PLATFORM TERMS OF USE

INTRODUCTION

1. Kitly App, Kitly Business and Creator OS are owned and operated by Q-83 Technology Pty Ltd (ACN 626 454 340) (“Kitly”, “we”, “us” or “our”). Information about how to join and use Kitly App, Kitly Business and Creator OS forms part of these Terms of Use (“Terms of Use”). By registering an Account and using any of Kitly App, Kitly Business or Creator OS, you agree to accept these Terms of Use.

2. We have created Kitly App, Kitly Business and Creator OS to allow Agencies, Brands, Talent Agencies, Talent and Creators to authenticate, interact, form relationships, share Media Kits, and manage Campaigns, subject to compliance with these Terms of Use. In these Terms of Use, Brands, Agencies, Talent Agencies, Talent and Creators are collectively and individually referred to as “users” or “you” as the context requires.

3. Your access to and use of Kitly App, Kitly Business and Creator OS is conditional upon your agreement to and acceptance of these Terms of Use. Each time you use Kitly App and Kitly Business, you agree to be bound by these Terms of Use. These Terms of Use apply to all transactions conducted through Kitly App, Kitly Business and Creator OS. If you do not wish to be bound by these Terms of Use, do not use Kitly App, Kitly Business and Creator OS.

4. Kitly may at any time revise these Terms of Use by updating this page. Revisions will take immediate effect and may affect your ability to use Kitly App, Kitly Business and Creator OS. Since you are bound by these Terms of Use each time you use Kitly App, Kitly Business and Creator OS, you should check these Terms of Use for any revisions each time you use Kitly App, Kitly Business and Creator OS and wherever prompted to do so. Your use of Kitly App, Kitly Business and Creator OS following the posting of any revisions to these Terms of Use constitutes your acceptance of those revisions.

5. Kitly reserves the right to change Kitly App, Kitly Business and Creator OS in any way by giving you notice to the email address you have registered with us. Even if you have an Account, your ability to access and use Kitly App and Kitly Business may be altered or terminated at any time without notice to you. If you do not agree to these Terms of Use, you must immediately cease using Kitly App and Kitly Business.

6. Any costs associated with downloading, installing, accessing and using Kitly App, Kitly Business and Creator OS is your responsibility and may be dependent on the service provider used.

7. Kitly makes no representation or warranty that Kitly App and Kitly Business (or any element of Kitly App, Kitly Business and Creator OS) is appropriate, fit for your particular purpose, or available for use in all locations.

USING KITLY APP, KITLY BUSINESS AND CREATOR OS

8. Kitly Business allows Brands, Agencies and Talent Agencies to:

  • (a) View their owned social handles once linked to the Kitly Business system;

  • (b) Search for, authenticate and contact Talent;

  • (c) Manage brand ambassadors and report on their performance;

  • (d) Create brand campaigns and assign deliverables to talent

  • (e) Manage Talent on the Kitly platform;

  • (f) Send managed talent Media Kits including data to clients external to Kitly Business; and

  • (g) Create Brand/client profiles;

9. Kitly App allows Talent to:

  • (a) create Talent profiles/media kit;

  • (b) share their profile/media kit including data and metrics;

  • (c) enter into Campaigns with Agencies and/or Brands;

  • (d) Create invoices;

  • (e) Be discovered by Brands and agencies within the Kitly Business

  • (f) Add brands and campaigns; and

  • (g) Create and manage deliverables

9A. Creator OS allows Creators to:

(a) create and manage a creator profile and one or more Media Kits;

(b) link and verify their Social Media Accounts, and view the metrics, insights and account performance reports generated from them;

(c) record and manage brand relationships, opportunities and negotiations in a sales pipeline;

(d) create, send and track Collabs, deliverables and content plans with Brands and Agencies;

(e) build and maintain rate cards, and issue invoices and receive payment through the invoicing feature described in paragraphs 33 to 35;

(f) publish a branded landing page and share Media Kits with Brands and Agencies;

(g) invite Delegates to act on their behalf, subject to the limits of their Subscription; and

(h) access learning content, and use the in-product artificial intelligence assistant, subject to paragraph 9B.

9B. Creator OS includes an in-product artificial intelligence assistant (“AI Coach”) which generates suggestions, drafts and guidance in response to the questions you ask it and the information held in your Account.

(a) AI Coach output is generated automatically and is provided for general guidance only. It is not legal, financial, tax or professional advice, and it may be inaccurate, incomplete or out of date. You are solely responsible for reviewing and verifying any output before relying on it, sending it to a third party, or acting on it.

(b) We do not warrant that AI Coach output will be accurate, original, or suitable for your particular purpose, and we accept no liability for any decision you make in reliance on it.

(c) As between you and us, you retain ownership of the material you submit to AI Coach. Output generated for you is yours to use, subject to these Terms of Use and to any rights of third parties in material the output reproduces.

(d) You must not use AI Coach to generate material that is unlawful, misleading, defamatory, or that infringes the rights of any person, or to produce content that you present as being endorsed by us.

(e) How we handle the questions you send to AI Coach, including how long we retain them, is set out in our Privacy Policy.

10. The relevant user is solely responsible for reviewing and approving a Campaign, including all Posts that form part of a Campaign, in accordance with these Terms of Use. For the avoidance of doubt, Kitly is not liable for any payment to Talent, nor is Kitly liable in any way for the content of any Post.

