Influencer Agreement
General Terms & Conditions
1. Overview
1.1 This Influencer Agreement General Terms & Conditions (“Agreement”) is entered into between the Brand and the Influencer identified in the Campaign Brief that incorporates this Agreement by reference (the “Campaign Brief”, and such Influencer “Influencer”).
1.2 The Influencer will provide the Brand with the Services as set out in the Campaign Brief on behalf of the Brand.
1.3 The Agreement will start on the Commencement Date and continue for the Term.
1.4 The Influencer acknowledges and agrees, subject to the nature of the Services being provided, additional special conditions may apply and such special conditions will be set out in the applicable Campaign Brief.
1.5 The Influencer acknowledges and agrees that the Influencer has read and understood the Agreement and Campaign Brief prior to signing the Campaign Brief, and has sought professional and/or legal advice if the Influencer requires clarification on any aspect of the Agreement and the Campaign Brief.
2. Services and Fees
2.1 The Services and the Key Dates for delivering the Services are as set out in the Campaign Brief.
2.2 Any variation to the Campaign Brief must be agreed by the Influencer and the Brand in writing.
2.3 The Brand will pay the Influencer the Fees:
a. on the relevant Payment Dates as set out in the Campaign Brief;
b. by electronic funds to an account nominated by the Influencer; and
c. following receipt of the Final Content from the Influencer.
3. Obligations
3.1 The Influencer must:
a. provide the Services in accordance with the Key Dates;
b. provide the Services to a reasonable standard and of a reasonable quality;
c. make any reasonable changes, which the Brand request in writing by the Feedback Dates, to the Services to ensure that they comply with the requirements of the Campaign Brief;
d. not engage directly with any brand, company, representative, or agent in the Influencer Marketing Industry that is or may be a conflict with the Influencer’s obligations to the Brand without written consent from the Brand, unless the Influencer has an existing relationship with them prior to entering this agreement and notice has been provided to the Brand;
e. send any social media or internet post to the Brand, and the Influencer must not post without the Brand’s approval, if relating to an engagement or requested by the Brand;
f. not bring any brand into disrepute, cause controversy, promote firearms, or defame brands, companies, or people;
g. agree to the terms and conditions, pay any reasonable fee, and do all things and sign all things necessary to use a product to monitor and provide reports on the Influencer’s social media accounts, if required by the Brand at the Brand’s sole discretion;
h. not and must not purchase any likes, leads, or shares, or participate in any competitions for the purpose of growing their following;
i. respond to any of Brand’s communications, written or verbal and via any medium of communication, within 48 hours;
j. at its own expense ensure the Influencer has appropriate insurance in place in order to undertake the Services during the Term of this Agreement, to take into account the Influencer’s risks and potential liabilities under the Agreement;
k. provide to the Brand any data, content, and information when requested; and
l. comply with all Applicable Laws.
3.2 The Brand will:
a. promptly provide the Influencer with all the necessary Brand Content and any other information reasonably requested by the Influencer to perform the Services and/or meet the Influencer’s Obligations;
b. review the Services and provide any feedback on behalf of the Brand in writing by the Feedback Dates and in accordance with the Approval Process;
c. comply with any reasonable request by the Influencer relating to the Services, the Campaign Brief or the Brand Content; and
d. comply with all Applicable Laws.
4. Intellectual Property Rights
4.1 Brand Content, including all Brand Pre-Existing Material developed and/or created independently of this Agreement, shall remain the sole property of the Brand and the Brand shall be the sole owner of all rights in connection therewith. The Brand hereby grants to the Influencer a non-exclusive, non-transferable license to use, reproduce, and modify the Brand Content solely in connection with the Influencer’s performance of the Services and the production of the Content (including Final Content).
4.2 Influencer content, being any Pre-Existing Material developed and/or created by the Influencer outside the terms of this Agreement, shall remain the sole property of the Influencer and the Influencer shall be the sole owner of all rights in connection with such content.
4.3 The Brand grants the Influencer a non-exclusive, non-transferable license to use, reproduce and modify the Brand Content as set out in the Campaign Brief.
