Influencer Agreement—
Terms & Conditions.
This Influencer Agreement (Agreement) is made between you (Influencer) and Social Chameleon Limited, a company incorporated in England and Wales with company number 13012065 whose registered office is at Lynton House, 7-12 Tavistock Square, London, WC1H 9BQ (Agency).
Interpretation
1 In this Agreement, unless the context requires otherwise:
1.1 ASA means Advertising Standards Authority.
1.2 Brand means a client of the Agency that has provided Products for a Campaign.
1.3 Briefing Email means the email the Agency sends out before any Campaign starts outlining the particulars of that Campaign, such as the relevant Products and Campaign Assets.
1.4 Campaign means the promotional activities associated with a particular UGME box and the Products in that box (including the Deliverables), as outlined in the Briefing Email.
1.5 Campaign Assets means the specific promotional activity content that an Influencer must deliver to the Agency in connection with a Campaign.
1.6 Claims means any claims, actions, rights, demands and set offs or the like in any jurisdiction, whether or not presently known to the Parties or to the law, and whether in law, equity or under statute.
1.7 Confidential Information means:
(a) information of a proprietary nature to the Agency or the Brand;
(b) trade secrets of the Agency or the Brand; and/or
(c) information which the Agency deems to be confidential (including by attaching a label or mark stating ‘confidential’ to the relevant document).
1.8 Conflicting Collaboration means any partnership, campaign or collaboration in which the Influencer has been involved:
(a) which may conflict with the interests of a Brand (for example, a previous partnership, campaign or collaboration involving a direct competitor of the Brand); and
(b) in the two-month period before receiving a Briefing Email.
1.9 Deliverables means the Campaign Assets and the Post Metrics together.
1.10 Influencer Assets means the Influencer’s pre-existing content, trademarks, service marks, logos, names (including nicknames and stage names), biography, signature, image, voice and likeness.
1.11 ISBA Code means the ISBA and IMTB Influencer Marketing Code of Conduct.
1.12 Loss means any loss or damage:
(a) of every kind and nature, including pecuniary and non-pecuniary, present and future, fixed and unascertained, actual and contingent, and known or unknown;
(b) however caused, including whether arising directly, indirectly or consequentially; and
(c) such as damages, costs or expenses (including legal costs on an indemnity basis), debts, dues, liabilities, interest, penalties, loss of profit or loss of reputation.
1.13 Parties means both parties to this Agreement.
1.14 Party means a party to this Agreement.
1.15 Platform means any social media platform, including Instagram, YouTube, TikTok, Twitter and Facebook.
1.16 Post Metrics means all performance analysis, data and insights from any content that the Influencer has produced for the purposes of a specific Campaign, including engagement rates, reach and impressions.
1.17 Products means the products of the Agency’s clients included in particular UGME boxes.
1.18 Response Date means the date which is three days before the date any Campaign box is to be sent out.
1.19 Restricted Period means the 12-month period following the end of any Campaign.
1.20 UK GDPR means the UK General Data Protection Regulation.
2. No rule of construction will disadvantage a Party because that Party was responsible for preparing all or part of this Agreement.
3. In this Agreement, the words ‘includes’, ‘including’, ‘for example’, ‘such as’ or other similar expressions (in any form):
3.1 are not used as words of limitation; and
3.2 do not limit the meaning of the words which any example seeks to illustrate to the particular example given, or examples of a similar kind.
Term
4. This Agreement shall start on the date the Influencer agrees to take part in his or her first Campaign and will continue until the date that:
4.1 the Parties agree to discharge this Agreement in writing; or
4.2 a Party exercises its termination rights under clauses 29 to 31 below.
Scope of Work
5. If the Influencer agrees to take part in a specific Campaign, the Influencer agrees to:
5.1 promote the Products through the relevant Platforms (for example, by posting content featuring the Products) starting on the date he or she receives the Products;
5.2 deliver the Campaign Assets within 10 days of having received the Products; and
5.3 provide the Post Metrics to the Agency within seven days of the Agency requesting this material in writing.
