hummingbirds, inc. terms and conditions

Welcome!  This Site is designed to connect influencers and content creators (“Hummingbird,”) and users (“Users,” and, together with Hummingbirds individually and collectively referred to as “You,” or “Your”) with company clients (“Partners”). Your use of this platform, app, site, and any portion thereof means You agree to the following Terms and Conditions (the “Terms”). If You have any questions about these Terms, please contact us at help@hummingbirds.com Different sections of this Agreement apply to Hummingbirds and Users and some sections will apply to You depending on your use of the Site.

Generally

This Hummingbird Site Terms and Conditions (this “Agreement”) is between Hummingbirds, Inc., a Delaware corporation (“Company”), and You (an individual, or if You represent an entity or other organization, that entity or organization). This Agreement provides the Terms under which a Hummingbird may provide creation and distribution of content Services (the “Services,”) and Users may enjoy the site (the “Experiences”) as more fully defined and explained below.

This Agreement includes the following sections, some of which are applicable to You in all instances and some that may only apply if You are a Hummingbird:

I. GENERAL TERMS AND CONDITIONS

II. USER-SPECIFIC TERMS AND CONDITIONS

III. HUMMINGBIRD-SPECIFIC TERMS AND CONDITIONS

IV. LEGAL NOTICES

V. ANY SUPPLEMENTAL TERMS

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PLEASE CAREFULLY READ THIS AGREEMENT

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I. GENERAL TERMS AND CONDITIONS

When is this Agreement effective?

The date that You click through acceptance of the Terms of this Agreement.

What if the Agreement changes? Can Hummingbirds Company change the Agreement?

Company reserves the right to modify, suspend, or discontinue (i) the Site, (ii) the Hummingbird program (or any portion thereof), (iii) Your right to access, use, or provide Services, or (iv) Your right to access, use, or enjoy the Experiences, with or without notice to You, at any time, in its sole discretion. Your continued access to Company’s Site and/or Your continued provision of Services will constitute acceptance of any change, modification, suspension or discontinuance. Any changes made will only apply prospectively and will not alter Compensation for Services already provided.

Capitalized and Defined Terms

All capitalized Terms used in this Agreement will have the meanings as defined: (i) below or in this Agreement; or (ii) in the context in which they are used. All other Terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.

“Campaign,” “Campaign Information,” and “Invitation” means, collectively, any details provided to Hummingbird by Company or the Partner, including, but not limited to, Perks, Compensation, program dates, branding guidelines, general and specific Hummingbird and User responsibilities, Partner goods or services, and the identity of the Partner, relating to an opportunity for the Hummingbird or User to provide Services for a Partner.

“Compensation” means the monetary payment, if any, payable to Hummingbird or User by Company for Services performed in connection with a Campaign, as set forth in the applicable Campaign Information or Campaign Invitation.

“Confidential Information” means all information, including but not limited to this Agreement, relating to or disclosed in the course of performing Services which is or should be reasonably understood to be confidential or proprietary to Company, its Partners, the subsidiaries and affiliated companies of both and/or their licensors, licensees, agents and business partners.

“Event” means any promotion, discount, redemption offer, product launch, limited-time offer, sales campaign, giveaway, sweepstakes, branded collaboration, sample distribution, or other commercial, promotional, or marketing activity that is (a) made available on or through the Site by a Partner, whether in connection with content produced by a Hummingbird or otherwise, or (b) designed or intended for access, participation, purchase, or engagement by Users. For the avoidance of doubt, “Event” does not include any Services made available exclusively to Hummingbirds.

“Hummingbird Content” means all text, images, graphics, illustrations, information, data, audio, video, photographs, posts, Snaps, links, files, or any other content or Services created, distributed, or provided by Hummingbird pursuant to a Campaign for the limited Purpose defined below.

“IP Rights” includes, but is not limited to, all intellectual property and proprietary rights throughout the world, including, without limitation, all copyrights, trademarks, trade secrets, patents, moral rights, rights of publicity, and other rights protecting data, information, name, image, likeness, or any other intangible property throughout the world.

“Partner” means any Company customer, including any customer affiliates, and Partners that have a contractual relationship with Company to receive Services or engage regarding Experiences.

“Payment Processor” means Astra or such other third-party payment processing service designated by Company from time to time to facilitate the payment of Compensation to Hummingbirds or Users.

“Perks” means any non-monetary benefits, goods, or services provided or made available to Hummingbird or User by a Partner in connection with a Campaign, as described in the applicable Campaign Information.

“Purpose” means the reason You are creating Content and is limited to those reasons associated with Your work on a Campaign or for the Company’s promotion of You, the Company or both.  

“Services” means any public performance, display, review, commentary, or other content You create related or pursuant to this Agreement, Your relationship with Company, or Company’s Partners and includes, but is not limited to, posts on Social Media, which may include photos, videos, and textual components.

“Site” means all or any portion of a website, application, or Social Media platform containing written, video or photographic commentary, news or discussion on one or more particular topics and that includes any Hummingbird content.

“Social Media” means any social media platforms, such as Facebook, X (formerly Twitter), TikTok, Instagram, Snapchat, or any other platform, website, email campaign, or other current or future communications media, as well as any web hosting or applications You need or are required to use, support, and operate social media platforms.

Are Hummingbirds or Users employees of Company? Does Company hire Hummingbirds or Users?

No. This Agreement does not create an employment relationship between You and Company or between You and any Partner. You understand you have no rights as an employee. A User is a visitor and user of the Site and having Experiences, not an employee. To the extent You are a Hummingbird and providing Services, You are, and shall at all times remain, an independent contractor. You retain sole control over the manner and means by which You perform the Services, subject to the requirements set forth in the applicable Campaign Information. You are free to provide services to other parties, subject to the terms of this Agreement. Nothing in this Agreement, including the payment of Compensation, shall be construed to create an employer-employee relationship, joint venture, or partnership between You and Company or any Partner. As an independent contractor, You are not entitled to any employee benefits, including but not limited to health insurance, retirement benefits, paid leave, workers' compensation, or unemployment insurance. 