4.4 Ownership and licensing of the Final Content is assigned as set out in the Campaign Brief.
4.5 All third party materials are the exclusive property of their respective owners. The Influencer shall inform the Brand of all third party materials that may be required to perform the Services or otherwise integrated into the Final Content. Under such circumstances, the Influencer shall inform the Brand of any need to license and any reasonable costs associated with obtaining a license to be borne by the Brand.
5. Termination
5.1 The Brand shall be entitled to terminate this Agreement or any affected Campaign Brief with immediate effect by notice in writing if the Influencer breaches the terms of this Agreement and does not cure such breach within 10 days of notice by the Brand of the breach.
5.2 In addition, where the Influencer has breached the terms of this Agreement, any Campaign Brief or a breach of Applicable Law, the Brand may immediately suspend, limit or terminate the Influencers access to the Brand’s social media accounts and/or instruct the Influencer to cease all promotional activities or make clarifying statements as approved by the Brand, and the Influencer shall comply immediately.
5.3 The Influencer shall be entitled to terminate this Agreement or any affected Campaign Brief if the Brand fails, refuses or neglects to pay the Fees when due in accordance with an agreed and executed Campaign Brief, or is otherwise in breach of any undertaking, warranty or obligation in this Agreement and has failed to cure such breach within 10 days of notice by the Influencer of the breach.
5.4 Either party may terminate the Agreement by mutual agreement, or if the other party:
a. commits a material breach of the Agreement which is not capable of remedy; or
b. becomes insolvent or bankrupt.
5.5 Without limiting the Brand’s rights, if the Agreement is terminated:
a. the Brand will pay the Influencer all Fees due for work properly performed in accordance with this Agreement up to and including the date of termination. For Fees that are payable on a milestone basis, such Fees are to be pro-rated according to the proportion of work relating to that milestone has been completed;
b. the Influencer must immediately cease access to the Brand’s social media accounts (where access has been provided);
c. the Influencer will submit to the Brand all work done up to the date of termination which comprise the Services; and
d. each party must return or destroy (at the other party’s request) all Confidential Information of the other party.
6. Warranties and Indemnities
6.1 Each party warrants and represents to the other that:
a. it has full power and authority to enter into and fully perform its obligations under the Agreement and grants all necessary rights and licenses under this Agreement without violating the legal or equitable rights of any third party (including without limitation, any Intellectual Property Rights), which, when signed, will constitute binding obligations on the warranting party;
b. none of the acts, services or materials provided or created and/or modified by such party shall violate or will violate or infringe upon the rights of any third party, or contain any material that is obscene, defamatory, libelous, slanderous or injurious to the user;
c. in the case of the Influencer, that:
i. the Services will be of a professional nature, performed with skills necessary to carry out the Services contemplated under this Agreement;
ii. all material in the Content (save and except any materials, if any, supplied by the Brand) will be the original work and creation of the Influencer and will not infringe the rights of any third party;
iii. has appropriate permission, release, waiver or some other form of written permission of any third parties to use any third party content; and
iv. without limiting the generality of the foregoing, Influencer agrees not to use any third party content without the express written consent of the Brand; and
d. all acts, services, materials provided under this Agreement are in compliance with Applicable Law.
6.2 The parties agree that:
a. all express or implied warranties, representations, statements, terms and conditions relating to the Agreement or its subject matter which are not contained in the Agreement, are excluded from the Agreement to the maximum extent permitted by law; and
b. nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied by or imposed by any law (including statute or regulation) which cannot be lawfully excluded, restricted or modified.
6.3 The Influencer warrants that their profile has been grown by legal and/or through genuine efforts and not by deceitful means, such as buying followers.
6.4 The Influencer must indemnify and hold harmless the Brand and the Brand’s Employees from all claims and losses arising from loss, damage, liability, injury to the Brand, the Brand’s Employees and third parties, infringement of third party Intellectual Property Rights (including Moral Rights) or third party losses by reason of or arising out of any information (including Final Content) the Influencer supply to the Brand.