Remuneration
6. In consideration for the Influencer taking part in a specific Campaign, the Agency agrees to provide the Influencer with specified Products that the Brand has provided.
7. The Agency will determine the number and type of Products that it will provide to the Influencer as remuneration in kind in its absolute discretion.
8. To avoid any doubt, the Agency will not pay the Influencer any sum of money in connection with a Campaign unless the Parties agree otherwise in writing.
Initial phase
9. Before each Campaign, the Agency will send out a Briefing Email to all potential influencers setting out the particulars of the relevant Campaign. The email will contain among other things:
9.1 the details of the relevant Products (including the specific kind and number);
9.2 the date that the box of Products forming part of the Campaign box is to be sent out to a participating influencer; and
9.3 the proposed Campaign Assets (including the relevant Platform, post format, number of posts and hashtags).
10. The Influencer agrees to respond to the Briefing Email by no later than the Response Date.
10.1 In the Influencer’s responsive email, the Influencer must:
(a) identify any Products that he or she does not wish to receive; and
(b) disclose the details of any Conflicting Collaboration.
10.2 If the Influencer agrees to receive all of the Products and does not disclose any Conflicting Collaboration, then the Influencer must undertake the obligations set out in clause 5 above.
10.3 If the Influencer agrees to receive only some of the Products, then the Influencer shall not take part in the specified Campaign.
10.4 If the Influencer agrees to receive all of the Products but he or she discloses a Conflicting Collaboration, the Agency:
(a) reserves the right not to use the Influencer for the specified Campaign; and
(b) will set out the terms of any scope of work in its reply email.
10.5 If the Influencer fails to reply to the Briefing Email by the Response Date, he or she will be deemed to have agreed to take part in the specified Campaign and to undertake the obligations set out in clause 5 above.
11. To avoid any doubt, the Agency:
11.1 will select any Products forming part of a Campaign in its absolute discretion, such as by selecting Products that align with the Campaign’s goals and/or the profile of a particular influencer or influencer group; and
11.2 is entitled to make any changes or substitutions to the Products forming part of a Campaign at any time and in its absolute discretion.
Performance
12. The Influencer agrees that:
12.1 the Influencer Assets used in connection with any Campaign will not contain any defamatory content;
12.2 the Influencer’s use of the Influencer Assets in connection with any Campaign will not breach any contract, duty of confidentiality or any law, or infringe any third party’s data protection rights;
12.3 any relevant Influencer Assets will comply with:
(a) the relevant Platform’s terms of use;
(b) all applicable laws, as amended from time to time; and
(c) all applicable regulatory guidance, as updated from time to time, including:
(i) the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing;
(ii) the UK Code of Broadcast Advertising; and/or
(iii) the Competition and Markets Authority’s Guidance on Hidden Ads.
13. The Influencer further agrees that:
13.1 the Campaign Assets will not contain any defamatory content;
13.2 the Influencer’s posting of the Campaign Assets will not breach any contract, duty of confidentiality or any law, or infringe any third party’s data protection rights;
13.3 the Campaign Assets will comply with:
(a) the relevant Platform’s terms of use;
(b) all applicable laws, as amended from time to time; and
(c) all applicable regulatory guidance, as updated from time to time, including the ASA guidance on testimonials and endorsements; and
13.4 the Campaign Assets will properly disclose the Influencer’s relationship with the Agency (for example, by applying an appropriate mark, such as #ad, in a way that is clear and comprehensible to a consumer).
14. The Influencer agrees that, in his or her dealings with the Agency, the Influencer will comply with the obligations applicable to influencers in the ISBA Code. However, if an obligation the ISBA Code places on the Influencer conflicts with a duty this Agreement imposes on the Influencer, the latter will prevail.
15. The Influencer will, in performing his or her obligations under this Agreement, comply with UK GDPR and the Data Protection Act 2018 in relation to any personal data that he or she processes or shares.
16. During the term of this Agreement, the Influencer agrees that:
16.1 The Influencer will not engage in any activity (including a partnership, campaign or collaboration) that conflicts with the Agency’s interests.
