Updated September 30, 2021
IZEA Worldwide, Inc. (“IZEA”) owns and operates Shake® (“Shake”), an online marketplace that connects Buyers (as defined below) with Sellers (as defined below), hosted and operated by IZEA, alongside its IZEAx platform (the “Sites”).
IZEA now provides you, and, if applicable, your authorized affiliates, access to custom content creation services ranging from social media posts, to voice overs, to photographs, and more, delivered via Shake! Buyers can search for talented creators offering certain services and enter into agreements with them to purchase bespoke services and content.
Utilization of Shake is made available under these Terms of Service (“Terms”) and the IZEA Terms of Service located at https://app.izea.com/terms_and_conditions to the extent the same do not contradict these Terms with regard to use of the Shake platform. Each time you access Shake, you should check the date of these Terms (which appears at the top of this document) and review any changes since the last version, which will govern your use. If you do not agree to these Terms, please do not use Shake.
In the Terms, (i) a “Buyer” means any person, entity, or authorized representative with permission to access Shake directly or on behalf of Buyer for the purpose of purchasing services in Shake, and (ii) “Seller” means any authorized person or entity with an account on the Site that directly or indirectly offers services for sale in Shake.
You must be a Buyer, Seller, or an authorized representative of a Buyer or Seller to register to use Shake. To create an account, you must be over the age of eighteen (18) years old. Authorized agents may create accounts, with proof of authorization from the individual on whose behalf the account is created. IZEA reserves the right to vet any and all Buyers and Sellers before allowing them entrance into the Shake marketplace, and to vet any offerings or deals before the same may be offered for sale to Buyers. Review of a Seller’s or Buyer’s profile, account, Shake offerings, deals, or content does not create or transfer any liability to IZEA including, but not limited to, the accuracy of such content or the ownership rights to the same, or to the content services offered within Shake.
By registering for Shake, you are representing and warranting that all information you may submit is truthful and accurate, and that you agree to maintain the accuracy of such information. You understand and agree that IZEA will use the information you provide in accordance with the terms of the IZEA Privacy Notice (“Privacy Notice”), which is integrated into and included as part of these Terms. IZEA accounts are not transferable, assignable or resalable under any circumstances. Buyers and Sellers with accounts on the Site(s) who utilize Shake expressly agree to IZEA’s Privacy Notice. Buyers and Sellers are encouraged not to share any personally identifiable information with any other Shake user outside of entering into contracts for the purchase of services, and expressly agree that, to the extent of applicable law, IZEA takes no responsibility for any personally identifiable information they choose to send or otherwise upload through Shake. Each of Buyer and Seller agrees not to misuse information discovered through Shake to harass, bully, or SPAM those individuals who are users of Shake.
In order to make Shake a responsible and safe place, IZEA asks that all Buyers, Sellers, and other users acknowledge and agree to the following:
Shake is offered and available to users who are 18 years of age or older. If you are under 18 you may not use Shake unless a parent or authorized agent does so on your behalf. By using Shake, you represent and warrant that you are of legal age to form a binding contract and meet all of the foregoing eligibility requirements. You will not use a false identity or provide false or misleading information.
Services that IZEA considers to be pornographic, sexually explicit, lewd, lascivious, violent, harassing, promoting illegal drug use, offensive, or otherwise unlawful or in violation of these Terms are not allowed to be posted and/or solicited, and removal of the Shake offering and/or the offending account may follow.
- IZEA does not guarantee or warrant any service offered by a Seller or payment by a Buyer.
Communications between parties outside of Shake are not IZEA’s responsibility and may not be used to circumvent these Terms of Service or misuse Shake for illegal or immoral purposes.
All tangible information and file exchanges must be exclusively delivered through Shake, unless these Terms permit otherwise. Obtaining proof of all other performances or services not submitted through Shake is the Seller’s responsibility.
Rude, abusive, offensive, improper language, stalking, spying, or violent messages will not be tolerated and may result in an account warning or the suspension/removal of your account.
- Discrimination against another user based on gender, race, age, religious affiliation, sexual preference or otherwise is not acceptable and may result in the suspension/removal of your account.
Frequent violation or infringement of proprietary rights or intellectual property rights may result in a termination of any Shakes, your account access to Shake, and any other appropriate action IZEA may decide upon.