11. You must not:

  • (a) decompile, reverse engineer, disassemble, convert or authorize any third party to decompile, reverse engineer, disassemble or otherwise convert any element of Kitly App, Kitly Business and Creator OS to a human perceivable form;

  • (b) distribute or republish any element of Kitly App and Kitly Business in any way;

  • (c) resell, rent, lease, licence or lend any element of Kitly App and Kitly Business;

  • (d) defeat, disable or circumvent any security feature of Kitly App and Kitly Business;

  • (e) transfer any element of Kitly App, Kitly Business and Creator OS to any third party;

  • (f) use any data mining, robots or similar data gather or extraction methods;

  • (g) register, subscribe or unsubscribe, or attempt to subscribe or unsubscribe, any party to any product or service if you are not expressly authorised by such party to do so; or

  • (h) sell, license, lease or in any way seek to commercialise any component of Kitly App, Kitly Business and Creator OS without specific written authorisation from Kitly.

12. Kitly App, Kitly Business and Creator OS is designed for use by people aged 13 years and over. To use Kitly App, Kitly Business and Creator OS, you must be eligible to use the social media platforms (under the relevant platforms prevailing terms and conditions) upon which you intend to publish Posts.

13. You are solely responsible for your interactions with other users of Kitly App, Kitly Business and Creator OS. You agree that Kitly is not responsible for the conduct of any user.

14. You must not engage in crawling, scraping, caching or otherwise accessing any content on Kitly App, Kitly Business and Creator OS via automated means, except with Kitly’s written consent.

15. Nothing in these Terms of Use is intended nor does create a partnership, agency, employment or fiduciary relationship between Kitly and any user.

16. Subject to your compliance with these Terms of Use, you are granted a limited, non-exclusive, revocable and non-transferrable licence to access and use Kitly App, Kitly Business and Creator OS in the manner anticipated in these Terms of Use or on the Kitly website from time to time.

17. Kitly App, Kitly Business and Creator OS may contain links to other sites not maintained by Kitly (“Linked Sites”). Kitly is not responsible for the content of any Linked Sites, whether or not Kitly is affiliated with the Linked Sites. Kitly makes no claim or representation regarding, and accepts no responsibility, directly or indirectly, for the quality, nature or reliability of Linked Sites. Such Linked Sites are not under the control of Kitly and Kitly provides links to the Linked Sites only as a convenience to users of Kitly App, Kitly Business and Creator OS. The inclusion of a link to any Linked Site does not imply any affiliation with or endorsement by Kitly. You should review any applicable terms and policies (including privacy policies) of any Linked Site you visit.

18. Kitly App, Kitly Business and Creator OS may also utilise social networks or share functionality and may contain social media links, applications or features (including but not limited to Facebook, YouTube, Twitter and Instagram). Your use of any social media platforms is subject to the particular social media platform's prevailing terms and conditions of use. By using any social media applications or features on Kitly App, Kitly Business and Creator OS, you consent and agree to be bound to the particular terms and conditions of use of the social media platform. You also acknowledge and consent to Kitly App, Kitly Business and Creator OS accessing information you may have shared with the particular social media platform and contacting you via the social media platform or via the information you have shared (for example, sending an email directly to you to the email address provided to the social media platform), in accordance with the permissions you have granted via the social media platform. You are encouraged to review the terms and conditions of use of each social media platform before engaging or interacting with the social media links, applications or features on Kitly App, Kitly Business and Creator OS. Kitly App, Kitly Business and Creator OS is in no way sponsored, endorsed or administered by, or associated with, any social media platform.

Please see the YouTube terms of service at this link: https://www.youtube.com/static?template=terms

REGISTERING AN ACCOUNT

19. In order to use Kitly App, Kitly Business or Creator OS, you must register an Account in the manner required and as set out in these Terms of Use. Talent must register via Kitly App. Talent Agencies, Agencies and Brands must register via Kitly Business. Creators must register via Creator OS.

20. Kitly reserves the right to refuse or cancel registration of an Account for any reason in its sole discretion. Any decision of Kitly is final and no correspondence will be entered into.

21. All information provided when registering an Account must be current, correct and complete. Incomplete, ineligible or incomprehensible Account registrations will not be valid. You must be logged in to your Account in the manner required each time you wish to use Kitly App, Kitly Business and Creator OS. You may never use another person or entity’s Account without their permission.

22. You are responsible for maintaining the strict confidentiality of your Account details and for any activity under your Account. You agree to immediately notify Kitly of any unauthorised use of your Account or any other breach of security. It is your sole responsibility to control access to and use of your Account and to notify Kitly when you desire to cancel your Account. Kitly will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.

23. Kitly retains the right and absolute discretion to terminate your Account and/or access to Kitly App, Kitly Business and Creator OS (or any element thereof) for any reason including if it believes that you are abusing or tampering with Kitly App and Kitly Business (or any element thereof) in any way, that you have breached these Terms of Use, or that you have engaged in any unlawful, unethical, or other misconduct calculated to jeopardise the proper administration of Kitly App and Kitly Business.

SUBSCRIPTION

24. Unless otherwise stated in these Terms of Use, a subscription is required in order to access and use aspects of Kitly App, Kitly Business and Creator OS (“Subscription”).

25. You may use aspects of Kitly App, Kitly Business and Creator OS for free. You must pay a Subscription Fee for your Account in order to obtain a Subscription.

The different types of Accounts, including the features and inclusions and applicable Subscription Fees, can be found on the Kitly website https://kitlybusiness.co/#/ and https://kitly.co/#/

25A. Creator OS may be offered with a free trial period, the length of which is stated at the point of registration and is currently sixty (60) days. During the trial you may use the features and limits of the trial tier stated at registration. At the end of the trial your Account reverts to the free Starter tier unless you have started a paid Subscription, and any feature or usage limit that exceeds the Starter tier’s limits will no longer be available to you. Content you created during the trial remains in your Account but may become read-only where it exceeds a Starter tier limit. We may vary or withdraw the free trial at any time for Accounts registered after the date of the change.