You represent to Company that:

You are at least eighteen years old, legally able and willing to enter into this Agreement and to perform its obligations under the Agreement;

You understand this Agreement is legal and creates binding obligations that are enforceable based on the Terms of the Agreement;

This Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which You are a party or by which You are bound; and

You will comply with this Agreement and all laws, rules, platform terms and conditions, and regulations in its performance under this Agreement;

Hummingbirds represent they are the original author and sole owner of the Hummingbird Content and have obtained all necessary rights, licenses, permissions, consents and the like, including but not limited to releases for any IP Rights, voices, images and appearances, with regard to all video, audio, photograph, graphics, illustration, or other multimedia content (and will provide Company with all such releases upon Company’s request) and further represent and warrant that You have not utilized AI-generated content in providing the Services;

No User content or Hummingbird Content created or obtained by a Hummingbird or User and delivered to Company or posted by a Hummingbird, User or Company under this Agreement shall infringe on or violate any IP Rights or applicable laws, including, but not limited to, the Federal Trade Commission Act and all rules and regulations promulgated by the Federal Trade Commission;

No User Content or Hummingbird Content delivered or posted by a Hummingbird, or User under this Agreement shall contain any profanity, scandalous, libelous, defamatory, obscene or unlawful matter or material and Hummingbirds agree not to defame or disparage any of the Company or Partners or any of their respective officers, directors, members, partners or employees (collectively, the “Company Parties”), and to cooperate with the Company Parties upon reasonable request, in refuting any defamatory or disparaging remarks by any third party made in respect of any of the Company Parties. Users and Hummingbirds agree You will not, directly or indirectly, make (or cause to be made) any comment or statement, oral or written, including, without limitation, in the media or to the press or to any individual or entity, that could reasonably be expected to adversely affect the reputation of any of the Company Parties or the conduct of its or their business; and

User content and Hummingbird Content which may access, use, upload materials, or otherwise connect to the Site may not contain malicious code, any computer virus, phishing material, counters, or other types of code that automatically attach cookies or other devices that track and collect user’s information.

Cybersecurity 

So, do not upload viruses or post your password on the dark web. More specifically: 

Hummingbird and Users represent and warrant You have implemented commercially reasonable, risk-based administrative, physical and technical safeguards to protect the confidentiality, integrity, and availability of any Company or Partner data, communications, records, confidential information, and personal information (“C/P Data”) and/or Company or Partner hardware, software, media and networking systems (“C/P Systems”) to which You have authorized access, as well as the security of User’s or Hummingbird’s own hardware, software, media and network systems (“Your Systems”) used to facilitate communications, provide services to or otherwise conduct business with Company or Partner. You shall ensure that all such safeguards are no less rigorous than accepted industry practices, such as relevant information security management standards published by the International Organization for Standardization (e.g., the ISO/IEC 27000 series), the National Institute of Standards and Technology (e.g., the NIST Cybersecurity Framework and Special Publications) or other industry standards for information security and comply with all applicable data protection and privacy laws. You shall notify Company promptly, and no later than 48 hours, after discovering any breach of security leading to the accidental or unlawful access, destruction, loss, alteration, or unauthorized disclosure of C/P Data and/or C/P Systems (a “Security Breach”). 

You will take immediate steps, at Your sole expense, to investigate, remedy, and mitigate any Security Breach, and shall collaborate and cooperate in good faith with Company or Partner so that Company or Partner may take any action or other steps that either reasonably determines to be necessary or appropriate in light of the Security Breach. You shall not make any third-party disclosures about the Security Breach without Company’s prior consent. The Parties shall immediately notify each other of any regulatory notice of inquiry, investigation or similar action received by either Party as a result of a Security Breach and shall assist and cooperate in good faith with each other in responding to and otherwise complying with any such action.

You shall indemnify, hold harmless and defend Company and Partner (including any affiliates) from any claims and other actions, and reimburse Company and Partner for all losses, expenses, and costs reasonably incurred by Company or Partner as a result of a Security Breach originating from Your System or other breach by You of this Paragraph.

Liability and Indemnification

You agree to indemnify, defend, and hold harmless Company and its Partners, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) arising out of resulting from any claims You have infringed any third party’s IP Rights, any breach by You of this Agreement, any breach of Your representations and warranties under this Agreement, or Your breach of the, Privacy Policy, or other agreement(s) between the parties.

LIMITATION OF LIABILITY. THE COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY REPUTATIONAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EXCLUSION WOULD FRUSTRATE AN ESSENTIAL PURPOSE OF THE CONTRACT), ARISING FROM BREACH OF THE AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF OR CONDUCT RELATING TO THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, BREACH OF PRIVACY, SHARING OF CONFIDENTIAL INFORMATION, OR LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR REPUTATIONAL DAMAGE. IN NO EVENT SHALL COMPANY'S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE TOTAL COMPENSATION ACTUALLY PAID TO YOU BY COMPANY IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

Data Privacy

You expressly consent to the use and disclosure of personally identifiable information and other data and information, including at least Your name, voice, picture, performance, or other likenesses, quotes, and biographical data, in whole or in part, together or separate, for the purposes related to the Campaign or Event. In addition, You acknowledge and agree that Company may disclose all information about You and that You may provide with respect to Your content or a Submission to the applicable Partner to which that content or Submission relates. 

Other use of any of Your personally identifiable information is subject to use or disclosure as described in Company’s then current Privacy Policy. 

Notwithstanding the foregoing, Your identity is not confidential, and Company or Partners may use of Your name, likeness, and other information as set forth in this Agreement at their sole discretion. Company may reference You as a provider of Services and use Your name, likeness, and logo, as applicable, in listings of people appearing on the Company web site and for other marketing and promotional purposes.