Physical deliverables shall require the Buyer to provide the Seller a shipping address. IZEA does not guarantee shipping, tracking, quality, or condition of the items or their delivery. IZEA does not compensate Seller for any product(s) purchased to provide services.
- Users may not submit proposals or solicit parties introduced via Shake to contract, engage with, or pay for services outside of Shake.
In addition to the above list, IZEA can at any time disable an account, remove access, or reject any users of Shake or any proposed Shake, at any time and for any reason, in its sole discretion.
3. FEES AND PAYMENT
Shake is open to browse, but to enter into a Shake transaction you must be a registered Buyer or Seller. Shake charges Seller a transaction fee for any services that are purchased on the site. To participate in Shake, Seller must put forth an offering for sale of no less than $50 USD.
If Buyer fails to make payment as set forth herein, Buyer will be responsible for all reasonable expenses (including attorneys’ fees and costs) incurred by Seller or by IZEA in collecting such amounts. All prices are in United States dollars and do not include taxes that may be assessed by any jurisdiction. If withholding taxes or any other fees are imposed by any jurisdiction on the transactions pursuant to these Terms, Buyer shall pay such taxes. Buyer agrees to promptly: (i) update all information to keep account and credit card billing current, complete and accurate (such as a change in billing address or e-mail), (ii) notify IZEA in writing if it becomes aware of a potential breach of security, such as the unauthorized disclosure or use of Buyer’s user name or password, and (iii) notify IZEA in writing if its credit card is canceled. Upon termination, suspension or discontinuation of Shake or any Site, all outstanding payment obligations incurred by Buyer in the platform will become immediately due and payable.
3.1. DISPUTE POLICY
As IZEA is not a party to any agreements or contracts between Buyers and Sellers regarding services offered by Sellers through Shake, IZEA has no formal role in any disputes between the parties. IZEA requests that the parties make a good faith attempt to amicably communicate with each other in order to resolve any such dispute. However, if the parties are unable to resolve a dispute after making an initial effort to do so, either party may provide any available proof and request that IZEA intervene by sending a request to Support@izea.com or by using the automated dispute resolution process within Shake. Once involved, IZEA’s decision shall be final in resolving the matter. Note that escalated disputes or a significant number of disputes may result in a negative impact on a Seller or Buyer’s rating in Shake, result in a termination of any active Shakes, or result in a termination of an account.
3.1.1. REFUND POLICY
Any refund requests shall be made directly to the Seller, as IZEA is not a party to any contracts or agreements regarding services offered by Sellers through Shake. If the parties cannot resolve the dispute amicably, a request may be made by a party to involve IZEA in the dispute, and IZEA may award no refund, a credit, or a full refund, in its sole discretion. Refunds shall be made first as a credit to Buyer’s IZEA account; in the event such a method is unavailable, IZEA may issue a refund to Buyer’s PayPal account or valid credit card associated with the account, as determined in its reasonable discretion. No fee will be charged by IZEA to Seller for the cancelled offering or deal.
3.1.2. CANCELLATION POLICY & REJECTION OF SERVICES
Rejection of an Order
A Shake deal may be voided or an offer rejected in the following circumstances: (i) Seller fails to respond to Buyer’s request to purchase a deal within a reasonable time period (i.e., within seventy-two (72) hours barring exigent circumstances), (ii) Seller actively declines the order, or (iii) Buyer submits an order request then fails to respond to Seller’s communications within a reasonable time period (i.e., within seventy-two (72) hours barring exigent circumstances).
Cancellation After Making a Deal
A Shake deal can be cancelled after Seller accepts an order in the event that
(i) The agreed-upon delivery deadline has expired OR one party fails to respond to the other for a period of seven (7) days following the last message received, and a party does not agree to extend the time period for performance, such as a circumstance in which Seller fails to deliver services (including revisions), Seller receives product from Buyer but becomes unresponsive, or Seller does not respond to Buyer in the time period indicated above;
(ii) Seller exceeds the allotted number of revisions without delivering a satisfactory product;
(iii) Buyer does not respond to Seller for a period of seven (7) days following the last message received (a) to permit Seller to perform within the agreed-upon deadline for delivery of services, or (b) after Seller delivers content or services to Buyer and Buyer does not request revisions; or
(iv) Buyer does not respond to Seller for a period of seven (7) days following the last message received after (a) Seller receives product from Buyer to be incorporated in delivering the services and the agreed-upon deadline has expired; or (b) Seller purchases product to be incorporated in delivering the services and the agreed-upon deadline has expired, during which time Seller may either complete the content and demand payment or cancel the order.