26. Kitly reserves the right to cancel a Subscription at any time in its absolute discretion. Without limitation, this includes if Kitly App and Kitly Business subject of the Subscription is unavailable, if there is an error in the description or price of the Subscription as advertised on the Website or Application, if there is an error in the payment of the Subscription Fee, or if Kitly knows or suspects that the Subscription Fee is being made by or on behalf of any person or entity whose previous use of Kitly App, Kitly Business and Creator OS was rejected, whose access to and/or use of this Website or Application has been suspended or terminated for breach of these Terms of Use, or who has been suspended or terminated from the Website or Application for breach of its other terms and conditions, or for vexatious, illegal, or inappropriate behavior. Whilst Kitly tries to ensure that all details, descriptions and prices appearing on the Website or Application are accurate, errors may occur. Kitly accepts no responsibility for errors occurring on the Website or Application.

27. Kitly also reserves the right to request you produce (within the requested time) appropriate identification or other documentation (to Kitly’s satisfaction, in its absolute discretion) in order to confirm your identity and eligibility to be a subscriber. If Kitly does not receive the requested documentation or your details have not been verified or validated to Kitly’s satisfaction within the time requested, your Subscription may be declined, suspended, or terminated without liability or any refund to you.

PAYMENT OF SUBSCRIPTION FEES AND ONGOING SUBSCRIPTION CHARGES

28. The Subscription Fees for your ongoing Subscription are set out on the relevant Website or Application, or as otherwise advised by us in writing. Ongoing Subscription Fees are payable on a month-to-month or annual basis. No cancellation fee is payable. You may cancel a Kitly App or Kitly Business Subscription by emailing hi@kitly.co or hi@kitlybusiness.co, and a Creator OS Subscription from the billing section of your Account. Cancellation takes effect at the end of the Subscription period already paid for, and no refunds are payable for monthly or annual Subscription Fees already paid.

29. Kitly reserves the right to change the Subscription Fees during your ongoing Subscription with Kitly and will notify you of such change to the Subscription Fees in writing or by updating their Website or Application. Any change to the Subscription Fees will take place at the beginning of the month following the month in which Kitly notified you of any change to the Subscription Fees. You may cancel your Subscription prior to the beginning of the following month that Kitly notified you of the changes to the Subscription Fees.

30. You must pay all Subscription Fees in the manner set out on the Website or Application or as otherwise advised by Kitly in writing from time to time. If no manner for payment is stated, the payment must be made by credit card, debit card, in-app purchase, or PayPal. Kitly reserves the right to charge a credit or debit card surcharge with the current minimum surcharge being one percent (1%) for Visa and MasterCard (including GST), subject to increases in the surcharges that Kitly may charge.

31. When you pay the Subscription Fee, you undertake that you are an authorised user of the card or account (as applicable), including for the ongoing Subscription, that the card or account (as applicable) details provided are current, correct and complete and that your nominated card or account (as applicable) will cover the full amount of the Subscription Fees. You must not pay, or attempt to pay, any Subscription Fees through any fraudulent or unlawful means. Kitly may carry out a standard pre-authorisation check of your nominated card or account (as applicable) to verify the details provided and to ensure there are sufficient funds to fulfil the transaction. Kitly App, Kitly Business and Creator OS may not be accessible and/or provided until this pre-authorisation check has been completed.

32. You authorise Kitly to debit the relevant amount that is payable for your Subscription from your nominated card or account (as applicable) in order to pay the Subscription Fee. You must pay all Subscription Fees in full strictly within the timeframe set out on the Website or Application or as otherwise advised by Kitly in writing from time to time.

LIVE INVOICING FOR KITLY APP, KITLY BUSINESS AND CREATOR OS (STRIPE)

33. The invoicing feature in both Kitly App and Kitly business links to a third-party payment processing service – STRIPE. STRIPE includes basic fees for the use of their service and relevant credit card fees associated with the card used to make the payment.

34. The invoicing feature within Kitly App allows users to create an invoice and share a live stripe link providing the receiver with a payment portal to make a payment to the talent. Other than the relevant STRIPE fees associated with this process Kitly charges a fee based on the subscription tier the Kitly App user is on. These Tiers are as follows;

- Free plan (USD$0) – 3.5% Platform fee + standard card fees of either 1.75% or 1.90%

- PRO Plan(USD$9) – 2.5% Platform fee + standard card fees of either 1.75% or 1.90%

- Publisher plan (USD$19) – 1.5% Platform fee + standard card fees of either 1.75% or 1.90%

35. The invoicing feature within Kitly Business allows users to create an invoice and share a live stripe link providing the receiver with a payment portal to make a batch payment to the Kitly Business User (Agency) and the relevant Talent included in the invoice. Other than the relevant STRIPE fees associated with this process Kitly charges a fee based on the subscription tier the Kitly App user is on. These Tiers are as follows;

- Free Plan (USD$0) – 2% of the total invoice value

- Professional plan (USD$449) – 1% of the total invoice value

35A. Creator OS is offered on the following tiers. Current prices are those published at creator.kitly.co and on the Creator OS landing pages, and prevail over any figure stated here: Starter (USD$0); Growth (USD$49 per month); Pro (USD$99 per month); Elite (USD$199 per month). Annual billing is available on each paid tier at the price published at the point of purchase. Additional products, including learning content sold as an add-on, are charged separately at the price published at the point of purchase. The invoicing feature within Creator OS links to STRIPE on the same basis as described in paragraphs 33 and 34, and the platform fee applied is the fee published for your tier at the time the invoice is paid.

ADDITIONAL TERMS FOR TALENT AGENCIES AND TALENT

36. Conditions 36-48 apply only to Talent Agencies and Talent using Kitly App, Kitly Business and Creator OS.

Further Terms for Talent Agencies and Talent Accounts

37. To register a Talent Agency Account, you must log in to Kitly Business in the manner required, including by providing your full name, email address, location, time zone, agency name, password and referrer.