Site Funds, Compensation and Perks

To the extent You are due to receive Compensation for the performance of Services or participation in an Event, such Compensation will be processed through the Payment Processor and deposited to the Site Wallet or debit card as determined by the Company and as designated by You on the Company’s platform (the “Deposit Location”). You are solely responsible for providing and maintaining accurate and current information regarding the Deposit Location. 

Company will use commercially reasonable efforts to process Compensation to the Deposit Location within thirty (30) days following Company's confirmation that the applicable Services have been satisfactorily completed. Compensation payment timing may vary depending on the Payment Processor's processing schedule. Company shall not be liable for any delays in payment caused by the Payment Processor, Your failure to provide accurate payment information, or circumstances beyond Company's reasonable control.

Company may, in its sole discretion, withhold, offset, or recoup any Compensation otherwise payable to You if: (a) You have failed to satisfactorily complete the Services in accordance with the applicable Campaign Information or participate in the Event as required; (b) You have breached any provision of this Agreement; or (c) Company is required to do so by law or legal process. Company will provide reasonable notice to You before exercising any right of offset or recoupment, except where prohibited by law.

Company reserves the right to suspend or terminate any agreement with any Partner or You at any time. Company shall not be obligated to pay any Compensation or provide any Perks other than as set forth in an accepted Campaign Information or Invitation. If Company suspends or terminates this Agreement or a Campaign, You will be entitled to Compensation only for Services or participation satisfactorily completed prior to the effective date of such suspension or termination.

Payment Intermediary; Limited Agency

The Site provides a virtual wallet service (the “Site Wallet”) to facilitate payments from Partners to You. To the extent permitted by law, the Site acts as a limited payment agent for the applicable Partner solely for the purpose of receiving, holding, and disbursing funds to You as the Partner-designated receiver, and as a limited agent for You solely to receive funds from the Partner. No other agency, partnership, joint venture, or fiduciary relationship is created by these Terms.

Funds credited to a Site Wallet are held in pooled accounts with one or more U.S. depository institutions.  The Site is not a bank, and Site Wallet balances are not deposit accounts, are not insured by the FDIC in Your name, and are not held in trust unless expressly required by applicable law.

Funding; Settlement; Payouts

Partners have authorized the Company to debit their designated payment method or account and to credit the Site Wallet for payment to You. Unless otherwise stated on the Site, funds become eligible for payout after (i) the Partner’s payment clears, (ii) any applicable hold or review period expires, and (iii) no dispute, refund, reversal, or chargeback is pending.

Subject to these Terms, eligible Site Wallet funds will be disbursed to You in accordance with minimum thresholds and published payout mechanisms. The Company may require payment via gift cards, impose withdrawal limits, fees, or longer review times for risk, compliance, or operational reasons.

You authorize the Company to (i) reverse or adjust Site Wallet credits for refunds, returns, disputes, ACH returns, or card chargebacks; (ii) debit your Site Wallet or linked account for negative balances; and (iii) pursue collection (including off‑Site invoicing) if balances are insufficient.

When the Site provides an electronic funds transfer service but does not hold Your account, the responsibilities described in Regulation E for non‑account‑holding service providers apply. The Company will provide required disclosures (if any) and coordinate with the account‑holding institution as appropriate as required by 12 CFR 1005.14.

Regulatory Status

The Company may be subject to federal anti‑money laundering and recordkeeping obligations depending on how transactions are structured. The Company reserves the right to conduct identity verification, sanctions screening, and other compliance checks (including collection of tax and beneficial‑ownership information) and to decline, delay, or reverse any transaction to comply with law or Company risk controls.

The Site Wallet services are structured to fit within exemptions from “money transmitter” status where applicable (for example, the payment‑processor exemption when acting by agreement with the seller and using a clearance and settlement system) and will rely on regulated partners for money movement.

Risk and Compliance Holds

The Company may place a hold or freeze on Site Wallet funds, suspend payouts, or require additional information where the Company suspects fraud, abuse, violation of these Terms or policies, errors, unauthorized activity, or in response to legal process or regulatory inquiry.

Errors; Unauthorized Activity; Disputes

For disputes between a Partner and You regarding Site Wallet funds (including alleged non‑performance, quality, or scope disputes), the Company may hold funds while it requests and reviews information from the parties. The Company’s resolution process is an administrative procedure; it is not a court or arbitration proceeding and does not waive any party’s legal rights.

If a transaction involves an electronic funds transfer from or to a consumer account, the responsibilities of the account‑holding financial institution and the applicable service‑provider rules under the Electronic Fund Transfer Act (Regulation E) may apply. The Company will comply with its obligations (if any) as a non‑account‑holding service provider and will direct You to Your account‑holding institution for error resolution and provisional credit procedures. 

You must promptly notify the Company of suspected errors, unauthorized activity, or compromised credentials. The Company is not responsible for losses arising from compromised user accounts, shared credentials, or failure to implement reasonable security on user devices.

Service Modification or Termination 

The Company may modify, suspend, or discontinue the Site Wallet service. On wind‑down, the Company will attempt to disburse undisputed Site Wallet funds to the entitled Users; any remaining amounts will be handled as unclaimed property under applicable law.

No Preferential Rights

You acknowledge that Site Wallet funds are held in pooled custodial accounts. You have only a pro rata beneficial interest in the pooled funds equal to the balance shown in Your Site Wallet, subject to offsets, legal process, and these Terms.

Unclaimed or Dormant Funds; Iowa Escheatment

Site Wallet funds are deemed dormant if there is no User‑initiated activity for the period specified in our Dormancy Policy. Before classifying funds as abandoned, the Company will provide any notices required by law.

If funds remain unclaimed after the applicable dormancy period, the Company will remit the funds to the State of Iowa in accordance with Iowa’s unclaime d property laws (Uniform Disposition of Unclaimed Property Act, Iowa Code ch. 556) and related rules of the Treasurer of State. After remittance, claims must be directed to the State.