Rejection of Services Delivered
Rejecting delivery of the services or content, for whatever reason, is subject to the Seller’s terms for that deal or offering, and in accordance with the number of content revisions permitted by Seller in the offering or deal. Final rejection of the services after delivery and all revisions have been made, must be coordinated through an IZEA representative using the dispute resolution process.
Unless a dispute has been initiated, failure on the part of the Buyer to expressly “accept” the services following delivery within seventy-two (72) hours shall constitute an automatic acceptance of the services, and payment shall be released to the Seller net forty-five (45) days following acceptance. Buyer may not make any use of the rejected or cancelled services or content provided.
Return of Materials Received
Should the Buyer reject services or content, or terminate a deal, Seller agrees to return all materials received from Buyer, at Seller’s own shipping cost. If Seller has already received payment then, in lieu of returning the items, Seller may opt to receive a reduction in payment for services rendered to cover the cost of non-returned items. In no event shall IZEA be responsible for obtaining, shipping, or reimbursing Buyer for materials sent to Seller.
Removal of Content
A Buyer may request that a Seller modify or remove any content posted about Buyer’s products or services, and to cease use of any content incorporating Buyer’s intellectual property, materials, or products, whether or not the same has been published. Should Seller be asked to reasonably modify or to remove posted content, Seller must do so within twenty-four (24) hours of receiving such instruction. Failure to do so may result in a loss of compensation (including a clawback of monies already paid) and other remedies, up to and including removal from Shake and any related IZEA Sites, and termination for cause of any related contracts.
3.2. CREDIT CARD CHARGES
Buyer will be responsible for charges resulting from the use of a Seller’s services. If Buyer’s account does not have a sufficient credit balance available to complete a transaction, Buyer’s credit card will be charged when the services are ordered. Buyer authorizes IZEA to charge Buyer’s credit card, as provided by the Buyer, to purchase a Seller’s services or pay for any agreed upon fees. Any approved rejection of services (whether agreed to by Seller or finally determined by IZEA) will be handled as a refund to Buyer’s credit card, per the terms of the offering or deal. Payment to Seller will be held as “pending” and the amounts shall not be available for withdrawal until forty-five (45) days after the delivered services are accepted in fulfillment of a deal or offering. Any attempt to dispute a valid transaction or reverse payment through your credit card provider is a violation of these Terms and may result in your account being temporarily suspended or permanently removed.
Buyer represents and warrants that it has the legal right to use any credit card utilized in connection with Shake. By submitting such information, Buyer grants IZEA the right to provide such information to third parties for purposes of facilitating the completion of transactions initiated by the Buyer. If the credit card provided was not authorized, then all amounts in the Buyer’s account will immediately be forfeited. If there is no balance in Buyer’s account to cover the fraudulent charge or failure to make payment when due, Buyer shall remain responsible for rendering such payment in a different manner. Buyer’s non-termination or continued use of Shake reaffirms that IZEA is authorized to charge Buyer’s credit card.
IZEA utilizes a third party payment processor for all credit card payments made on its Sites, and relies on such party to resolve any payment conflicts. Should Seller be unable to obtain payment from a Buyer, whether due to an unfounded dispute or chargeback, or due to Buyer’s use of a fraudulent method of payment, Seller should pursue recovery against Buyer directly and IZEA shall not be liable for any payments due or owed to the Seller.
IZEA reserves the right to modify, suspend, or terminate the required method of payment for use of Shake at any time. If IZEA modifies the terms of the method of payment as outlined in this Section 3.2, Buyers and Sellers will be contacted by IZEA or the modifications will be reflected in an updated version of these Terms. If a user does not consent to such modified Terms, such user must immediately discontinue using Shake. A user’s continued enrollment after any modifications constitutes its acceptance of the terms and method of payment as modified.
