and obtain all consents and/or licenses necessary to properly execute the Agreement and the Campaign. Such consents and/or licenses must be granted in a relevant form. The Advertiser shall be solely liable for violation of this obligation at the same time indemnifying either/both SE and/or Creators from any liability resulting from such violation.

Dashboard.

The Advertiser may receive access to the Dashboard through an individual account set up by SE or by the Advertiser itself, provided that such functionality is agreed on, available and offered by SE.
The Advertiser undertakes to provide and keep up to date, current, and complete information included in its Dashboard or Dashboard account (e.g. company name and address, tax identification number).
SE may suspend and/or close the Dashboard or Dashboard account of the Advertiser at its sole discretion in case of the Advertiser’s breach or alleged breach of the Agreement or other important reasons, technical issues, usefulness of the Dashboard for the purposes of the Agreement or business decision of SE to resign Advertiser from Dashboard feature.

SE shall inform the Advertiser of any such intended account closure with reasonable advance notice, depending on the given circumstances. The Advertiser shall take record (download) of any of its proprietary data and information. SE takes no responsibility for the accessibility of the data proprietary to the Advertiser after the aforementioned account closure.
For avoidance of doubt any information or data related to Creators and their accounts, any technology, trademark, visual and UX features of Titanium Service, of the brand panel or of the Dashboard, and any other characteristic specific thereto are proprietary to SE and the Advertiser does not acquire any right (any license) to use it or take record of it, neither while using the Titanium Service nor in relation to the aforementioned account closure.

By accessing the Dashboard or Dashboard for the first time the Advertiser confirms unconditional acceptance of these T&C for Advertisers.
Through the Dashboard, within Titanium Service, the Advertiser may:

Manage the number of Creators deemed suitable for the given Campaign;
Review and supervise the Material in a self-management model;
Overview the Campaign performance;
Receive and/or generate Campaign performance report; and
Overview certain Campaign data available at a given moment.

Dashboard features and functionalities are subject to constant development. Availability of data within the Dashboard and Dashboard, its layout and operation are subject to change at SE’s sole discretion and any change does not constitute an amendment of the Agreement.
The Advertiser is responsible for keeping confidential the password to its Dashboard account, as well as the password to any sub-user account. The Advertiser will notify SE immediately of any unauthorized or non-compliant access or use (or suspected unauthorized or non-compliant access or use) of its Dashboard account or sub-user account(s), and will cooperate with SE to stop it and avoid future occurrence of such events. In such a case the Dashboard account along with sub-user account(s) may be immediately suspended or closed as described in Section 4.c. The Advertiser is liable for any consequences of unauthorized or non-compliant access to the Dashboard account or sub-user accounts, including for any activities within the Dashboard such as Material approval (as described in Section 5.k), provided that such unauthorized or non-compliant access was not due to sole fault of SE.
SE protects data submitted through the Dashboard account by implementing relevant security procedures. SE reserves the right to enhance, amend and update its security procedures. Notwithstanding this, the Advertiser should be aware that there are certain risks associated with internet protocol communication. The Advertiser acknowledges that the internet is a media over which SE has no control. SE expressly disclaims, in so far as legally permissible, responsibility for any interception of any communications and data or consequent loss or damage suffered by the Advertiser arising out of the loss or delay of Advertiser’s communications and data over the internet.

Campaigns.

By launching a Campaign the Advertiser re-confirms unconditional acceptance of these T&C for Advertisers.
Within the Titanium Service, the Advertiser orders a Campaign by submitting a complete description of the desired Campaign, Creative Guidelines and the number of Material(s), unless agreed otherwise. No changes can be made to the Campaign description, Creative Guidelines, or the number of Material(s) after submission, unless agreed otherwise. Acceptance of any Campaign shall be determined in SE’s sole discretion.
Following SE’s acceptance of a Campaign, SE shall accumulate Creator(s) for Advertiser to engage to deliver the Material(s) based upon the Creative Guidelines and/or parameters the Advertiser prepares, and, unless SE and Advertiser agree otherwise.
After submission of a Campaign, Creative Guidelines and the number of Material(s) via the Dashboard, the full amount of payment shall become due to SE. If the Advertiser wishes to resign, suspend, or terminate the Campaign, SE reserves the right to retain the full amount stipulated in the Dashboard.
Each Campaign shall require Creators to deliver Material(s) by submitting it via the Titanium Service for digital publication (or any other use within the scope of the applicable assignment of rights) by the Advertiser.
SE reserves the right to refuse Campaign’s launch and/or to terminate any ongoing Campaign in the event of a breach of applicable laws or regulations, applicable social media platform rules or terms of service, any other material breach of the Agreement, or for any other reason it may deem appropriate. SE may, at its sole discretion, intervene in the process of such communication, introduction of Creative Guidelines, or launch of a particular Campaign, if it deems such contradictory to law, good morals, or other applicable codes of conduct. The aforementioned prerogative creates no obligation of SE whatsoever to review nor to supervise the foregoing processes, nor creates any liability of SE in case of Advertiser’s breach or alleged breach of the Agreement.
The Creative Guidelines shall include a creative brief, guidelines, and other requirements for the Material creation and its publication (“Brief”).