6.5 The parties agree that:
a. neither party will be responsible, liable or held in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is directly caused by the other party failing to comply with its obligations under the Agreement or negligence or misconduct of the other party or its employees, personnel or contractors;
b. each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done by the other party under or in connection with the Agreement; and
c. in no event will either party be liable to the other party for any incidental, indirect, consequential, punitive or special damages (including damages to business reputation, lost business or lost profits), whether foreseeable or not and however caused, even if such party is advised of the possibility that such damages might arise. The foregoing restrictions will not apply to a party’s confidentiality and indemnification obligations under the Agreement;
7. Confidentiality
7.1 Each party agrees that, unless it has the prior written consent of the other party, it will:
a. keep confidential at all times, the Confidential Information of the other party; and
b. ensure that any personnel, advisors, employees or contractors to whom Confidential Information is disclosed, is aware of and complies with this clause; however, these obligations of confidentiality do not apply to any disclosure that:
i. is for the purpose of performing the Agreement or exercising a party’s right under the Agreement;
ii. is required by Applicable Law; or
iii. relates to Confidential Information which is publicly available through no fault of the receiving party or its personnel, or was rightfully received from a third party without restriction and without breach of any obligation of confidence.
8. Miscellaneous
8.1 Relationship of Parties
The parties agree that:
a. the Influencer is an independent contractor and that the relationship between the Influencer and the Brand does not constitute a partnership, joint venture, agency or the relationship of employer and employee;
b. The Influencer will not undertake influencer marketing directly or indirectly for any competitor in the same vertical as the Brand for the period specified in the applicable Campaign Brief.
8.2 Dispute Resolution
If there is any dispute or if the Brand is not happy about the Services:
a. Please contact the Brand so that we can discuss and both parties will use their best efforts to resolve any dispute under, or in connection with the Agreement, through good faith negotiations with the other party.
b. In the event of a dispute arising out of this Agreement that cannot be resolved by mutual agreement, the Parties agree to engage in mediation and shall refer the dispute to an independent mediator as agreed and will use their best endeavours to resolve the dispute in mediation. All costs associated with the dispute (including legal, mediation or arbitration fees), will be at the expense of the Influencer.
8.3 Notice
Any written notice to be given under the Agreement is to be given by email to the Email Address in which case the notice is deemed to have been received at the time the message enters the recipient’s server, except if the notice is sent out of Business Hours or on a day other than a Business Day in which case, the notice is deemed to have been given on the next Business Day.
8.4 Entire Agreement
This Agreement together with the Campaign Brief and any additional Campaign Brief incorporating or referencing this Agreement, if applicable, constitutes the Brand’s entire agreement with the Influencer about the subject matter and supersedes all previous agreements, understanding and negotiations on that subject matter. The person signing or otherwise accepting this Agreement for the Influencer represents that s/he is duly authorised by all necessary and appropriate corporate action to enter this Agreement on behalf of the Influencer.
8.5 Governing Law
The formation, construction, performance and enforcement of the Agreement will be in accordance with the laws in force in the Australian State or Territory of the Brand’s address as set out in the Campaign Brief. The Influencer and the Brand submit to the exclusive jurisdiction of the courts of that jurisdiction.
8.6 Execution and Counterparts
The Agreement will become binding when any one or more counterparts of Campaign Brief, individually or taken together are signed by the parties. The Campaign Brief may be executed in counterparts and by way of electronic signature, including by clicking “I consent” or “I agree” or similar and if so, will be considered an original and properly executed.
8.7 Amendment or Variation
Any amendment or variation to the Agreement is not effective unless in writing agreed by the Influencer and the Brand.
8.8 Validity
Whenever possible, each provision of the Agreement will be interpreted in such a manner as to be effective and valid under Applicable Law, but if any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement will nevertheless remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid or enforceable provision.
8.9 Assignment
The Influencer cannot assign the Agreement or otherwise deal with the benefit of it or a right under it without the Brand’s prior written consent. the Brand may assign or novate the Agreement or otherwise deal with the benefit of it or right under it without the Influencer’s consent.
8.10 Interpretation
In the Agreement, clause and other headings are for ease of reference and do not affect the interpretation of the Agreement and:
a. words in the singular include the plural and vice versa;
b. a reference to a party to the Agreement includes the party’s permitted assigns; and
c. a reference to “including” and similar words do not imply any limit or exclusion.
9. Definitions
9.1 In the Agreement, the following terms have the stated meaning unless a contrary intention appears:
AANA
means the Australian Association of Advertisers.
AANA Guidelines
means the guidelines issued by AANA as amended from time to time.