“Confidential Information” means any information disclosed by a disclosing party (e.g. IZEA, Buyer, Seller) to a receiving party (e.g. Seller, Buyer, IZEA) either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that you can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the receiving party; (ii) becomes publicly known and made generally available after disclosure to the receiving party other than through the receiving party’s action or inaction; or (iii) is in receiving party’s possession, without confidentiality restrictions, prior to the time of disclosure by the disclosing party as shown by receiving party’s files and records. Receiving party shall not at any time (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information (except to those individuals who have a legitimate need to know such information and are bound in writing by confidentiality and non-use restrictions not less protective than those contained herein), or (ii) use, reproduce or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party and in accordance with the Terms. Receiving party agrees to take all measures to protect the secrecy, and avoid disclosure and unauthorized use of the Confidential Information. Receiving party may disclose Confidential Information if required by law to disclose the Confidential Information, provided that receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. All Confidential Information shall remain the disclosing party’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to the disclosing party immediately upon its request, and also, upon termination of the Terms.
Nothing contained in the Terms will prevent IZEA, its parent and/or affiliates from complying with privacy laws and regulations, and if there is any conflict between the Terms and the terms of the applicable Privacy Notice, the Privacy Notice shall control. Sellers acknowledge and agree that, as part of any service or content development they are contracted for, they have an obligation to keep confidential any and all materials provided to them by Buyers. This obligation survives the end, cancellation, or termination of any agreements between the parties.
5. CONTENT OWNERSHIP & LICENSE RIGHTS
Buyers and Sellers, when using Shake, can choose the following categories of owned or licensed content in connection with the services being purchased. Under no circumstance is any content or service to be used for any illegal, immoral, or defamatory purpose. No license is granted for rejected content or services. To the extent publicity rights are contemplated by the services provided, Seller grants a limited publicity rights license to Buyer to the extent required to make use of the content delivered, and solely in connection with such content, in accordance with the terms of the applicable license. No royalties shall be paid for any services or content delivered in Shake.
5.1 LICENSE RIGHTS & CONTENT OWNERSHIP
Seller represents and warrants that it owns all copyright and has obtained all publicity releases and licenses required for Buyer to make use of the content as described below, and that such content shall be unique, original, and not repurposed.
a. COMMERCIAL – The services and content, upon delivery, acceptance, and full payment, belong to the Buyer. Seller assigns the copyright in the content and grants to Buyer all rights and licenses to exploit the services. Buyer shall own the copyright in and to the services and may use, reproduce, have reproduced, edit for length or clarity, publish and exploit such services in its sole discretion, including, without limitation, licensing the services to any agent or third party, copying, distributing, displaying, publicly performing, and creating derivative works of the services.
In addition, Buyer and Seller each specifically grants IZEA a worldwide, perpetual, fully paid-up, royalty-free, and fully sublicensable right and license to share, use, copy, process, adapt, translate, display, perform, reproduce, republish, and distribute the content or any portion thereof in any and all forms of media or distribution methods (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications, for purposes of promoting IZEA.
b. PERSONAL – The services and content, upon delivery, acceptance, and full payment, are licensed to the Buyer but Seller retains copyright ownership. The Seller grants to Buyer and IZEA a worldwide, perpetual, fully paid-up, royalty-free, and fully sublicensable right and license (excluding commercial use) to share, use, copy, display, distribute, perform, publish, and reproduce the content in any and all forms of media or distribution methods (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. The content may not be modified in any way from its original form without Seller’s permission. Any use, publication, or distribution of the content must be accompanied by credit to the Seller who created it, by use of the Seller’s name or social media handle (if made available by Seller, for published content) in connection with such content. No licenses for derivative works of the services or modified services are granted to Buyer.
c. SPONSORED SOCIAL CONTENT – Content is created by a Seller for Buyer’s marketing campaign and is submitted, posted, displayed, or shared to Seller’s followers through his or her personal social media platforms. Unless otherwise indicated in a listing, Content is owned by Seller, but IZEA and Buyer receive a worldwide, perpetual, fully paid-up, royalty-free, and fully sublicensable right and license to share, use, copy, process, adapt, translate, display, perform, reproduce, republish, and distribute the content or any portion thereof in any and all forms of media or distribution methods (now known or hereafter developed), including but not limited to television, radio, print, Internet site and other electronic communications. Any use, publishing, or distribution of a Seller’s content must be accompanied by credit to the Seller of that content by use of the Seller’s name, likeness, image, username/handle or other identifying representation (to which Buyer and IZEA will receive a limited license). While Buyer has the right to reuse the Content outside of its native platform, as described above, FTC guidelines state that the connection between the Seller and Buyer (or brand) must be disclosed and the Content must be attributed to the Seller. The disclosure should also clearly and conspicuously communicate that the Seller is paid by or works with the Buyer (or brand). For all Sponsored Social content, the applicable Terms of Service shall also apply to both Buyer (Marketer) and Seller (Creator).