37A. If a Talent Agency is utilizing Kitly Business on behalf of a Talent, these terms relating to Talent applies to the Talent Agency.

38. To register an Talent Account, you must log in to Kitly App in the manner required, including by providing your full name, email address, location, time zone, password and referrer.

39. Talent agree to ensure that they comply with any and all requirements of Instagram, Facebook and any other social media accounts in relation to but not limited to branded content advertisements.

When registering a Talent Account, you may select a free Account or a paid Account. If you select a paid Account you will also be required to provide your credit card details. If you select a free Account, you may not have access to some of the features, inclusions and benefits available to paid accounts. The different types of Talent Accounts, including the features and inclusions and applicable Subscription Fees, can be found on the Website or Application https://kitlybusiness.co/#/

40. Your Talent Account may be linked with third parties for the purposes of displaying your Media Kit on their website or application if you follow the steps on the third party’s website or application to provide consent to link your account with them.

41. Linking your Talent Account and providing your Media Kit to any third party does not involve and is not the responsibility of Kitly.

Additional Talent Eligibility Requirements

42. In order to register a Talent Account (general term for business account across all social media), we require that you:

  • (a) convert your Social Media Account/s to a “business account”;

  • (b) log-in to your Social Media Account following the steps outlined when signing up to Kitly App, Kitly Business and Creator OS;

  • (c) grant Kitly access to your unique user authentication “access token” which provides access to the Social Media Account’s API; and

  • (d) select the Social Media Account/s you wish to link to Kitly App and Kitly Business.

  • (e) Once you have linked your Social Media Account you are required to select specific categories which you wish your Talent profile to be found in by Brands and Agencies on Kitly business, the ‘Private’ Category can be used to hide the account from Kitly Business.

  • (f) If you wish to use Kitly App or Kitly business passed the free usage thresholds shown on each respective platform you will be asked to pay a Subscription Fee and your credit card or PayPal details will be required also as stated on Kitly App, Kitly Business and Creator OS.

43. If you do not complete the steps required above, or remove any permissions in the Social Media Account’s authentication process, you may not be able to participate in Campaigns or access the functionality of Kitly App and Kitly Business.

44. You acknowledge and agree that by providing your access token to Kitly, you authorize and permit Kitly:

  • (a) to use your access token with the Social Media Account’s API;

  • (b) to access and share the data from your linked Social Media Account/s with Kitly App, Kitly Business and Creator OS and with Brands and Agency users if you have not chosen to remain private;

  • (c) to undertake analysis of the data from your linked Social Media Account and to create metrics and data insights to create Media Kits which you may allow Brand and Agency users of Kitly App, Kitly Business and Creator OS access and view, if you haven’t chosen to remain private; and

  • (d) to use your de-identified data for internal aggregated data analysis to enable Kitly to improve its products and services.

  • (e) Any other purpose stated on Kitly App, Kitly Business and Creator OS.

Terms for Participating in a Campaign (Kitly Business, Enterprise)

45. An Agency or Brand user may post a Campaign Brief and invite Talent or Talent Agencies to submit an application either directly or on behalf of their talent.

46. Talent with eligible Talent Accounts may submit individual Campaign Responses or group Campaign Responses as the context permits.

47. You will be notified if an Agency/Brand has selected you for a Campaign. At that stage, the Agency/Brand may:

  • (a) give directions and guidance to you in respect of the creative aspects of the content to be created for the Campaign based on your previous content’s performance, audience metrics or campaign brief;

  • (b) give you a media plan which specifies the time and dates of all Posts; and

  • (c) give you required captions, mentions, hashtags and other posting requirements.

48. The draft Campaign will be uploaded onto the Campaign Management Tool and may need to be approved on Kitly App, Kitly Business and Creator OS by the Agency and/or Brand’s Master Account holder and any Team Members who have approval rights (if applicable) before the Campaign is deemed to be approved by the Brand and scheduled for release onto your Channels.

ADDITIONAL TERMS FOR AGENCIES, BRANDS AND TALENT AGENCIES

49. Conditions 50-72 apply only to Agencies, Brands and Talent Agencies participating in Kitly Business.

Further Terms for Kitly Business Accounts

50. To register a Kitly Business Account, you must log in to Kitly Business in the manner required, including providing your full name, company name, email address, location and password and providing credit card or other payment details where requested. https://kitlybusiness.co/#/ 50. We may ask you to verify your Account registration by sending you a confirmation email which requires you to confirm the details which have been submitted.

51. If you initiate the registration of a Kitly Business Account on Kitly Business, you represent and warrant that you are authorized to accept these Terms of Use on such entity’s behalf and act as the master account holder with administration rights (“Admin Account”).

52. As the Admin Account holder, you can designate Team members for the Kitly Business Account (“Team Members”). Team Members may have specific access, permission or approval rights in respect of the Kitly Business Account. The Admin Account holder further represents and warrants that he/she is authorized to designate and invite Team Members to Kitly Business and that those Team Members are authorized representatives of the Agency, Brand, and/or Talent Agency and are qualified to fulfill the role/s allocated to them.

53. You can create Client profile/s for the Agency/Brand Account/s you manage.

54. You acknowledge that Kitly may, at its sole discretion, change the Agency/Brand Account features and inclusions available on Kitly App and Kitly Business, including the fees payable for Agency/Brand Accounts. You will be notified in writing of any such changes.

The Campaign Management Tool for Kitly Business, Enterprise

55. Agencies and Brands are able to create Campaign Briefs using the Campaign Management Tool. Campaign Briefs will be published on Kitly App, Kitly Business and Creator OS and Talent will be invited to submit Campaign Responses.