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II. USER-SPECIFIC TERMS AND CONDITIONS

Users Uniquely Agree to the Following Terms and Conditions:

As a User, you agree to the following sections related to your use of the Site.  If you create content at the request of the Company, you are a Hummingbird and the Terms for Hummingbirds listed below apply.  If a User accepts an Invitation, or participates in an Event, User agrees that the benefits or Compensation and/or any Perks described in the applicable Invitation or Event information (the “User Activity”) represent Your entire compensation for all such User Activity. Unless set out differently in any User Activity-specific information, there is no reimbursement for any costs or expenses regarding any User Activity. User Activities may provide for additional or optional Perks or Compensation opportunities.  While the terms of this Agreement will control as to other provisions, the applicable User Activity information will control regarding any Perks, Compensation or related items .

Except as described above, Company does not pay or provide any type of monetary incentive to Users.Company shall not be liable for any delays or failure to make payments by Partners for any reason. Company reserves the right to suspend or terminate any agreement with any Partner or User at any time. Company will not be responsible to User or any governing body for any taxes relating to any Compensation, Perks or other amounts that User receives under this Agreement, including but not limited to federal or state income tax, social security tax, or unemployment tax.

User shall bear any and all costs and shall indemnify Company against the any and all costs, taxes, fees, or expenses, including, without limitation, penalties, interest and attorneys’ fees associated with any User breach of this Agreement, any User failure to pay taxes on Compensation or other amounts received hereunder, any Company audits related to any User tax issues, or any other tax- related liability. Company shall be entitled to contest, pursuant to applicable law and at its own expense, any taxes it is ultimately obligated to pay, and User shall reasonably cooperate with any such a case contest.

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III. HUMMINGBIRD-SPECIFIC TERMS AND CONDITIONS

There are some rules and terms that apply specifically to our Hummingbirds because you are being asked to create content for a Partner or act as an influencer regarding a Partner.  

What if I am both a User and a Hummingbird?

It will often be the case that You would meet the definition of both a User and a Hummingbird. If you do qualify as both, the Terms relating to being a Hummingbird apply and are superior to the User-specific terms to the extent there is any conflict or inconsistency. The General Provisions and Legal Notices apply to both Users and Hummingbirds equally.

Who can be a Hummingbird?

At this time, Hummingbirds and Users must be over the age of 18 and meet any of the other qualifications included in this Agreement or required by a particular Invitation. 

Are Campaigns and Perks confidential? What about Your information privacy?

We don’t want to mislead anyone. You agree to and will include clear disclosure on Your content that You are participating in a program sponsored by Partner, and that You will cooperate with Company’s reasonable instructions regarding the format, content and placement of such disclosure.  You will comply with and hereby certify You have complied with all applicable laws and regulations. Company will safeguard Your information in the same way that it safeguards its own. 

Confidentiality

You acknowledge that in the course of providing Services under this Agreement, You may acquire certain Confidential Information. You shall not: (a) disclose such Confidential Information to any third party without the prior written consent of Company, (b) will notify Company if You become aware of any breach of confidentiality in any manner whether through (i) Your negligence, acts or omissions, or (ii) computer virus, or theft of Your computer or login information; or (c) use the Confidential Information for any purpose other than to carry out the Services contemplated under this Agreement. You acknowledge that misuse or disclosure of any Confidential Information by You will give rise to irreparable injury to Company or the owner of such information, which is inadequately compensable in damages. Accordingly, Company or such other party may seek and obtain injunctive relief against the breach or threatened breach of these Confidentiality Obligations, in addition to any other available legal remedies.

What is not covered by this Agreement?

The Agreement does not cover anything other than the Services, which is the material a Hummingbird is creating just for us. We do not own a Hummingbird’s name, image, likeness, or any other material a Hummingbird creates. And no, we are not looking to own a Hummingbird’s first movie, a Hummingbird’s entire podcast, or a Hummingbird’s first book. This Agreement is limited to its Purpose, which is to help with a Campaign and help us grow both our business and a Hummingbird’s profile.     

What is covered by this Agreement?

All material created for us as part of the Services are subject to the Terms of this Agreement. If a Hummingbird wishes to provide Services as a Hummingbird, you may do so only in compliance with the Terms of this Agreement. Hummingbirds may use Company’s website and provide Services as a Hummingbird solely for lawful purposes and only in accordance with the Terms of this Agreement, the Invitation, and any other agreement a Hummingbird is required to agree to before providing Services.

Do I have to agree to this Agreement to be a Hummingbird?

Yes. You are required to accept the Terms of this Agreement before providing Services as a Hummingbird. If You do not choose to accept the Terms, You will not be a Hummingbird. 

What Services do Hummingbirds provide? What are Hummingbirds required or expected to do?

Hummingbirds help build community through posting and sharing Hummingbird Content on Social Media related to Partners and Campaigns for the limited Purpose identified by the Company. 

Company may provide Campaign or Invitation to Hummingbird from time to time. If You indicate an interest in the Campaign, if You are selected for the Campaign, and if You accept the Campaign Invitation, You agree to provide Company or the Partner with the Services as more specifically described in the applicable Campaign Information or Invitation. 

Company may communicate with you through a variety of ways and you agree that communication through email, text message, Short Messaging Service (SMS), or other electronic methods.  You understand that communication through electronic methods is done over the internet or cellular connections that may not be encrypted.  Company cannot promise electronic methods of communication are secure and such messages may be read by others.  Please do not send sensitive (private) information to Company by text message or SMS.  This includes information about Your health, Your social security number or driver’s license number, insurance information, financial or banking information or any other information You would not want to be read by others.  

You will be solely responsible for the performance of the Services and hosting, maintenance, and operation of Hummingbird’s Services and/or use of any Social Media or Site.

You agree that all Services provided or created with respect to a Campaign can be made available to the public and to Company and Company’s Partner(s). You also agree all Services provided or created with respect to a Campaign may be made accessible to others according to the Campaign Information’s timeline or expectations.   

You are solely responsible for moderating any submission, comments, responses or other feedback (“Submissions”) from any third party in response to any of Hummingbird’s Services on a Third Party Site and agree that neither Company nor Partners have any responsibility for moderating any Submissions.