d. STREAMING / TEMPORAL LIMITED LICENSES – Seller creates content as requested by Buyer which only lives on a particular platform that may prohibit off-platform sharing or may limit the time period for which such content may remain live. Platforms may include Clubhouse, Instagram, YouTube, and other photo/video sharing sites, social audio sites, and conferencing sites. Buyer receives a limited license to such content only for the period it is streaming, live, or otherwise made available on the particular platform. Buyer is encouraged to coordinate with Seller on the timing of publication for such content, or to otherwise obtain proof that content has been delivered per the terms mutually agreed upon by the parties.
5.2 DEAL FEATURES AND OPTIONS
A Seller may offer a Shake at different deal levels with various options or features available, at set prices. A Buyer may select certain options to customize the required services or content to be purchased in a deal, and multiple deals are referred to as a package. The Seller may request that the Buyer provide supplemental information or files as required to complete the services. If the Seller has placed time limitations on any of the licensed content or services provided, including usage limitations on third party content incorporated into the services or licensed content, Buyer must comply with the same, including ceasing the use, distribution, or advertising of the content, and the removal of such content from publication, display, or distribution after the expiration of such time period.
5.3 THIRD PARTY CONTENT & WAIVERS
Seller represents and warrants that it has the rights to incorporate any and all third party intellectual property, including stock video or stock photo licensing, as well as any publicity waivers required for content (including images of third parties), and Buyer must comply with all usage terms as advised by Seller.
6. ACCEPTABLE USE OF SHAKE
Outside of an API provided by IZEA (if available), any attempt to access Shake without authorization or by using another party’s account, utilize automated programs, bots, screen scraping, database calls, human initiated data collection or any other means of gathering data, content or other information for the purpose of reverse engineering any of our platforms or Sites for commercial gain is strictly prohibited. Any manipulation of data, including click data, impressions, or any other relevant data or metric reported in Shake, is strictly prohibited. Any such unauthorized attempt will be prosecuted to the fullest extent under the law, and each action is grounds for termination of a Buyer or Seller’s account in Shake.
6.1 CANCELLATION OF AN ACCOUNT
There is no requirement for a Buyer to purchase Shakes to have an active account, nor for a Seller to list available Shakes to maintain an active account. A Buyer or Seller may request that IZEA terminate their access to Shake at any time by sending an email to Support@izea.com. Buyers or Sellers who cancel their accounts should review their existing contracts or agreements with other Buyers or Sellers. Should Buyer cancel its account while there are still active Shakes that have not been completed as of the date of cancellation, all such amounts shall continue to be due and owing by the Buyer to the Seller. Should Seller cancel its account while there are active Shakes which are incomplete or undelivered as of the date of cancellation, such amounts shall not be charged to the Buyer or owed to the Seller.
7. PROVISION OF SERVICES
IZEA is constantly innovating and changing its online offerings in order to provide the best possible experience for its users. Buyers and Sellers acknowledge and agree that the form and nature of the services which IZEA offers may change from time to time without prior notice to you. Buyers and Sellers acknowledge and agree that IZEA may stop (permanently or temporarily) providing Shake (or any features or functionality of Shake) at IZEA’s sole discretion, without prior notice to you. IZEA may terminate these Terms and/or Buyers and Sellers’ accounts with Shake at any time, for any reason or for no reason, and IZEA shall not have any liability regarding such decisions. Sections 3 through 17 of these Terms shall survive any termination of these Terms. In addition, IZEA has the ability to (i) modify user, account, or organization permissions at any level to add or remove users, or make any other changes as otherwise deemed reasonably necessary in the provision of services; and (ii) assume a user’s account for the purposes of troubleshooting and resolving issues.
8. INDEPENDENT CONTRACTORS
These Terms do not establish any agency, joint venture or partnership relationship between the IZEA and either a Buyer or Seller, and neither Buyers nor Sellers can bind IZEA by any contract or representation. Nothing in these Terms shall be construed as creating an employer-employee partnership or joint venture relationship between IZEA and either a Buyer or Seller.