56. Campaign Brief information may include some or all of the following:

  • (a) Brand name;

  • (b) Campaign name;

  • (c) Campaign description

  • (d) dates and duration of Campaign;

  • (e) required geolocation of Talent’s audience by country and/or city;

  • (f) required or preferred gender of Talent’s audience;

  • (g) media type, e.g. photo; video or story;

  • (h) Quantity of each style of content

  • (i) number of Talent required for the Campaign;

  • (j) Total budget for the campaign, and/or contra product value; and

  • (k) closing date for Campaign Applications.

57. The Talent Agency/Agency and/or Brand can review Campaign Responses and select an Talent for a Campaign.

58. The Agency and/or Brand may:

  • (a) give directions and guidance to the selected Talent in the Campaign Management Tool in respect of the creative aspects of the Posts to be created for the Campaign based on the Talent’s previous posts and audience metrics;

  • (b) give the Talent a media plan which specifies the time and dates of all Posts; and

  • (c) give the Talent required captions, mentions, hashtags and other posting requirements.

59. The draft Campaign will be uploaded onto the Campaign Management Tool and must be approved on Kitly App, Kitly Business and Creator OS by the Master Account holder and any Team Members who have approval rights (if applicable) before the Campaign is deemed to be approved by the Brand and scheduled for release onto the Talent’s Channels.

60. Once the Campaign is released onto the Talent’s Channels the Agency and/or Brand may monitor the real-time performance of the Campaign. On completion of the Campaign the Agency and/or Brand will receive a Campaign report via Kitly App, Kitly Business and Creator OS. If the Talent is managed or represented by a Talent Agency, the Talent Agency may also view the campaign.

General obligations

61. Kitly in its sole discretion reserves the right to reject Campaigns that do not comply with these Terms of Use.

62. You must not attempt to instruct, coerce or manipulate Talent to hide the commercial relationship between the Brand and the Talent. Such attempts may result in the Agency and/or Brand being immediately removed from Kitly App and Kitly Business.

63. Agencies and Brands agree in respect of all Content uploaded to Kitly App, Kitly Business and Creator OS as part of a Campaign:

  • (a) to grant to Kitly (and its agents), a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Content for the purpose of marketing and promoting Kitly (and its products and services) in any manner, without further notification to or consent of the Brand or any compensation payable to the Brand; and

  • (b) with respect to Campaigns, to grant to the relevant Talent, a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to post, share, comment upon and re-post the relevant Content across their Channels as part of any approved Post in accordance with these Terms of Use.

64. You warrant that:

  • (a) you own the Intellectual Property Rights in Content you upload to Kitly App, Kitly Business and Creator OS and have the right to license the Content to Kitly and Talent in the manner set out in these Terms of Use;

  • (b) you have the right to license the Content to Kitly and Talent in the manner set out in these Terms of Use;

  • (c) you will not encourage or facilitate any misrepresentation or suggestion that the Brand or any entity has the approval or sponsorship of any other entity which the Brand or entity does not have;

  • (d) any Content you upload to Kitly App, Kitly Business and Creator OS does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive; and

  • (e) where Posts include Third Party Material, you will strictly comply with any use limitations notified to you in respect of the Third Party Material and will obtain all licences required for your intended use of the Post prior to use of such Post, including obtaining any licences required with respect to Third Party Material.

65. Agency and Brand agree that Kitly is not responsible for any aspect of the Brand’s Content to be reviewed, shared, sponsored or advertised by Talent. Brand acknowledges and agrees that Kitly is not responsible or liable for the content of any Post.

66. Agency and Brand acknowledge that Talent are independent third parties and not directly controlled by Kitly. As a consequence, any Posts will inherently risk negative or unflattering comments about Brand’s content, products or services. Agency and Brand specifically acknowledge and agree that Kitly has no control over any Post that may be published and that Agency and/or Brand (as applicable) are solely responsible (and assume all liability and risk) for determining whether a Post is acceptable and appropriate to the Brand.

67. Brand agrees that upon notice from Kitly or if Brand learns that any Content is subject to an actual or threatened claim of infringement, violation of another right, or other claim, or if Kitly removes any Content for any reason and gives the Agency and/or Brand notice of such removal, the Brand will remove such Content from its computer systems and storage devices and will, to the extent possible, cease use of such Content.

68. Kitly has the right to cancel, suspend, restrict services to and/or terminate a Brand’s account if Kitly believes (in its sole discretion) that the Brand is not using Kitly App, Kitly Business and Creator OS in a fair and reasonable way, or are attempting to use Kitly App, Kitly Business and Creator OS in a way which does not treat the Talent or Kitly App, Kitly Business and Creator OS in a fair and reasonable way and/or not in accordance with the purposes for which Kitly App, Kitly Business and Creator OS were intended.

69. You acknowledge that Kitly has not made any warranties in respect of the success of any Campaign in respect of your business or commercial performance or otherwise of any Post, Campaign, Channel or other media, marketing communications channel, marketing or advertising campaign, promotion or advertisement.

KITLY’S INTELLECTUAL PROPERTY

70. All Kitly Materials on Kitly App, Kitly Business and Creator OS are protected by all applicable laws including copyright and trade mark laws unless otherwise specifically noted and may not be used except as permitted in these Terms of Use. Nothing in these Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in any Intellectual Property Rights in the Kitly Materials to a Brand, Agency, Talent Agency, or Talent.