ACL
means the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Agreed Purpose
means the purpose set out in the Campaign Brief.
Agreement
means this Agreement, the Campaign Brief and each Subsequent Campaign Brief.
AIMCO
means the Australian Influencer Marketing Council
AIMCO Code
means the Australian Influencer Marketing Code of Practice
Applicable Law
means (a) any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government; and (b) any guidelines that may apply to the Services provided under this Agreement, including but not limited to compliance with the United States’ FTC (Federal Trade Commission), Canada’s ASC (Advertising Standards Canada), Australia’s AANA, AIMCO Code and ACL.
Brand Content
means all materials, logos, information, photography, writings and other creative content provided to the Influencer by the Brandon behalf of the Brand for use in the performance of the Services and/or incorporation into the Final Content and includes content as set out in the Campaign Brief.
Business Day
means a day other than a Saturday, Sunday or public holiday in the city of Our address in the Campaign Brief.
Business Hours
means 9am to 5pm on any Business Day.
Campaign Brief
means Campaign Brief Part A and B and any Subsequent Campaign Brief.
Campaign Brief 1
means the first “Campaign Brief” entitled document signed by the Influencer and the Brandin relation to the Services.
Channels
means the Influencer’s social media channels, including but not limited to YouTube, Facebook, Instagram, Twitter, Pinterest and Snapchat.
Commencement Date
means the date that provision of the Services will commence as provided in the Campaign Brief.
Confidential Information
means information of a confidential nature including information about a party’s business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers and includes the terms of the Agreement but does not include any information in the public domain other than through a breach of confidence.
Display Period
means the period during which the Final Content shall be displayed across the Channels as specified in the applicable Campaign Brief.
Email Address
Means:
(a). Our email addresses as set out in the Campaign Brief;
(b). Your email address as set out in the Campaign Brief.
Feedback Dates
means the dates set out in the Campaign Brief.
Fees
means the fees set out in the Campaign Brief.
Final Content
means all content developed by or for the Brand and incorporated into and delivered as part of the Services including any visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typography treatments and text, modifications to Brand Content and Our selection, arrangement and coordination of such elements together with Brand Content or Third Party Materials.
Force Majeure
means illness, injury, emergency, pandemic, epidemic, war, act of God, sudden event or other circumstance beyond Our control.
GST
means goods and services tax chargeable under A New Tax System (Goods & Services Tax) Act 1999 Cth.
Hashtags
means the hashtags specified in the Campaign Brief including those hashtags required under Sponsored Hashtags.
Interest Rate
means the annual interest rate set out in the Campaign Brief.
Intellectual Property Rights
means all current and future registered and unregistered rights in respect of patents, copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, inventions (including patents), domain names, discoveries, data, databases, and all other rights resulting from intellectual activity whether created before or after the Commencement Date and whether in Australia or otherwise.
Key Dates
means the dates set out in the Campaign Brief.
Moral Rights
means the moral rights granted under the Copyright Act 1968 (Cth) including the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship and any similar rights existing under foreign laws.
Our Assigned IP
means the Intellectual Property Rights in the respect of the items listed in the Campaign Brief.
Our Employees
means the Brand’s employees, contractors, advisors, and personnel.
Our Obligations
means Our obligations under the Agreement.
Payment Dates
means the dates set out in the Campaign Brief.
Pre-Existing Materials
means all things, materials, documents, information and items developed by or on behalf of the Influencer or the Brand independently of this Agreement.
Restraint Period
means the period of time set out in the Campaign Brief.
Services
means the services set out in the Campaign Brief.
Sponsored Hashtags
means #sponsored and #ad and such other hashtags that may be required under Applicable Law.
Subsequent Campaign Brief
means each and any “Campaign Brief” entitled document signed by the Influencer and the Brand after Campaign Brief in relation to the Services.
Tax Invoice
has the meaning as set out in A New Tax System (Goods & Services Tax) Act 1999 Cth.
Term
means the term of the Agreement as specified in the Campaign Brief.
Third Party Materials
means all materials, documents, designs, photography and information of a third party.
You/Influencer
means the party set out in the Campaign Brief.
Your Employees
means the employees, personnel and advisors of the Influencer.
We/Us/Our/Brand
means the party set out in the Campaign Brief.