9. REPRESENTATIONS AND WARRANTIES
Buyers and Sellers utilizing Shake represent, warrant and covenant that (i) you have sufficient authority to enter into the Agreement, (ii) your use of Shake is solely for lawful purposes and shall be within the bounds of the terms negotiated with a Seller; (iii) you will not engage or cause others to engage in any form of spamming or, as determined by IZEA, improper or malicious clicking, impressions, or marketing activities through Shake; (iv) you will comply with all applicable laws including complying with privacy laws and the CAN-SPAM Act of 2003, and that you will not take information derived through Shake and use it to impermissibly market to or spam other Shake users whether on or off platform; and (v) you have the necessary rights to provide, offer, or review all information provided to Shake (including all personally identifiable information, intellectual property, content, data, claims, statements, products and services, titles, URLs and descriptions) for use as described in these Terms (the “Information”).
Sellers utilizing Shake represent, warrant and covenant that all services will be delivered in accordance with the terms negotiated with Buyers, and that the services they offer do not and will not: (a) violate any law, statute, ordinance, treaty or regulation or IZEA policy or guideline; (b) infringe any copyright, patent, trademark, trade secret, trade dress, or other intellectual property right of any third party; and (c) breach any duty toward or rights of any person or entity including rights of publicity or privacy, and have not otherwise resulted in or are not likely to result in any Buyer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity. Other than as indicated herein, Seller explicitly excludes any express or implied warranty in connection with the provision of the content or services, including fitness for a particular purpose, merchantability, and accuracy.
Additionally, Sellers agree that all services they offer will (i) not be false, misrepresentative, deceptive or misleading; (ii) not be defamatory, libelous, slanderous, obscene or threatening; (iii) not target children under the age of thirteen (13), (iv) be free of viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage, interfere with, intercept, or expropriate any system data or personal information. Sellers have no expectation of privacy in any content or service delivered in connection with a Shake offering or deal.
10. TRADEMARKS AND COPYRIGHTS
Shake may feature, display, or utilize certain images, logos, or other materials that are copyrighted and/or trademarked by third parties. IZEA’s usage of these copyrights and trademarks is governed by applicable fair use laws, and IZEA does not claim to own any interest in such intellectual property, which proprietary rights and goodwill shall inure to the benefit of its owners.
All other graphics, logos, designs, page headers, button icons, scripts, and service names appearing on the Sites are registered and unregistered service marks, trademarks, trade names, or trade dress of IZEA Worldwide, Inc. or its subsidiaries and affiliates in the U.S. and/or other countries (collectively, “trademarks”). IZEA’s trademarks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion. The images and icons available on our media page may be used by organizations and third-party sites in connection with journalistic promotion of our services; however, commercial applications are forbidden except where pre-approved in writing. All proprietary rights and goodwill in IZEA’s trademarks shall inure to the benefit of IZEA. The IZEA Sites and all of their content, including but not limited to text, design, graphics, interfaces and code, and the selection and arrangement thereof, is protected as a compilation under the copyright laws of the United States and other countries. IZEA reserves all rights not expressly granted in and to the Sites and their content.
10.1 SELLER CONTENT
IZEA does not check Seller uploaded or created content for appropriateness, violations of copyright, trademarks, other rights or violations. Buyers and Sellers agree that IZEA shall not be responsible for the content, quality, or the level of service provided by the Sellers. No warranty is provided by IZEA with respect to the services offered by Sellers, delivery of any services, and any communications between Buyers and Sellers. We encourage Buyers to carefully consider choosing appropriate services and Sellers.
By offering a service, the Seller undertakes that he/she has sufficient permissions, rights and/or licenses to provide, sell or resell the service that is offered on Shake. Failing to do so may result in removal or suspension of Seller’s account, among other measures available to IZEA.
10.2 CLAIMS OF COPYRIGHT INFRINGEMENT
We respect the intellectual property of others, and we ask our contributors and those utilizing Shake to do the same. If you believe that your copyrighted work has been copied and is accessible on this site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information:
- The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf.
- A description of the copyrighted work that you claim has been infringed and a description of the infringing activity.