71. All right, title and interest in all Intellectual Property Rights in all of Kitly’s brands, logos, images, buttons, codes, layout, text, content, graphics, and products and services as displayed on Kitly App and Kitly Business as well as the look and feel of Kitly App, Kitly Business and Creator OS (the “Brand Features”) are the property of Kitly and will remain or be vested in Kitly at all times and may not be copied, imitated or used in whole or in part without Kitly’s prior written consent. Your use of Kitly App, Kitly Business and Creator OS will not under any circumstances be taken to constitute a transfer, assignment or grant of any ownership rights in any of the Brand Features or Kitly App, Kitly Business and Creator OS. Kitly, on a case by case basis and to the extent required, grants to you a limited, non-exclusive licence to use the Brand Features solely for the purpose, and to the extent necessary, to enable you to use Kitly App, Kitly Business and Creator OS.

COPYRIGHT INFRINGEMENT POLICY & COMPLAINTS

72. Kitly has adopted a policy of terminating, where appropriate and at Kitly’s discretion, access to Kitly App, Kitly Business and Creator OS for users who infringe the intellectual property rights of Kitly or any third party.

73. If you believe that any material on Kitly App, Kitly Business and Creator OS infringes upon any copyright that you own or control, you may file a notification of such infringement with us at the following details: hi@kitly.co or hi@kitlybusiness.co

TALENT, AGENCY, TALENT AGENCY & BRAND REPRESENTATIONS AND WARRANTIES

74. Talent, Agencies, Talent Agencies and Brands participating in Kitly App, Kitly Business and Creator OS warrant, represent and covenant that:

  • (a) all information you provide to Kitly upon registering for an Account is true, accurate and complete and not misleading;

  • (b) any third-party social media accounts to which you link are:

    • [i] your own accounts;

    • [ii] if the Account refers to a Brand, that you are the authorised representative of the Brand with the right to access its social media accounts and represent its interests; and

    • [iii] if the Account refers to an individual other than you, you are the authorised representative of that individual with the right to access his or her social media accounts and control his or her interests;

  • (c) You have the right and authority to create an Account and agree to these Terms of Use, including, where relevant, the authority of any Brand or individual to create an Account, agree to these Terms of Use and to use Kitly App, Kitly Business and Creator OS on its or his or her behalf;

  • (d) You are authorised to submit Content, as applicable, in the manner invited via Kitly App, Kitly Business and Creator OS;

  • (e) any Content you submit to Kitly App, Kitly Business and Creator OS will not contain anything that;

    • [i] is illegal or contrary to any laws, applicable industry code or the requirements or directions or relevant regulators;

    • [ii] is copied or adapted either wholly or substantially from any other work or material;

    • [iii] is indecent, obscene, threatening, discriminatory, harassing, in breach of any confidence, defamatory, offensive or objectionable or contains, depicts or alludes to or promotes aggressive, unruly, antisocial, lewd or illegal behaviour or sexually suggestive imagery;

    • [iv] parodies, disparages or makes fun of Kitly or its products of services or Kitly generally in any way;

    • [v] solicits passwords or personal information for commercial or unlawful purposes or provides any telephone numbers, street addresses, last names, URLs or email addresses (unless part of a Campaign);

    • [vi] promotes an illegal or unauthorised copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated materials;

    • [vii] involves the transmission of junk mail, chain letters, unsolicited mass mailing or spam;

    • [viii] infringes the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity;

    • [ix] constitutes, encourages or provides instructions for any criminal offence, violates the rights of any party, or otherwise violates any Laws including, without limitation, the regulations of any stock or securities exchange such as the New York Stock Exchange; or

    • [x] contains any viruses, corrupted data or other harmful or malicious code of files.

GST

75. Words or expressions used in these Terms of Use that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as given in the Act. If GST applies to any supply made under these Terms of Use, then the party making that supply may, in addition to any other amount payable, recover from the other party an additional amount on account of GST, such amount to be calculated on the basis of the current GST rate. Unless otherwise specified, any amount payable under these Terms of Use is exclusive of GST.

ACKNOWLEDGEMENTS

76. The Brand, Agency, Talent Agency and the Talent acknowledge that:

  • (a) neither the Talent nor Kitly is required to purchase any of the Brand’s products or services;

  • (b) Brand may, in its sole discretion, arrange to send an Talent a sample product. Talent may request a Brand to send a sample product, but Brand is under no obligation to do so;

  • (c) Kitly will not be responsible or liable in any way for late delivery or non-arrival or any products sent from a Brand to an Talent. Address provided by Talent through Kitly App, Kitly Business and Creator OS is not verified by Kitly;

  • (d) if Brand sends a sample product to an Talent, there is no guarantee that the Talent will submit a Post about the product or that any post submitted will be positive. All product reviews must reflect the Talent’s genuinely held beliefs;

  • (e) if an Talent chooses to purchase a product, there is no guarantee that Talent’s Post(s) about the product will be approved by the Brand;

  • (f) a product, service or other non-monetary arrangement cannot be offered or used as partial or full payment by a Brand for a Campaign or an Talent’s Post;

  • (g) nothing in these Terms of Use grants to the Brand any ownership rights in the Intellectual Property Rights in the Posts or the Talent’s Identity;

  • (h) nothing in these Terms of Use grants to the Talent any ownership rights in the Intellectual Property Rights of the Brand; and

  • (i) nothing in these Terms of Use requires the Brand to make use of any of the rights granted to the Brand by the Talent under this Agreement.

INDEMNIFICATION

77. You agree to indemnify, and must defend and hold harmless, Kitly and its related bodies corporate, personnel, servants and agents, from and against any claims, liabilities, damages, losses and expenses (including reasonable legal fees) arising out of or in any way connected with any of the following (including as a result of your direct activities on Kitly App and Kitly Business):

  • (a) your Content or access to Kitly App, Kitly Business and Creator OS;

  • (b) your use or inability to use Kitly App, Kitly Business and Creator OS;

  • (c) your breach or alleged breach of these Terms of Use or any of the warranties or covenants given or made by you;

  • (d) your claim against a Brand for any reason;

  • (e) your claim against an Talent for any reason;

  • (f) any claim by any third party (including any other brand or Talent) arising directly or indirectly from your breach of any of the provisions of these Terms of Use;

  • (g) any claim or allegation that your Content infringes a third party’s rights, including Intellectual Property Rights.