16.2 The Influencer will not engage in any online behaviour that:
(a) harms the Agency’s or Brand’s reputation; and
(b) is, in the Agency’s sole opinion, inappropriate, unethical or likely to damage the Agency’s or Brand’s reputation.
16.3 The Influencer will not make any negative comment or statement publicly (including on any Platform or to the press) in relation to a Campaign, a Product, a Brand, UGME or the Agency.
(a) If the Influencer has a negative experience with one of the Products, the Influencer must discuss their negative experience with the Agency and, if the Agency in its absolute discretion agrees in writing, the Influencer will not be required to post about the Product online.
(b) To avoid any doubt, if the Agency provides its written consent under clause 16.3(a) above, the Influencer is entitled to keep the Products.
17. The Influencer agrees to remove or take down the following within one day of a request by the Agency to do so in writing:
17.1 any Campaign Assets; or
17.2 any online content that, in the Agency’s sole opinion, constitutes a breach of the Influencer’s obligations under clauses 12 to 16 above.
Warranties
18. The Influencer warrants and represents that:
18.1 the Influencer has the legal capacity to enter into and to perform this Agreement;
18.2 the Influencer has not entered into, and will not enter into, any other commitment (including any professional or legal commitment) which would or might prevent the Influencer from discharging his or her obligations under this Agreement;
18.3 to the best of his or her knowledge and belief, the Influencer has not used forms of technology (such as paid followers or bots) artificially to inflate his or her follower numbers on any Platform, or to make his or her posts appear more popular;
18.4 for the two months before the start date of any Campaign, the Influencer has not worked with or promoted a direct competitor of any Brand that has provided any Product for that Campaign; and
18.5 as at the date of this Agreement, the Influencer has not engaged in behaviour that is, in the Agency’s sole opinion, inappropriate, unethical or damaging to the Agency’s reputation or Brand’s reputation.
Non-competition and non-circumvention
19. In the Restricted Period, the Influencer will not:
19.1 work with or promote a direct competitor of any Brand that has provided any Product for that Campaign; and
19.2 accept a paid collaboration or partnerships with any Brand that provided any Product for that Campaign.
20. If the Influencer wishes to enter into a paid collaboration with a Brand in the Restricted Period (whether as a result of the Brand requesting the Influencer to enter into such a collaboration or otherwise), then the Influencer agrees that:
20.1 the Influencer will notify the Agency immediately;
20.2 the Influencer will appoint the Agency to act as its agent for the purposes of negotiating the terms of the collaboration; and
20.3 the Agency is entitled to be paid a reasonable commission based on the value of the paid collaboration.
Confidentiality
21. The Influencer acknowledges that, whilst performing his or her obligations under this Agreement, the Influencer may receive or have access to Confidential Information.
22. Subject to clause 26 below, the Influencer must not disclose, or directly or indirectly permit to be disclosed, any Confidential Information.
23. The Influencer must reasonably ensure that the Confidential Information remains secret.
24. The Influencer may only use the Confidential Information for the purposes of performing his or her obligations, or exercising his or her rights, under this Agreement.
25. The Influencer’s confidentiality obligations will expire five years after the date that this Agreement ends.
26. The Influencer may disclose the Confidential Information:
26.1 on a confidential basis to the Influencer’s representative to extent necessary for that representative to assist the Influencer in discharging his or her obligations under this Agreement;
26.2 on a confidential basis to the Influencer’s professional advisors (including lawyers, financiers and insurers) engaged to advise on matters relating to this Agreement;
26.3 to the extent the law requires;
26.4 if the Agency breaches any term of this Agreement; and
26.5 with the Agency’s written consent.
Intellectual Property
27. The Agency agrees that the Influencer owns, and will continue to own:
27.1 the Influencer Assets; and
27.2 all intellectual property rights in all materials created by the Influencer in connection with any Campaign, including any Campaign Assets.