You agree to promptly remove any Submissions or Hummingbird Services from a Third Party Site upon Company’s or Partner’s request.

You will operate Social Media or any Site and share Content in accordance with Company’s Privacy Policy which is posted on the Company website at https://thehummingbirds.co/ (“Privacy Policy”). If Hummingbird chooses or is required to maintain a separate privacy policy, Hummingbird’s privacy policy must contain Terms no less protective of personal information than the terms of Company’s Privacy Policy.

How are Hummingbirds compensated?

If You accept a Campaign Invitation, You agree that the Compensation and any Perks described in the applicable Campaign Information represent Your entire compensation for all Services performed in connection with that Campaign. Unless set out differently in a Campaign Information or Invitation, there is no reimbursement for any costs or expenses incurred in performing the Services. Campaign Information or Invitations may provide for additional or optional compensation opportunities, such as royalties or payments for extended use of Your Content at the discretion of such Partner. While the terms of this Agreement will control as to other provisions, the applicable Campaign Information or Invitation will control on any Compensation or payment terms regarding such additional or optional compensation opportunities. To the extent Compensation passes through the Site, it will be managed through the Site Wallet process described above. 

Company or Partner will pay Hummingbird the Compensation set forth in the applicable Campaign Information or Invitation for Services satisfactorily completed in accordance with the Campaign Information or Invitation. 

Hummingbird acknowledges and agrees that, as an independent contractor, Hummingbird is solely responsible for all tax obligations arising from Compensation and any other amounts received under this Agreement, including, without limitation, federal and state income taxes, self-employment taxes, and any sales, use, excise, or similar transactional taxes applicable to the performance of the Services. Company will not withhold any taxes from Compensation paid to Hummingbird unless otherwise directed by an entity with legal authority to do so. Company will not be responsible to Hummingbird or any governing body for any taxes relating to any Compensation, Perks or other amounts that Hummingbird receives under this Agreement, including but not limited to federal or state income tax, social security tax, or unemployment tax.

Hummingbird shall bear any and all costs and shall indemnify Company against any and all costs, taxes, fees, or expenses, including, without limitation, penalties, interest and attorneys’ fees associated with any Hummingbird breach of this Agreement, any Hummingbird failure to pay taxes on Compensation or other amounts received hereunder, any Company audits related to any Hummingbird tax issues, or any other tax-related liability. Company shall be entitled to contest, pursuant to applicable law and at its own expense, any taxes it is ultimately obligated to pay, and Hummingbird shall reasonably cooperate with any such contest.

Can I reach out to Partners Separately After Company Introduces Me?

No.  By using Company’s connections and services, You agree that after we have introduced you to a Partner, You will not contact a Partner about a new Campaign or other marketing opportunities without our prior written permission while working as a Hummingbird and for a period of twelve (12) months thereafter, beginning from the date the last Event or Campaign ends. Partners sign up because they want to use Company’s connections and services to create and complete campaigns, and Company makes its living by connecting Partners with You and others like You and supporting the ongoing collaborations. Reaching out to Partners outside of the Company is prohibited. Partners have shared they do not like to receive requests directly from creators and influencers; the Partners have chosen to work with and through the Company because they prefer a one-stop software to collaborate with You. 

Who owns Hummingbird’s Services? What about my intellectual property rights?

You get to keep the rights You had and You let Company and its Partners own and use any rights needed related to Your work, the Hummingbird Content created for the Company’s Purpose, as follows: 

Hummingbird (You) represents You own all IP Rights used, performed, altered, or amended in any work done for Company or any Partner. If You do not have the right to use a product, song, video clip, trademark, or other item, please do not use it when creating Your Content or performing any Services. 

Second, after we connect You either with a Partner or a Partner’s product or service for You to evaluate and You create Hummingbird Content, the Company owns the Hummingbird Content. Basically, in order to be in business, we need to be able to promote You and Your Hummingbird Content and stop others from copying Your Hummingbird Content illegally. We don’t own anything else You create. 

Except as expressly provided in the applicable Campaign Information, Company shall own, does own, and Hummingbird agrees to assign and hereby does assign all of Hummingbird’s IP Rights in the completed Hummingbird Content. You understand this includes the right to make shorter clips, still images, or other materials as Company sees fit to accomplish the Purpose. To the extent any of Hummingbird’s rights are not owned by or assigned to Company, Hummingbird hereby grants a fully paid up, royalty free, worldwide, non-exclusive, sublicensable, irrevocable license to use, modify, edit, translate, apply, affix, copy, distribute, publish, perform, prepare derivative works based on, and collect payments for any IP Rights for the limited Purpose of this Agreement without additional compensation, permission or notification to Hummingbird or any third party.

You understand and agree that Company may license, sell or assign any Hummingbird Content or any portion thereof to a Partner solely for the limited Purpose of this Agreement or any Campaign Invitation. You understand this includes the right for a Partner to use content for advertising, organic posts on social or on their website.   

Third, You get to keep using and posting the Hummingbird Content You create for a Campaign as well. 

Company hereby grants to Hummingbird a non-exclusive, revocable license to: (i) display the Hummingbird Service and/or Submissions on Hummingbird’s Site in accordance with the applicable Invitation. Hummingbird agrees that if Hummingbird commits a material breach of any provision of this Agreement or at any time Hummingbird fails or refuses to fulfill Hummingbird’s obligations hereunder, then Company may terminate this Agreement and Hummingbird shall immediately remove all references to Company or Partner, including any Hummingbird Content related to any Campaign from Hummingbird’s blog. 

Fourth, we own our website, software and the system that makes all of this possible. 

We own the system that makes all of this possible. All Company software, processes, contracts with Partners, content, and all IP Rights therein or related thereto, are owned by Company or its licensors.

Fifth, You agree to help us if someone tries to steal any Hummingbird Content You create or use it for any unauthorized purpose. 