- Identification of the location where the original or an authorized copy of the copyrighted work exists, for example the URL of the website where it is posted or the name of the book in which it has been published.
- Identification of the URL or other specific location on the Sites where the material that you claim is infringing is located; you must include enough information to allow us to locate the material.
- Your name, address, telephone number, and email address.
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our agent for notice of claims of copyright infringement on this site can be reached as follows:
c/o IZEA Worldwide, Inc.
1317 Edgewater Dr., Suite #1880
Orlando, FL 32804 USA
Buyers and Sellers agree to indemnify, defend, and hold harmless IZEA, its subsidiaries and affiliates, and its and their employees, officers, and directors (each, an “IZEA Entity” and collectively, the “IZEA Entities”), and each IZEA Entity’s licensors, organizations, licensees, consultants, contractors, agents, attorneys, owners, third party service providers and authorized third parties from and against any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees (collectively, “Claim(s)”), that actually or allegedly arise out of or result from information or materials provided, use of Shake, or your breach of these Terms. You agree to be solely responsible for defending any Claim against or suffered by IZEA and/or any IZEA Entity, subject to IZEA and/or the IZEA Entity’s right to participate with counsel of its own choosing, and for payment of damages or losses resulting from all claims against IZEA, and/or any IZEA Entity provided that you will not agree to any settlement that imposes any obligation or liability on IZEA and/or an IZEA Entity without IZEA’s prior express written consent.
12. WARRANTY DISCLAIMER
BUYERS AND SELLERS EXPRESSLY AGREE THAT SHAKE IS AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND THAT YOUR USE THEREOF IS AT YOUR OWN RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IZEA DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) WARRANTIES AGAINST INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, (iii) WARRANTIES RELATING TO DELAYS, INTERRUPTIONS, ERRORS, OR OMISSIONS IN SHAKE OR IZEA SITES, OR ANY PART THEREOF, (iv) WARRANTIES RELATING TO THE TRANSMISSION OR DELIVERY OF SHAKE OR THE IZEA SITES, (v) WARRANTIES RELATING TO THE ACCURACY OR CORRECTNESS OF DATA, AND (vi) ANY OTHER WARRANTIES OTHERWISE RELATING TO PERFORMANCE, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY IZEA. FURTHER, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, THERE IS NO WARRANTY THAT SHAKE OR THE IZEA SITES WILL MEET YOUR NEEDS OR REQUIREMENTS OR THE NEEDS OR REQUIREMENTS OF ANY OTHER PERSON. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT IZEA’S WARRANTY DOES NOT COVER TELECOMMUNICATIONS OR INTERNET OUTAGES CAUSED BY THIRD PARTIES OR OTHERWISE OUTSIDE OF IZEA’S CONTROL. SHAKE MAY BE LIMITED BY MANY FACTORS, INCLUDING INHERENT RISKS OF THE INTERNET.
BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, IZEA’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13. LIMITATION OF LIABILITY
IN NO EVENT WILL IZEA OR ANY IZEA ENTITY BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR AVAILABILITY OF SHAKE OR ANY SITES, ANY CONTENT ON SHAKE OR SUCH OTHER SITES, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SHAKE OR SUCH OTHER SITES, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.
ANY LIABILITY OF IZEA OR AN IZEA ENTITY, TO A BUYER OR SELLER IN CONNECTION WITH THESE TERMS, REGARDLESS OF THE CAUSE OR FORM OF ACTION, SHALL BE STRICTLY LIMITED TO THE AMOUNT OF THE TRANSACTION FEE PAID BY SELLER TO IZEA FOR THE SERVICES RELATED TO THE USE OF SHAKE. BUYERS AND SELLERS AGREE THAT THEY WILL NOT HOLD IZEA RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THESE TERMS. BUYERS AND SELLERS FURTHER AGREE THAT IZEA SOLELY PROVIDES THE SHAKE PLATFORM AND FACILITATES PAYMENT COLLECTION, AND AS SUCH ASSUMES NO LIABILITY FOR THE ACTS OR OMISSIONS OF SELLER OR BUYER.
