hummingbirds, inc. terms and conditions

Welcome!  This site is designed to connect content creators (“Hummingbirds”) with company customers (“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 admin@thehummingbirds.co.  

For our Partners.

Congratulations and thank you for selecting a Package.  By selecting a Package and paying for the Package, Partner agrees to the additional Terms set forth below.

This Hummingbird Agreement (“Agreement”) is between Hummingbirds, Inc. a Delaware C-Corp (“Company”), and you (an individual, or if you represent an entity or other organization, that entity or organization) (“you” or “Partner”) and any of Partner’s successors or assigns. This Agreement provides the Terms and conditions under which content creators, which may include individuals or entities which we call “Hummingbirds,” may provide creation and distribution of content services (the “Services,”) as more fully defined and explained below.

Effective Date

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

Scope of this Agreement

All Hummingbird Services are subject to the Terms of this Agreement. If you wish to obtain Services from a Hummingbird, you may do so only in compliance with the Terms of this Agreement. Partners may use Company’s website to seek and obtain Services from a Hummingbird solely for lawful purposes and only in accordance with the Terms of this Agreement, the Campaign, and any other agreement you are required to agree to before providing Services.

Amendments to the Agreement

Company reserves the right to modify, suspend, or discontinue the Hummingbird program (or any portion thereof), or your right to obtain Services, with or without notice to you, at any time, in its sole discretion. Your continued access to Company’s Site and/or your continued use of Services will constitute acceptance of any changes.

Partners can only make changes to this Agreement if the changes are in a written agreement signed by both an authorized representative of Company and the Partner.

Hummingbirds

Our Hummingbirds are independent content creators, many of whom work, live, and play in a specific geographic location or Territory, with specified groups of people or businesses, or participate in specified types of activities.  Hummingbirds have asked Company to find Partners to promote Partners via Social Media.  Partner understands that Company has sole discretion on selection of Hummingbirds to present to Partner, after which Partner may select Hummingbirds for work on Partner’s Campaign.  Partner understands that, at this time, Hummingbirds must be over the age of eighteen and meet any of the other qualifications included in this Agreement or required by a particular Event. By accessing this Agreement or providing Services, Partner represents it is also either an entity in good standing or an individual who is at least eighteen years of age. 

Agreement Required to Be a Partner

You are required to accept the Terms and conditions of this Agreement before seeking or obtaining any Services or Content from a Hummingbird. If you do not choose to accept the Terms and conditions, you will not be a Partner. 

please carefully read this agreement

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 “Event 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 responsibilities, Partner goods or services, and the identity of the Partner, relating to an opportunity for the Hummingbird to provide Services for a Partner.

“Charm Values” means, collectively, Company’s Charm Values located at https://thehummingbirds.co/ and any other policy, guidelines, Terms of use, Terms of service, code of conduct, or instructional materials provided or made available by Company to Hummingbird from time to time.

“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, and business partners.

“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.

“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 Hummingbird Services.

“Services” means any public performance, display, review, commentary, or other content Hummingbird creates related or pursuant to this Agreement, Hummingbird’s 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, 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 Hummingbird requires to use, support, and operate social media platforms.

This is Not an Employment Contract

Company does not employ Hummingbirds and this Agreement does not create an employment relationship between Hummingbird and Partner or between Company and Partner. Hummingbird has no rights as an employee of Company or Partner.

Partner understands Company operates an online platform allowing Partner to connect through Company’s Site with Hummingbirds who have the option and discretion to provide Services.  

Scope of Company’s Services

Company provides a Site to enable Partner to submit Campaigns to be conducted at one or more locations depending on the Package selected.  Company will also provide a Dashboard, accessible by Partner.  Company’s Dashboard shall provide information related to Partner’s Campaign, including any Hummingbird connections, links to Hummingbird Content, and status of any Campaigns / Event Invitations. Company makes no representation or guarantee Company will connect Partner with any particular or individual Hummingbird. Company’s selection of Hummingbirds for Partner’s consideration is at Company’s sole discretion. Partner understands Company is not responsible for any Hummingbird Content or Submission. 

Content of Partner Campaign Information / Partner Warranties

By agreeing to a Plan, Partner agrees to submit Campaign Information as requested by Company.  Partner agrees to provide Campaign Information as reasonably requested by Company or Hummingbird, including, but not limited to any products or services on which Partner seeks creation of Hummingbird Content.  Partner shall provide enough information for Hummingbird to effectively comment on any Partner good or service and shall also provide information related to any Perks, compensation, program dates, Partner branding guidelines, as well as any general and specific desired Hummingbird responsibilities.  Partner understands that Hummingbird may be required to include clear disclosure on Hummingbird’s content that Hummingbird is participating in a program sponsored by Partner, and that Hummingbird will cooperate with Company’s reasonable instructions regarding the format, content and placement of such disclosure.

Partner agrees to provide the Campaign Information set forth above and promptly review and/or supply Campaign Information.  Company further agrees that during the term of any Plan, Campaign or Package, Company will not make any statements that disparage or reflect unfavorably on the Partner, but Partner understands and agrees that Hummingbird is free to create truthful Hummingbird Content.  

Partner represents and warrants that all information, goods, services, materials, or content provided by Partner is provided in good faith, accurate, in best condition, and operates as intended.  Partner further warrants that no use, operation, demonstration, or other activity performed by Hummingbird or Company related to any Partner Campaign, good, or service does or will infringe upon any third party’s IP Rights.  