At the Company's reasonable request, Hummingbird shall use good faith efforts to cooperate with the Company and its affiliates, its Partners and affiliates, and each of its and their respective employees, attorneys or other legal representatives ("Attorneys") in connection with any claim, litigation or judicial or arbitral proceeding which is material to the Company and is now pending or may hereinafter be brought by or against the Company or any Partner. Hummingbird’s duty of cooperation will include, but not be limited to (a) meeting with the Company's and/or its Affiliates' Attorneys by telephone or in person at mutually convenient times and places in order to state truthfully Hummingbird’s knowledge of matters at issue and recollection of events; (b) appearing at the Company's, Partner’s and/or their Attorneys' request (and, to the extent possible, at a time convenient to Hummingbird that does not conflict with the needs or requirements of Hummingbird’s then-current employer) as a witness at depositions or trials, without necessity of a subpoena, in order to state truthfully Hummingbird’s knowledge of matters at issue; and (c) signing at the Company's, its Affiliates' and/or their Attorneys' requested declarations or affidavits that truthfully state matters of which Hummingbird has knowledge. The Company shall reimburse Hummingbird for the reasonable expenses incurred by Hummingbird in the course of Hummingbird’s cooperation hereunder. The obligations set forth in this Section shall survive any termination or revocation of this Agreement.

Sixth, You agree to use our services properly and for Your own benefit, not someone else’s. 

Except as permitted pursuant to this Agreement, You (and any third party acting on Your behalf) agree not  to: (a) interfere in any manner with the operation of the Company or attempt to gain unauthorized access to Company’s software, website, or processes; (b) engage with a Partner about any Campaign or other marketing opportunities without prior written permission from Company for a period of three years from the time Company introduces you to a Partner; (c) remove, alter or obscure any copyright notice or any other proprietary notice that appears on or in Company’s, a Partner’s, or a third party’s content or technology; or (d) share, display, license, sell, or otherwise use any Hummingbird content or Submissions in any manner (including without limitation to generate revenue for Hummingbird) other than as set forth in the applicable Invitation. Hummingbird will defend, indemnify and hold harmless Company and its Partners, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) incurred or arising from any claim or action by a third party arising out of or relating to the Hummingbird content, Services, or Submissions, or Company’s or a Partner’s use thereof.

Can Hummingbirds post content or provide Services for other third parties?

Of course! You have the right to provide content services to others during the term of this Agreement, just please make sure You create the Content we’ve asked for in a timely and professional manner. If You cannot do so, please let us know. Otherwise, You understand and agree not to provide content services if: (a) such other services interfere with Hummingbird’s timely and professional performance of the Services to Company and/or Partners; (b) such other services require the disclosure or use of Confidential Information; or (c) such other services conflict with any other agreements between Company and/or Hummingbird, such as an exclusivity agreement.

Are Hummingbirds guaranteed any Campaign, posts, content, Compensation, or Perks?

No. By clicking “I accept,” You agree and understand that Company has no obligation to propose Campaign Information to You, to pay any Compensation, or to provide any Perks, and that Company may receive content services from other Hummingbirds during the Term of this Agreement.

Are there any specific terms for Campaigns?

Yes, there are several terms, provided below, that are specific to when You participate in a Campaign. 

Social Media. With respect to Social Media account integrity, You must maintain accurate and current Social Media account information on the Company platform and shall only opt into, accept, and complete Campaigns using the Social Media account submitted for review and selected by Company for the applicable Campaign. You may not accept a Campaign opportunity using one Social Media account and complete or publish required content from a different account without Company’s prior written approval.

You may express interest in a Campaign through only one (1) Social Media account per Campaign and may not submit, opt in, apply, or otherwise seek selection for the same Campaign through multiple accounts controlled by the same individual. Multiple submissions for the same Campaign by or on behalf of the same individual may be rejected or removed in Company’s sole discretion.

If You maintain multiple Social Media accounts, You must clearly disclose all such accounts to Company and may only participate in Campaigns through accounts approved by Company. Posting Campaign content from an unapproved, undisclosed, substitute, or alternate account, or using multiple accounts to seek selection for the same Campaign, may result in rejection of the content, forfeiture of any Perks associated with the Campaign, suspension from Campaign opportunities, or removal from the Company platform or community, in Company’s sole discretion.

Trial Reels. “Trial Reels” are an Instagram feature that allows a Reel to be shared on a limited or test basis, typically to non-followers or a restricted audience, for the purpose of measuring potential performance before broader publication. Trial Reels are not distributed in the same manner as a standard public Reel and may not be visible to Your followers, friends, family, or normal audience. Unless expressly approved in writing by Company for a specific Campaign, any Trial Reel shall not satisfy a Campaign posting requirement, content requirement, or completed post obligation. For avoidance of doubt, where a Campaign requires a Reel or other post, the required content must be published as a standard public post visible to Your normal audience in accordance with the applicable Campaign Information.

Repurposing of Campaign Content by Partners. You acknowledge and agree that any Hummingbird Content created, submitted, or published in connection with a Campaign may be used, reused, edited, modified, displayed, distributed, reposted, licensed, sublicensed, or otherwise repurposed by Company, the applicable Partner, or their respective affiliates, successors, licensees, and assigns, in their sole discretion, without further notice to or prior approval from You. Further, You agree that the Perk provided in connection with the applicable Campaign constitutes the full and complete compensation for the creation of such Hummingbird Content and for all rights granted under this Agreement, including any present or future repurposing or reuse of the Hummingbird Content. You shall not be entitled to any royalties, residuals, usage fees, additional compensation, or other payment of any kind arising from any reuse or repurposing of such Hummingbird Content. Unless otherwise expressly stated in writing by Company, the rights granted with respect to the Hummingbird Content shall be worldwide, perpetual, irrevocable, and fully transferable.