28. The Influencer grants the Agency and the Brand an irrevocable, perpetual, non-exclusive, royalty-free, worldwide license to:
28.1 use, reproduce or display the content that the Influencer has created under this Agreement for promotional purposes; and
28.2 modify or adapt that content as the Agency or Brand sees fit in order to fulfil its promotional purposes.
Termination
29. The Influencer may terminate this Agreement without cause and for any reason by giving the Agency 28 days written notice.
30. The Agency may terminate this Agreement without cause and for any reason by giving the Influencer seven days written notice.
31. The Agency may terminate this Agreement immediately by giving the Influencer written notice if:
31.1 the Influencer commits a breach of a term of this Agreement which is irremediable;
31.2 all of the following are satisfied:
(a) the Influencer commits a breach of a term of this Agreement which is remediable;
(b) the Agency issues a written notice specifying the breach and requiring the Influencer to remedy it; and
(c) the Influencer fails to remedy the breach by seven days after the notice date;
31.3 the Influencer is, in the Agency’s sole opinion, likely or in fact unable to provide the Deliverables in accordance with this Agreement’s terms; or
31.4 the Influencer becomes insolvent; or
31.5 a third party applies to make the Influencer bankrupt.
32. If the Agency terminates this Agreement for cause, the Agency will be entitled to recover the following from the Influencer, without prejudice to its rights to recover any further damages at law or under this agreement:
32.1 the retail value of the Products;
32.2 all costs of and associated with shipping any relevant Products to the Influencer; and
32.3 any amount that the Agency is obliged to pay or repay to the Brand that directly or indirectly results from the Influencer’s breach of this Agreement.
Indemnity and Limit of Liability
33. The Influencer will indemnify the Agency and/or the Brand against any Loss suffered by the Agency and/or the Brand arising out of, or in connection with, any third party Claims made against the Agency and/or the Brand arising out of or related to:
33.1 any breach of the terms of this Agreement by the Influencer;
33.2 any content created by the Influencer in connection with this Agreement (including in connection with any Campaign); or
33.3 any online comment or statement made by the Influencer in connection with this Agreement (including in connection with any Campaign).
34. To the maximum extent the law permits, the Agency limits its liability for any Loss that the Influencer may suffer arising out of, or in connection with, any Claims arising out of or related to this Agreement (including a claim in contract, tort (including negligence) or in equity) to £50.
Force Majeure
35. The Influencer will not be liable for any loss the Agency or Brand suffers if:
35.1 the loss results from the Influencer’s delay in performing, or failure to perform, any of his or her obligations under this Agreement; and
35.2 the delay or failure was due to any circumstances beyond the Influencer’s reasonable control (including a natural disaster, fire, strike, act or order of public authority or a Planform outage).
36. To avoid any doubt, if a force majeure event falling within clause 35 above occurs, the Influencer will not be liable for any consequential loss that the Agency or Brand suffers only for the period during which the relevant event subsists.
Governing Law and Jurisdiction
37. The law of England and Wales shall govern:
37.1 this Agreement; and
37.2 any dispute or Claim (including any non-contractual dispute or Claim) arising out of, or in connection with, this Agreement, its subject matter or its formation.
38. This Agreement shall be construed in accordance with the law of England and Wales.
39. Each Party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or Claim (including any non-contractual dispute or Claim) arising out of, or in connection with, this Agreement, its subject matter or its formation.
Miscellaneous
40. This Agreement:
40.1 constitutes the entire agreement between the Parties regarding its subject matter (including the provision of the Deliverables); and
40.2 supersedes any previous agreements, understandings, undertakings, representations, warranties, negotiations or discussions regarding this Agreement’s subject matter.
41. The Influencer agrees that the Agency may vary this Agreement unilaterally at any time.
42. If a court holds that all or part of any clause of this Agreement is illegal or unenforceable, then that clause or part of the clause will be severed from this Agreement, and the remaining clauses will continue to operate in full. However, this clause has no effect if the severance alters the basic nature of this Agreement, or contravenes public policy.
43. The Influencer may only assign, transfer, novate or subcontract any of its rights under this Agreement with the Agency’s written consent.