THE FOREGOING LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF IZEA OR ANY OTHER ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IZEA’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IZEA may give general notices to parties by posting on its Sites, or by electronic mail to the email address provided by Buyers and Sellers to IZEA. It is the party’s responsibility to ensure that their email address and any other contact information provided to IZEA is updated, current and correct. It is the responsibility of Buyers and Sellers to also check these Terms to see if there has been a modification. All notices to IZEA shall be sent via nationally recognized overnight courier or certified mail, return receipt requested, to: IZEA Worldwide, Inc., 1317 Edgewater Dr., Suite #1880, Orlando, FL 32804 USA Attn: Legal Department Notices.
15. CHOICE OF LAW
These Terms shall be governed by and interpreted under the laws of the State of Florida, U.S.A. without regard to its conflicts of laws provisions. Buyers and Sellers agree to submit to the exclusive jurisdiction of the state and federal courts located in Orange County, Florida. Any claim against IZEA arising from the Terms shall be adjudicated on an individual basis, and shall not be consolidated in any proceeding with any claim or controversy of any other party. Buyers and Sellers further agree that, to the extent allowed by applicable law, (i) any and all disputes, claims, and causes of action arising out of or in connection with the Terms, shall be resolved individually without resort to any form of class action; (ii) any claims, judgments and awards shall be limited to reasonable and actual out-of-pocket costs incurred, but in no event attorney’s fees; and (iii) under no circumstances will Buyers and Sellers be permitted to obtain any award for, and Buyers and Sellers hereby waive all rights to claim, punitive, incidental, indirect or consequential damages and any and all rights to have damages multiplied or otherwise increased and any other damages, other than damages for reasonable and actual out-of-pocket expenses.
16. ELECTRONIC ACCEPTANCE EFFECTIVE
These Terms set out the legally binding terms for use of Shake. Buyers and Sellers indicate acceptance of the Terms and all of the terms and conditions contained or referenced in these Terms by creating an account and accessing Shake, and also when executing an Order Form. Please print and save a copy of these Terms for record-keeping purposes and be mindful that these Terms may be updated by IZEA at any time.
The Terms constitute the entire terms of service and understanding between the parties regarding the subject matter contained herein and supersedes all previous and contemporaneous terms of service, agreements, proposals and communications in all forms of media (including all instructions, advertisements, messages and policies), written and oral, between any party and IZEA regarding the subject matter contained herein. Only a written instrument executed by the party waiving compliance may waive the terms or covenants of the Terms. No waiver by either party of a breach of any provision hereof shall be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself. If any provision of the Terms is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Terms, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the parties to the Terms and has like economic effect. IZEA shall have no liability under the Terms by reason of any failure or delay in the performance of its obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet outages, computer virus, pandemic, epidemic, Acts of God, war, governmental action, or any other cause that is beyond its reasonable control. The parties are independent contractors and nothing in the Terms shall be construed to create, evidence, or imply any agency, employment, business relationship, or joint venture between the parties. Any Buyer or Seller is not an employee of IZEA. Neither IZEA, Buyer, or Seller shall have any right, power, or authority to create any obligation or responsibility on behalf of the other party. The Terms are not intended to benefit, nor shall it be deemed to give rise to any rights in, any third party. Buyers and Sellers may not assign or transfer the Terms, or sublicense, assign or delegate any right or duty under the Terms without IZEA’s prior written consent. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. IZEA and its subsequent assignees may assign the Terms, in whole or in part, or any of its rights or delegate any of its duties, under the Terms to any party. Any rights not expressly granted in the Terms are reserved by IZEA, and all implied licenses are disclaimed. Headings used in the Terms are for reference purposes only and in no way affect the Terms. The term “including” is a term of enlargement meaning “including without limitation,” and does not denote exclusivity. IZEA may change the Terms and/or the Privacy Notice at any time upon notice published on its Site(s). Any use by a Buyer, Seller, their affiliates, agents, representatives, employees, or any person or entity acting on their behalf, of Shake after such notice shall be deemed to be continued acceptance by them of the Terms and Privacy Notice, including any amendments and modifications thereto. All information or material in connection with Shake must be submitted in the form requested by IZEA. IZEA reserves the right to discontinue offering, and/or modify Shake at any time. Except as otherwise specified by IZEA, parties agree that they will direct all communications relating to Shake or their participation therein directly to IZEA and not to any other entity. The organization, specifications, structure or appearance of any IZEA property or any page where a party’s information (including listings and offerings) may be displayed may be redesigned or modified at any time.