Content Availability Period. Unless otherwise expressly stated in the applicable Campaign Information or approved in writing by Company, all Hummingbird Content created, posted, or published in connection with a Campaign must remain publicly visible and accessible on the applicable Social Media account for a minimum period of six (6) consecutive months following the original publication date. You shall not archive, delete, hide, materially alter, make private, or otherwise remove access to such Hummingbird Content during the required six (6) month period without Company’s prior written consent. Removal or inaccessibility of Campaign content during such period may constitute an incomplete Campaign submission and may result in forfeiture of Perks, suspension from future Campaign opportunities, or removal from the Company platform or community, in Company’s sole discretion. Notwithstanding the foregoing, if Hummingbird Content is removed, hidden, or made inaccessible due to circumstances reasonably beyond Your control (such as a platform error or account suspension by the Social Media platform), You will notify Company within forty-eight (48) hours and shall use commercially reasonable efforts to restore access to such Hummingbird Content. If access is restored within seven (7) calendar days of removal, such removal shall not be deemed a violation of this requirement.

No Return of Campaign Products. If You receive, purchase, are reimbursed for, or otherwise obtain any product in connection with a Campaign, including without limitation any Offers campaign or content creation campaign, You agree that such product is intended for genuine trial, use, review, or participation in the Campaign and shall not be returned, exchanged for value, or refunded through the retailer, manufacturer, Partner, or any third party. You acknowledge that product returns associated with Campaign participation may negatively impact the applicable Partner’s sales performance, retail standing, inventory metrics, promotional results, or other business objectives. Accordingly, You agree not to seek or process a return, chargeback, or refund for any Campaign-related product. Notwithstanding the foregoing, this restriction shall not apply to any product that is (a) subject to a manufacturer or governmental recall, (b) materially defective or damaged in a manner that poses a health or safety risk, or (c) required to be returned by applicable law. In any such event, You will notify Company before initiating any return.  

If You have a negative product experience, quality concern, or other feedback regarding the product, You agree to promptly notify only the Company so that such feedback may be reviewed and, where appropriate, shared with the applicable Partner. Any violation of this requirement may result in forfeiture of Perks, reimbursement obligations, suspension from future Campaign opportunities, or removal from the Company platform or community, in Company’s sole discretion.

Campaign Selection and Participation Opportunities. You acknowledge that expressing interest in, applying for, or opting into a Campaign does not guarantee selection, invitation, or participation in that Campaign. Company and the applicable Partner may determine Campaign participation based on a variety of business, creative, audience, geographic, timing, product, retailer, brand safety, content quality, capacity, or other campaign-specific considerations. Because Campaign needs vary by Partner and by opportunity, not all interested hummingbirds will be selected for every Campaign, and prior participation in one Campaign does not create any expectation of future selection. Company is not obligated to provide a minimum number of Campaign opportunities, invitations, or selections of You. Company may make Campaign selection and/or participation decisions in its sole discretion and is not required to disclose, explain, or provide individualized feedback regarding selection or non-selection decisions, except as otherwise required by applicable law. Company remains committed to operating the platform in a manner intended to align hummingbirds with opportunities that best fit the needs of each Campaign.

Creator Due Diligence and Campaign Commitment. Company may provide Campaign Information, product details, and brand background materials for convenience in the campaign brief, but You acknowledge that such materials may be limited, summarized, or incomplete and the Company does not have full control over Campaign materials. You are solely responsible for conducting any personal research, review, or due diligence You deem necessary regarding a Partner, brand, retailer, product, ingredients, claims, certifications, business practices, values, or other matters that may be relevant to You before expressing interest in or accepting a Campaign.

By opting into, confirming their spot, or otherwise committing to participate in a Campaign, You represent that You have independently determined the opportunity is suitable and consistent with Your own preferences, standards, and values. Once selected for a Campaign, Your participation slot may be reserved based on that commitment, and You may not withdraw, refuse participation, or fail to complete the Campaign based on information You could reasonably have reviewed prior to opting in. Withdrawal or non-participation after selection for reasons relating to personal preferences, brand alignment, product attributes, or similar considerations known or discoverable before opt-in may result in removal from the Campaign, forfeiture of any associated Perks, reduced priority for future opportunities, suspension from Campaign opportunities, or removal from the Company platform or community, in Company’s sole discretion.

Receipt Verification. If You participate in any Company program, campaign, or promotion involving rebates, cash back, reimbursements, or similar purchase-based incentives, including any “Offers” campaign, You agree that each receipt, proof of purchase, or transaction record submitted to Company must be genuine, accurate, complete, and used only one (1) time for one (1) qualifying purchase submission. You may not reuse, resubmit, duplicate, alter, manipulate, fabricate, or otherwise attempt to obtain multiple incentives from the same receipt, proof of purchase, or transaction. You further agree not to submit receipts belonging to another person or relating to purchases not personally made by You unless expressly authorized in writing by Company. Any suspected misuse, duplicate receipt submission, fraudulent activity, or violation of this requirement may result in rejection of the submission, forfeiture of any rebate, cash back, Perks, or incentive, suspension from Campaign opportunities, removal from the Company platform and community, and any other remedies available to Company in its sole discretion. The remedies set forth in this requirement are in addition to, and not in lieu of, any rights or remedies available to Company under this Agreement, including the indemnification obligations set forth therein. 

Offers Availability and Redemption Limits. If You participate in any Offers campaign, You acknowledge that saving, bookmarking, claiming, viewing, or expressing interest in an Offer does not reserve inventory, guarantee redemption availability, create a contract for payment, or otherwise entitle You to receive any rebate, cash back, reimbursement, Perks, or other incentive currently or in the future. Offers may be limited by quantity, budget, time period, geography, retailer eligibility, submission caps, verification status, or other criteria established by Company or the applicable Partner, and may be modified, paused, or terminated at any time in Company’s sole discretion. You are solely responsible for confirming that an Offer remains active and eligible for redemption before making any purchase and again before submitting any receipt or proof of purchase. If an Offer has expired, reached its limit, been paused, or is otherwise unavailable at the time of purchase or submission, You will not be entitled to compensation, reimbursement, or any other remedy arising from such unavailability. Company shall not be liable for any reliance damages, out-of-pocket costs, or losses incurred by You in connection with any purchase made in anticipation of an Offer that is no longer available at the time of submission.