Brief and Creative Guidelines shall include any measurable and objective criteria by which Advertiser will deem all Material acceptable. All other requirements shall be treated as non-binding guidelines non-fulfilment of which cannot constitute a reason for rejection of such Material.
Brief should indicate type and description of Campaign (as described in Section 5.a).
For Sampling Campaign, Brief must indicate whether gratis product and/or services would be a part of the fee outlined in the Dashboard.
The Creative Guidelines and Brief, once submitted, are deemed final and no amendments thereto shall be accepted or executed, unless individually and explicitly agreed otherwise as confirmed via the Dashboard. In case an amendment to the Creative Guidelines is admitted by SE and such amendment results in an increase of Campaign’s cost, SE reserves the right to revise the amount stipulated in Dashboard by including such cost.
Brief and other Creative Guidelines are submitted in order to share them with Creators and in no case shall SE be responsible for Creator’s non-compliance to the conditions stipulated therein. Moreover, the Advertiser acknowledges that sharing the Creative Guidelines and Brief is necessary for the execution of the Agreement by SE and can in no case be deemed violation of any additional contractual terms between the Advertiser, the Advertiser and SE.

Draft Material created by the Creators as execution of a Campaign shall be subject to review by the Advertiser. The Creators are liable for delivering Material compliant with the Creative Guidelines’ measurable and technical requirements outlined in the Dashboard.

Draft Material is delivered to the Advertiser by uploading it to the Dashboard (deemed delivered upon successful upload), unless otherwise mutually agreed between the Advertiser and SE in writing.
Review of the draft Material shall be processed through the Dashboard, unless otherwise mutually agreed between the Advertiser and SE in writing.
Titanium Service may, where applicable, verify specific technical criterion of the Material for consistency with the Creative Guidelines (e.g. file type, photo or video resolution, or length of text). SE shall not be liable for verification of consistency of Material with the Creative Guidelines that refer to non-measurable criteria.
The Advertiser shall be solely responsible for verifying the Material’s compliance with the Creative Guidelines, Brief and to the Campaign’s purpose. The Advertiser has seven (7) days to request feedback on Material or accept without changes. Material is deemed approved, if no comment is made by the Advertiser within seven (7) days of delivery (implied approval).
The Advertiser may provide one (1) round of feedback to the draft Material based on the criteria outlined and listed in the Dashboard. Such feedback shall be transmitted to the Creator(s) and Creator(s) shall deliver to the Advertiser the updated Material with such incorporated feedback. In the event that the Advertiser is not satisfied with the updated version of the Material delivered by the Creator(s), the Advertiser shall submit a report for SE’s review; provided, that in the event that SE deems, in its sole discretion, that: (1) the Material complies with the Creative Guidelines, such Material shall be treated as properly delivered for the purposes of Campaign execution measurement, targets delivery and payment (i.e. as if it was approved) and SE reserves the right to receive payment of the full amount stipulated in the Dashboard for such Material; or (2) the Material does not comply with the Creative Guidelines, the Advertiser shall not be required to pay the cost for such Material.
An approval of the draft Material is a key, one-time activity. The approved Material cannot be subsequently rejected, unless individually explicitly agreed by Creator otherwise. In case an amendment to an already approved Material is admitted by SE and such amendment results in an increase of Campaign’s cost, SE reserves the right to revise the amount stipulated in the Dashboard by including such cost.