  • (h) your violation of any applicable laws, rules or regulations; and

  • (i) any misrepresentation made by you.

LIMITATION OF LIABILITY

78. You agree to use Kitly App, Kitly Business and Creator OS at your own risk and to assume total responsibility for your use of Kitly App, Kitly Business and Creator OS. You agree that Kitly disclaims any and all responsibility for any damage or loss that you may suffer or incur as a result of using Kitly App, Kitly Business and Creator OS. To the maximum extent permitted by law (but subject to paragraph 78):

(a) Kitly App, Kitly Business and Creator OS and the Kitly Materials and any other features or functions associated with Kitly App, Kitly Business and Creator OS are provided "as is" and "as available" with all faults and without any warranties of any kind, either expressed or implied, to the fullest extent permissible pursuant to applicable law, including, without limitation, any implied warranties of merchantability, satisfactory quality, non-infringement or fitness for a particular purpose;

  • (b) under no circumstances will Kitly be liable in any way for any Content, including but not limited to any errors or omissions in such Content or any loss or damage of any kind incurred as a result of any use of Content posted, transmitted or otherwise made available via Kitly App, Kitly Business and Creator OS;

  • (c) we do not make any promises or assurances to you about Kitly App and Kitly Business, including without limitation that your use of Kitly App and Kitly Business will be uninterrupted, secure, reliable or error-free;

  • (d) any liability of Kitly to an Agency or Brand or Talent Agency in connection with these Terms of Use or the Agency or Brand or Talent Agency’s use of Kitly App, Kitly Business and Creator OS, regardless of the form or cause of action be it in contract, warranty, tort, negligence or any other basis, shall be limited to the amount actually paid by the Agency or Brand or Talent Agency to Kitly for the services related to the Brand’s most recent Campaign. Kitly shall not be liable to Talent for damages of any kind arising out of the Talent’s use of Kitly App and Kitly Business.

  • (e) we make no representations or warranties in relation to the accuracy or completeness of the information, advice or other content available on or via Kitly App, Kitly Business and Creator OS and we do not accept any liability in relation to your reliance on such information, advice or other content; and

  • (f) we will not be liable for any loss or damage (including, indirect incidental or consequential loss or damage, loss of profit, loss of revenue, loss of data, loss of goodwill or loss of opportunity) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of the use by you of Kitly App, Kitly Business and Creator OS. This limitation of liability includes, without limitation, any damages caused by or resulting from reliance by a user on any information obtained from Kitly, or that results from mistakes, omissions, interruptions, deletion of files or emails, errors, defects, viruses, delays in operation, or any failure of performance, whether or not resulting from acts of God, communication failures, theft or destruction or unauthorized access to Kitly’s records.

79. Nothing in these Terms of Use excludes, restricts or modifies any rights that you have under existing laws or regulations and codes, including the Competition and Consumer Act 2010 (Cth) and fair trading laws. There are statutory consumer guarantees under consumer protection laws that cannot be excluded. To the extent that any statutory guarantees apply to these Terms of Use, we limit our liability to the maximum extent permitted by law, at our election, to the supply of our services again or the payment of the cost of having our services supplied again.

MONITORING

80. Kitly reserves the right to monitor Kitly App, Kitly Business and Creator OS generally and all Account activity. If your Account shows signs of fraud, abuse or suspicious activity, Kitly may close or freeze the Account immediately. Kitly retains the right and absolute discretion to suspend or terminate your Account, and/or access to Kitly App, Kitly Business and Creator OS generally without notice if Kitly believes you have abused any privilege accorded to you as a participant in Kitly App and Kitly Business, supplied misleading information or made any misrepresentations to Kitly in connection with Kitly App, Kitly Business and Creator OS tampered with Kitly App, Kitly Business and Creator OS in any way, breached these Terms of Use, or engaged in any unlawful or other improper misconduct calculated to jeopardise the proper administration of Kitly App, Kitly Business and Creator OS. Kitly retains the right to remove any Content that it considers breaches these Terms of Use. In the event of termination or suspension of your Account in accordance with these Terms of Use, you will have no further access to your Account for the duration of the suspension or at all in the event of termination. Kitly’s legal rights to recover damages or other compensation from you are reserved.

Referrals

81.

Referral rewards are delivered to Kitly App users who have completed a successful ("successful") referral.

"Successful" referrals are completed once a referred user registers a Kitly Business account using the unique code provided by the Kitly App user, they will also have successfully paid a full 1 months subscription for that Kitly Business account of at least USD$289 .

All referral rewards will be made available to the Kitly App user within their Kitly App, generated by a third party.

Referral rewards will not be made available until a full 1 month's Kitly Business subscription has been paid by the referred user.

GENERAL TERMS

82. If Kitly App, Kitly Business and Creator OS is not capable of running as planned for any reason beyond the reasonable control of Kitly, including because of war, terrorism, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures or any which corrupt or affect the administration, security, fairness, integrity or proper conduct of Kitly App, Kitly Business and Creator OS, or if any social media platform alters its terms of service, access or permission in such a way that affects Kitly App, Kitly Business and Creator OS, Kitly reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend Kitly App and Kitly Business.

83. These terms of use shall be governed by and are to be construed in accordance with the laws of the State of New South Wales, Australia, and the parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia, and any courts competent to hear appeals from those courts.