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IV. LEGAL NOTICES

This Agreement will be governed in all respects exclusively by the laws of the State of Iowa, U.S.A. as such laws apply to contracts between Iowa residents performed entirely within Iowa without giving effect to its conflict of law provisions. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in Polk County, Iowa and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Company. Both parties waive the right to a jury trial.

This Agreement,  and the Privacy Policy supersede any oral or written proposal, prior agreement or other communication between Company and You. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any of Your rights or obligations under this Agreement may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Company. Any assignment in violation of the foregoing will be null and void. Company may freely assign this Agreement or any of its rights under this Agreement. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires under this Agreement any right or ability to bind or enter into any obligation on behalf of the other.

Your privacy is critically important to us. It is Company’s policy to respect Your privacy regarding any information we may collect while operating our website. Our Privacy Policy, which is incorporated to this Agreement and can be found at https://www.thehummingbirds.co/privacy-policy, applies to Company and Company’s website, including any pages therein found at https://hummingbirds.com (hereinafter, “us”, “we”, or “https://www.thehummingbirds.co”). We respect Your privacy and are committed to protecting personally identifiable information You may provide us through the Website.

We have adopted the Privacy Policy to explain what information may be collected on our Website, how we use this information, and under what circumstances we may disclose the information to third parties. This Privacy Policy applies only to information we collect through the Website and does not apply to our collection of information from other sources.

This Privacy Policy sets forth the general rules and policies governing Your use of our Website. Depending on Your activities when visiting our Website, You may be required to agree to additional Terms and conditions.

Website Visitors

Like most website operators, Company collects non-personally identifying information of the sort that web browsers and servers typically make available, such as the browser type, language preference, referring site, and the date and time of each visitor request. Company’s purpose in collecting non-personally identifying information is to better understand how Company’s visitors use its website. From time to time, Company may, and You hereby agree to permit, release non-personally identifying information in the aggregate, e.g., by publishing a report on trends in the usage of its website.

Company also collects potentially personally identifying information like Internet Protocol (IP) addresses for logged in users and for users leaving comments on https://www.thehummingbirds.com blog posts. Company will only disclose logged in user and commenter IP addresses under the same circumstances that it uses and discloses personally identifying information as described below.

Gathering of Personally Identifying Information

Certain visitors to Company’s websites choose to interact with Company in ways that require Company to gather personally identifying information. The amount and type of information that Company gathers depends on the nature of the interaction. For example, we ask visitors who sign up for partnerships at https://app.thehummingbirds.co/ to provide a username and email address.

Security

The security of Your Personal Information is important to us but remember that no method of transmission over the Internet, or method of electronic storage is 100% secure. While we strive to use commercially acceptable means to protect Your Personal Information, we cannot guarantee its absolute security. If and to the extent the Site is a “financial institution” for purposes of a covered activity, it will implement the FTC’s Safeguards Rule, including risk assessment, access controls, encryption, monitoring, vendor oversight, incident response, and secure disposal as required by 16 CFR part 314 and 16 CFR 682.

Advertisements

Ads appearing on our website may be delivered to users by advertising partners, who may set cookies. These cookies allow the ad server to recognize Your computer each time they send You an online advertisement to compile information about You or others who use Your computer. This information allows ad networks to, among other things, deliver targeted advertisements that they believe will be of most interest to You. This Privacy Policy covers the use of cookies by Company and does not cover the use of cookies by any advertisers.

Links To External Sites

Our Service may contain links to External Sites that are not operated by us. If You click on a third party link, You will be directed to that third party’s site. We strongly advise You to review the Privacy Policy and Terms and conditions of every site You visit. We have no control over, and assume no responsibility for the content, privacy policies or practices of any third party sites, products or services.

Cookies

To enrich and perfect Your online experience, Company uses “Cookies,” similar technologies and services provided by others to display personalized content, appropriate advertising and store Your preferences on Your computer. A cookie is a string of information that a website stores on a visitor’s computer, and that the visitor’s browser provides to the website each time the visitor returns. Company uses cookies to help Company identify and track visitors, their usage of https://www.thehummingbirds.co, and their website access preferences. Company visitors who do not wish to have cookies placed on their computers should set their browsers to refuse cookies before using Company’s websites, with the drawback that certain features of Company’s websites may not function properly without the aid of cookies. By continuing to navigate our website without changing Your cookie settings, You hereby acknowledge and agree to Company’s use of cookies.

Data Deletion

If You would like Your data deleted from our application, please email help@hummingbirds.com

Privacy Policy Changes

Although most changes are likely to be minor, Company may change its Privacy Policy from time to time, and in Company’s sole discretion. Company encourages visitors to frequently check this page for any changes to its Privacy Policy. Your continued use of this site after any change in this Privacy Policy will constitute Your acceptance of such change, which is incorporated into this Agreement.

Force Majeure

Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) to the extent such failure or delay results from causes beyond the reasonable control of such party, including but not limited to acts of God, natural disasters, pandemics, governmental actions, failures of third-party platforms or service providers, internet service interruptions, cyberattacks, or other events beyond the party's reasonable control. The affected party shall provide prompt notice to the other party and shall use commercially reasonable efforts to mitigate the impact of any such event.

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Acceptance of this Agreement

BY CLICKING ON THE “ACCEPT” BUTTON OR BY OTHERWISE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE COMPANY’S SITE OR PROVIDING SERVICES, YOU ACKNOWLEDGE YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AS OF THE DATE ON WHICH YOU FIRST CLICK THE “ACCEPT” BUTTON, OTHERWISE ACCEPT THIS AGREEMENT, OR ACCESS OR USE THE COMPANY’S SITE OR PROVIDE SERVICES (THE “EFFECTIVE DATE”).

IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, THE COMPANY IS UNWILLING TO ALLOW YOU TO PROVIDE SERVICES AS A USER OR A HUMMINGBIRD.

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