Once Material is fully approved and delivered in accordance with Section 5.j., and full payment therefor is made in accordance with provisions of Section 6.1, all rights shall be assigned to Advertiser as described in Section 7. In case the Advertiser is not a direct beneficiary of a Campaign the assignment is granted to the direct beneficiary of the Campaign, usually brand owner.
SE may provide a Campaign timeline with indicated periods/dates for each milestone activity, such as selection of Creator(s), Material revision process, subject to Section 5.j or Campaign launch. Failing to follow the given timeline by the Advertiser could result in a respective shift of each subsequent milestone activity in a Campaign timeline or, in certain cases, it may render the Campaign incapable of completion. In case proper Campaign execution was impeded due to failure to follow the given timeline by the Advertiser, the Campaign is deemed properly delivered and SE reserves the right to receive payment of the full amount stipulated in the Dashboard. If the shift in Campaign timeline results in an increase of such a Campaign cost, SE reserves the right to revise the amount stipulated in the Dashboard by including such cost.
The payment of any fees owed to the Creators for full and complete performance of their services and provision of the Material accepted by Advertiser is provided as part of the Titanium Service.
SE is entitled, in its sole discretion, to terminate the ongoing Campaign. If such a termination is not attributable to Advertiser related circumstance, including those explicitly indicated in the Agreement, SE shall reduce the payment indicated in the Dashboard proportionally to the part of the Campaign already executed.

Payment.

The Dashboard shall outline the cost per one piece of Material created and delivered to the Advertiser without any publication included.
The fees related to Advertiser’s licensed use of the Titanium Service and the executed Campaign are payable by the Advertiser to SE based on an invoice, within thirty (30) days of the invoice issuance, unless agreed otherwise, in particular through indication of different payment period on the Dashboard and/or the invoice itself. The invoice shall be issued for the amount indicated in the Dashboard accounting for appropriate adjustments made in accordance with the Agreement, with VAT added if applicable.
The Creators remuneration (for their performance at the Campaign and assignment of rights to the Material) is paid directly by SE after SE receives payment from the Advertiser as stipulated in Section 6.1.
Should the Advertiser fail to pay all fees or make available to the Creators in due time products and/or services, SE reserves the right to renounce the Campaign outlined in the Dashboard (resulting in a withholding implementation of such Campaign). Notwithstanding the foregoing, SE unconditionally reserves its right to receive payment of the full amount stipulated in the Dashboard.
In case of persistent obstruction of Campaign execution by the Advertiser, including by rejecting draft Material based on subjective, non-measurable or not specified criteria, rejection of more than 50% of draft Material (according to Section 5.k), through amendments to already submitted brief, the Campaign is deemed properly executed. In such a case SE reserves the right to payment of the full amount stipulated in the Dashboard.

Ownership.

All right, title, and interest into the Materials submitted via the Dashboard hereunder by Creators, including without limitation all copyright and other intellectual property rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers), all exploitation rights therein (including the right to exploit the Materials, in perpetuity, throughout the universe, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised), and all allied, ancillary, and subsidiary rights therein, are hereby assigned to the Advertiser in perpetuity. The Materials have been specially ordered or commissioned by Advertiser, the Materials are works made for hire for Advertiser as defined in Section 101 of the Copyright Act of 1976, and Advertiser is and will be considered the sole and exclusive author of the Materials for all purposes. To the extent the Materials or any part thereof do not qualify as work made for hire, Creators hereby irrevocably assigns, transfers, and otherwise conveys to Advertiser throughout the universe, in perpetuity, all right, title, and interest in and to such Materials submitted to the Dashboard, including all copyrights and other intellectual property rights therein (including all extensions and renewals thereof, all reversion rights therein, and the right to register and sue to enforce such copyrights against alleged and actual infringers), all exploitation rights therein (including the right to exploit the Materials, in perpetuity, throughout the universe, in any and all media and by any and all technologies and means of delivery whether now or hereafter known or devised), and all allied, ancillary, and subsidiary rights therein.
Additionally, Creator agrees that if, in the course of performing the services, Creator has incorporated into the Materials any pre-existing, materials, notes, records, drawings, designs, products, services, invention, discoveries, original works of authorship, developments, improvements, trade secrets, concepts, and/or other proprietary information or intellectual property right owned by Creator or in which Creator has an interest ("Pre-Existing Materials"): (i) Creator will provide Advertiser with prior written notice of Pre-Existing Materials; and (ii) Creator grants Advertiser a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Pre-Existing Materials in or in connection with the Materials.
Regardless of any contrary provisions of any other agreement (unless explicitly excluding applicability of this given point of the T&C for Advertisers) SE shall be entitled to publicize the fact that the Campaign was performed through Titanium Service. SE may use the Material, the Advertiser’s logo and/or any other IP related to its visual identification for elaboration of its own materials referring to the Campaign such as: case study, report, article, including publication on SE website or social media account, as well as for any marketing and other purposes.