Partner IP Rights  

Partner represents Partner owns all IP Rights in or related to any Partner IP Rights as well as to any Partner good or service which is to be the subject of any Campaign.  To the extent any Partner IP Rights are used, needed, mentioned, or otherwise subject to any Campaign, Partner grants a fully paid up, royalty free, worldwide, non-exclusive, sublicensable, irrevocable license to use, modify, edit, translate, alter, amend, apply, affix, copy, distribute, publish, perform, prepare derivative works based on, and collect payments for any Partner IP Rights related to any Campaign, Service, or Submission without compensation, permission or notification to Company, Hummingbird, or any third party for any purpose related to the Campaign, Hummingbird Content, Services, or any Submission. Partner hereby grants to Hummingbird a non-exclusive, non-transferable, personal, revocable license to: (i) display the Hummingbird Service and/or Submissions on Hummingbird’s Site in accordance with the applicable Event Information.

Company IP Rights  

Except as expressly provided in the applicable Campaign Information, Partner agrees Company shall and does own all IP Rights resulting from the creation, modification, alteration, performance, or submission of any work related to the related to any Hummingbird Service or Submission or any Partner Campaign. Company shall retain ownership of the Hummingbird Content created in connection with any Campaign.  

All Company software, processes, contracts with Partners, content, and all IP Rights therein or related thereto, are owned by Company or its licensors.

Taxes  

Partner is responsible for all federal, state and local taxes and any other costs or expenses incurred related to any Campaign, including, but not limited to any Hummingbird compensation, sponsorship, Perk, or Services provided by Partner. Company will not be responsible to Partner or any governing body for any taxes relating to amounts that Partner provides or receives under this Agreement or related to any Campaign, including, but not limited to, federal or state income tax, social security tax, or unemployment tax.

Partner 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 Partner breach of this Agreement, any Partner failure to pay taxes, any Company audits related to any Partner 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 Partner shall reasonably cooperate with any such a case.

Indemnification, Releases, and Limitations of Liability

Partner agrees to indemnify, defend, and hold harmless Company and its Hummingbirds, and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest from and against any and all claims (known or unknown), losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) arising out of resulting from any Partner negligence, breach by Partner of this Agreement, Partner’s representations and warranties under this Agreement, or Partner’s breach of the Company’s Charm Values, Privacy Policy, or other agreement(s) between the parties, all of which are incorporated herein. 

In connection with the above, Partner hereby releases Company from and covenants not to sue Company related to any and all liability, loss, claims, suits or damages arising out of or in connection with any suit brought against Company related to any Partner Campaign, any Partner sponsored event, or any Partner use of Hummingbird’s Likeness, including, but not limited to, compensatory, punitive, enhanced, consequential and incidental damages and reasonable attorneys’ fees, whether such damages arise under contract, tort or statute.

LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, THE COMPANY SHALL NOT BE LIABLE TO PARTNER FOR ANY REPUTATIONAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, BREACH OF PRIVACY OR LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.  PARTNER AGREES ANY DAMAGES DUE PARTNER ARISING OUT OF THIS AGREEMENT ARE EXPRESSLY LIMITED IN AMOUNT TO THE AMOUNT PAID BY PARTNER FOR THEIR PACKAGE.   

Termination

Company may terminate this Agreement at any time at Company’s sole discretion.  If Company terminates this Agreement prior to the expiration of any Campaign, Partner understands and agrees Partner’s sole remedy shall be a refund of money paid for any remaining term, with any damages related to any Campaign, Content, or Services not to exceed money actually paid by Partner to Company for that Campaign, Content, or Service.  It is Partner’s understanding that if Partner has committed, or shall commit, any act, or has or shall become involved in any situation or occurrence (collectively, an "Act") tending to bring Company or Hummingbird into public disrepute, contempt, scandal or ridicule, or tending to shock, insult or offend the people of this nation or any class or group thereof, or reflecting unfavorably upon the reputations of Partner, then this Agreement will be immediately terminated and no compensation, refund, or damages will be due Partner.  It is Partner’s further understanding that any decision on matters arising under this paragraph will be at the sole discretion of Company and shall be conclusive.

Data Privacy

If a Hummingbird creates Hummingbird Content for Partner,. Other use of any Hummingbird personally identifiable information is subject to use or disclosure as described in Company’s then current Privacy Policy

Notwithstanding the foregoing, Partner’s identity is not confidential, and Company may use Partner’s name, likeness, and other information as set forth in this Agreement at their sole discretion. Company may reference Partner as a customer of Services and use Partner’s name, likeness, videos and images of any products or services or any other Partner Campaign Information, including any Partner logo or trademark, as applicable, on Company’s website, advertising, or other Company media or for other marketing and promotional purposes.

Confidentiality

Partner acknowledges that in the course of obtaining Services under this Agreement, Partner may acquire certain Confidential Information. Partner shall not: (a) disclose such Confidential Information to any third party without the prior written consent of Company, (b) will notify Company if Partner becomes aware of any breach of confidentiality in any manner whether through (i) Partner’s negligence, acts or omissions, or (ii) computer virus, or theft of Partner’s computer or login information; or (c) use the Confidential Information for any purpose other than to carry out the Services contemplated under this Agreement. Partner acknowledges that misuse or disclosure of any Confidential Information by Partner 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.

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 regard to that state’s conflict of laws rules. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in Polk County, Iowa and Partner irrevocably submits 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. Nothing contained herein will constitute any obligation on the parties hereto to make any use of the rights set forth herein.  This Agreement contains the entire understanding between the parties regarding the subject matter hereof and supersedes all prior understandings.  No waiver, modification or addition to this Agreement shall be valid unless in writing and signed by the parties hereto.  

This Agreement, the Charm Values and the Privacy Policy supersede any oral or written proposal, prior agreement or other communication between Company and Partner. 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 rights or obligations of Partner under this Agreement may be assigned or transferred by Partner (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://www.thehummingbirds.co (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 Partner hereby agrees 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.co blog posts. Company only discloses 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.

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 admin@thehummingbirds.co.

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.

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 PARTNER.