84. No additional Talent, Brand or Agency originating agreement or other terms and conditions (including purchase order or insertion order terms and conditions) may be imposed on Kitly unless agreed by Kitly in writing and, in such case, if any terms and conditions in an Talent, Brand or Agency originating agreement or other terms and conditions are inconsistent with these Terms of Use, these Terms of Use shall prevail to the extent of any inconsistency.

85. If you are using Kitly App, Kitly Business and Creator OS on behalf of a legal entity, you represent that you are authorised to enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire agreement between you and Kitly and govern your use of Kitly App, Kitly Business and Creator OS, superseding any prior agreements between you and Kitly. You will not assign any rights or obligations under these Terms of Use, in whole or in part, to any third party without the prior written consent of Kitly. Kitly may assign its rights or obligations hereunder at its sole discretion.

86. Any waiver of any provision of these Terms of Use will only be effective if in writing and signed by Kitly. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down and amended so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms of Use without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.

CONTACT AND HELP DETAILS

87. You may contact Kitly via:

Mail: Q-83 Technology Pty Ltd

24-26 Legge Street, Roselands, NSW 2196, Australia

Email: hello@q-83.com

INTERPRETATION

88. The following terms have the following meanings in these Terms of Use:

“Account” means an Agency Account, Brand Account, Agency/Brand Account, Talent Agency Account, Kitly Business Account, Talent Account or Creator Account.

“Agency” means any marketing, advertising, media or communications entity, including a public relations, media, creative, design or digital agency, or its duly authorized agents or representatives.

“Application” means the Kitly App or Kitly Business available for download via https://kitly.co/#/

“Client” means any person or entity, or its duly authorised agents or representatives,

“Kitly Business Account” means Talent Agency Account and Agency/Brand Account.

“Campaign” means a marketing campaign created by an Agency or a Brand using the Campaign Management Tool.

“Campaign Brief” means a brief for a Campaign created by a Brand using the Campaign Management Tool to be opened to Talent via Kitly App, Kitly Business and Creator OS for the purpose of finding appropriate Talent to perform services on a Campaign.

“Campaign Management Tool” means the Talent marketing campaign management solution for Agencies and Brands featured on Kitly App, Kitly Business and Creator OS which allows Agencies and Brands to publish Campaign Briefs to Talent, review Campaign Responses, approve Campaigns and execute Campaigns.

“Campaign Response” means a response from a Talent to a Campaign Brief.

“Channels” means the social media channels of an Talent, being Instagram and any other social media channel through which an Talent undertakes services on a Campaign.

“Community” means an Talent’s social media following on its Channels.

“Content” means a Post or any other content or materials uploaded to Kitly App and Kitly Business by a Brand or an Talent (but excludes any Third Party Material included in a Post that is expressly disclosed to Kitly and the Brand).

“Delegate” is defined in paragraph 53.

“Talent” means a social media Talent, publisher or content creator who registers to use Kitly App.

“Talent Account” is defined in paragraph 19.

“Talent’s Identity” means the name, image, likeness, character and online persona of the Talent.

“Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights, and whether existing in Australia or otherwise.

“Laws” means all applicable laws, codes of practice and guidance relating to Talent marketing in Australia.

“Admin Account” is defined in paragraph 52.

“Media Kit“ means the metrics, insights and account performance reports generated by Kitly using the data from an Talent’s linked Social Media Account.

“Post” means a social media post or other content created by an Talent to be shared with the Talent’s Community via the Talent’s Channels.

“Reporting Tool” means tool that provides the metrics, insights and account performance reports generated by Kitly using the data from a Talent’s linked Social Media Account on specific branded content.

“Social Media Account” means a user account on Instagram, Twitch, Facebook, Twitter, Google Analytics, Tik Tok, YouTube, WeChat, or Snapchat.

“Subscription Fee” means the monthly subscription fee payable by an Agency, Brand, Talent Agency or Talent to Kitly for use by the Agency, Brand, Talent Agency, or an Talent of a paid Talent Account, on Kitly App and Kitly Business.

“Talent Agency” means any agency representing professional actors, writers, performers, musicians, artist, athletes and Talent duly authorized to act on behalf of Talent.

“Talent Agency Account” is defined in paragraph 19.

“Third Party Material“ means any material included in a Post that is owned by or licensed from a third party, including material in relation to which there may be stated, inherent or industry practice-based use limitations as a result of the rights of third parties including, without limitation, rights in music, rights of personality, talent rights and similar.

“Kitly”, “we”, “us” and “our” mean Q-83 Technology Pty Ltd (ACN 626 454 340), which owns and operates Kitly App, Kitly Business and Creator OS.

“Kitly Materials” means Kitly App, Kitly Business and Creator OS and any associated materials owned, developed or licensed by Kitly and made available via Kitly App, Kitly Business and Creator OS.

“Kitly Business” means the online Application, Media Kit, Reporting Tool, Campaign Management Tool and any associated Kitly properties or websites from time to time used by Agencies, Brands, and Talent Agencies.

“Kitly App” means the online Application, Media Kit, Reporting Tool, and any associated Kitly properties or websites from time to time used by Talent.

"Successful Referrals"

Completed once a user registers a Kitly Business account using the unique code provided by the Kitly App user and has successfully paid a full 1 months subscription.

“Website” means the URLs on which Kitly App, Kitly Business and Creator OS reside and may be accessed, being https://kitly.co/#/, https://kitlybusiness.co/ and https://creator.kitly.co.

“AI Coach” is defined in paragraph 9B.

“Creator” means a content creator, publisher or social media talent who registers to use Creator OS.

“Creator Account” means an Account registered via Creator OS.

“Creator OS” means the online application available at https://creator.kitly.co, together with the Media Kit, Reporting Tool, sales pipeline, invoicing, rate card, learning and AI Coach features made available through it, and any associated Kitly properties or websites from time to time.