Liability.

EXCEPT AS REPRESENTED IN THIS AGREEMENT, ALL MATERIALS DELIVERED TO THE ADVERTISER ARE PROVIDED “AS IS”. SE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE IN THIS AGREEMENT, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL SE BE LIABLE TO THE ADVERTISER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF THIS AGREEMENT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SE'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SE PURSUANT TO THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Miscellaneous.

SE acts in compliance with all applicable obligatory law provisions.
SE strictly follows the provisions of Regulation (EU) 2016/679 (GDPR).

SE has its own Data Protection Officer (DPO) assigned to supervise any personal data flow process.
SE is a data processor for any personal data provided by the Advertiser, and processes such data according to the privacy policy found at https://streamelements.com/privacy. For administration as well as for transfer of such data the Advertiser shall conclude appropriate agreements and arrange appropriate consents.

While providing the Titanium Service, SE delivers its know-how, sensitive and confidential information, entrusts its reputation and business relationship with the Advertiser and uses its best efforts to provide high standard services. Any information or skill gained by the Advertiser through the use of the aforementioned services shall not be used in a bad faith, exploited for growing a competitive business or otherwise mishandled. In particular, the Advertiser shall not contract with Creators in a way that jeopardizes SE business and/or its relationship with the Creators. If the Advertiser uses any data, materials or other information provided by SE without effecting payment for it, such use may constitute an infringement of SE rights and be subjected to contractual penalty of double the Dashboard amount, or otherwise calculated in case no such amount had been defined. In case of any claims made by Creator(s) referring to aforementioned infringement the Advertiser shall, as far as possible, indemnify SE and substitute it in any official proceedings including court proceeding. Notwithstanding the above SE shall be entitled to seek recovery of any loss and damages caused by the aforementioned infringement on a regular basis.
The Advertiser represents and warrants that the person acting for and on behalf of the Advertiser, concluding the Agreement with SE is duly empowered to represent the Advertiser and enter into a binding agreement on behalf thereof.
Nothing in this Agreement will be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between the Parties for any purpose. The Advertiser shall have no right or authority to enter into any contractual obligations or make any representation in the name of or on behalf of SE. SE does not grant to the Advertiser any right of representation. Any offer of the Titanium Service that the Advertiser makes to any third party is deemed to be at Advertiser’s sole risk and SE shall not be bound by any such offer. Any terms of resell of the services shall be agreed upon through a separate agreement.
SE shall not be liable or responsible to the Advertiser, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond SE’s reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, other potential disasters(s) or catastrophe(s), such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of SE.
SE reserves the right to refuse the Agreement conclusion or terminate concluded Agreement on its sole discretion with such termination effective upon completion of already launched Campaigns, save for the provision of Section 5.n. In case of a closure of a Dashboard account due to material breach of the Agreement by the Advertiser (or its Advertiser), SE may terminate the Agreement, while retaining the already made payments for the current Campaign(s) (in particular in purpose of covering any potential damage related to such breach).
SE reserves the right to amend T&C for Advertisers at its sole discretion. Any amendments shall be announced by publishing a new updated version of the T&C for Advertisers on the website, through the Dashboard, or by otherwise making it available to the Advertiser.
Omitting, failing, or waiving to exercise any right derived from hereof Agreement does not constitute waiver for any proceeding or subsequent event, nor shall any waiver constitute a continuing waiver.
The Agreement’s term lasts as long as the Titanium Service is provided, but no shorter than from the first entrance to the Dashboard or submission of a Campaign description, whichever occurs earlier (effective date), until the closure of the Advertiser’s account at Dashboard (termination date). In any case the term lasts from explicit conclusion of an individual agreement by the Advertiser and SE till explicit termination thereof, either by the Advertiser or by SE.
Upon the expiration or termination of this Agreement, all provisions of this Agreement which expressly or by necessary implication survive the expiration or earlier termination of the term shall survive the execution, delivery, suspension and termination of this Agreement or any provision hereof.
This Agreement will be governed by the internal laws of the State of California applicable to contracts wholly negotiated, executed, and performed therein. The parties agree that all disputes arising hereunder shall be submitted to binding arbitration, before a single neutral arbitrator, in accordance with the provisions of the California Code of Civil Procedure. Advertiser agrees that the arbitrator's ruling in the arbitration shall be final and binding and not subject to appeal or challenge. The language of the arbitration shall be English.