1.2 In this Agreement:
1.2.1 a reference to this Agreement includes its schedules;
1.2.2 a reference to ‘writing’ or ‘written’ includes email;
1.2.3 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time.
2 Engagement
2.1 The Agency engages the services of the Talent in connection with the marketing, advertising and promotion of the Advertiser’s products in accordance with this Agreement (including the relevant Project Assignment). The Talent shall provide the Services to the Agency and create the Talent Materials in accordance with this Agreement, including any deadlines agreed in a Project Assignment. Each Project Assignment signed by duly authorised representatives of each party shall form part of and be governed by the terms of this Agreement.
2.2 The Talent shall ensure that any Talent Materials published or promoted on the Talent Channels shall be reasonably transparent to users as being marketing in accordance with advertising regulations, industry guidance and best practice, including by:
2.2.1 as a minimum requirement, using hashtag disclosures such as #ad prominently, at the beginning of a post, or in the video or reel title (where applicable);
2.2.2 where such functionality exists on a social media platform, clicking any relevant box (or using other similar functionality as the social media platform provides) when posting the Talent Materials to indicate and/or declare that the Talent Materials are paid-for content; and
2.2.3 including any specific disclosures, hashtags or form of words set out in the relevant Project Assignment.
2.3 The Talent shall ensure that:
2.3.1 any Talent Materials are not misleading to consumers and do not contain unsubstantiated claims on the perceived benefits or faults of the Advertiser’s products; and
2.3.2 the Talent Materials should not be artificially filtered, augmented or edited in such a way as to give a misleading impression of the effects or benefits of any Advertiser product.
2.4 The Talent shall at all times comply with:
2.4.1 all applicable laws, guidance, regulations and codes of practice relevant to the Services, including advertising regulations and the ISBA Influencer Marketing Code of Conduct, in each case as may be updated from time to time; and
2.4.2 any Agency or Advertiser branding or content guidelines (as may be updated from time to time) and any other reasonable instructions from the Agency in relation to the Services.
2.5 The Talent shall, as part of the Services, provide to the Agency and/or the Advertiser any information reasonably requested in relation to:
2.5.1 the demographics and statistics of the Talent’s social media followers; and
2.5.2 any feedback, engagement results, analytics, metrics, comments and other outcomes in relation to the Services, to enable the Agency and the Advertiser to assess the return on investment and evaluate the performance of the campaign(s) to which the Services relate, for a period of 1 year after the publication of the Talent Materials on the Talent Channel.
2.6 Information provided under clause 2.5 may be presented by way of screenshots of the Talent Channel insights but the Talent shall grant access for the Agency to review and access the data upon request.
2.7 This Agreement shall start on the Effective Date and shall terminate automatically without notice 1 year after the final Talent Material is published to the Talent Channel (the Term), subject always to earlier termination pursuant to the terms of this Agreement.
3 Approval and publication of Talent Materials
3.1 The Talent shall submit all Talent Materials to the Agency for prior approval on the dates stated within the Project Assignment.
3.2 The Talent is responsible for publishing the content to their channels on the dates agreed in the project Assignment or via email if amended.
3.3 The parties agree that the Agency shall have final editorial control over the Talent Materials and is entitled to one full editorial revision included within the agreed fees under the Project Assignment, which includes the reshooting of materials if necessary.
3.4 The Agency shall only be entitled to request amendments to edit the way in which the Advertiser’s brand is featured or mentioned in the Talent Materials and/or in order to make any changes the Agency deems necessary.
3.5 The Agency must notify the Talent of any required changes within 10 working days of receipt of the Talent Materials.
3.6 If any requested amendments or edits under clause 3.2 are minimal (in the reasonable opinion of the Agency), the Talent will implement the amendments or edits as soon as possible to meet the publication date listed in the Project Assignment or an agreed date set by both parties via email if not stipulated in the Project Assignment.
3.7 If any requested amendments or edits under clause 3.2 are extensive (in the reasonable opinion of the Agency), the parties will amend the publication date listed in the Project Assignment to a date that suits both the Advertiser and the Talent.
3.8 The Agency is entitled to postpone the publication date listed in the Project Assignment for up to 30 days and any such postponement shall be communicated to the Talent.
3.9 The Talent shall not publicly release and/or make available any Talent Materials which have not been approved by the Agency.
3.10 Subject to clause 3.10, the uploaded Talent Materials shall remain live and publicly accessible on the Talent Channels for a period of no less than one (1) year from the date that the Talent Materials go live, unless an alternative period is agreed and set out in a Project Assignment.
3.11 Subject to clause 3.10, the Talent Materials shall remain live and publicly accessible on the Advertiser Channels for the Period. The Advertiser may not edit or modify the Talent Materials other than to replicate the Talent Materials and/or elements thereof on the Advertiser Channels during the Period.
3.12 At any time upon written request, the Talent shall promptly remove and delete: all Talent Materials (or any part thereof) posted by or on behalf of the Talent in connection with the Services from any or all Talent Channels (as applicable); and all references to and associations with the Advertiser on the Talent Channels or elsewhere.
3.13 In exceptional circumstances, where any existing or previous association between the Advertiser and the Talent would cause, or is likely to cause, significant or irreparable reputational damage to the Talent, the Talent may request removal of the Talent Materials on the Talent Channels and/or the Advertiser Channels. Any request will be agreed at the Advertiser’s discretion (acting reasonably).
4 Grant of endorsement rights
4.1 The Talent grants to the Agency and the Advertiser the right and licence throughout the world for the duration set out in the Project Assignment, to use and exploit the Talent Image Rights in connection with the endorsement, promotion, marketing or advertising of the Advertiser and/or its products solely in connection with the Talent Materials.
4.2 The Talent agrees that the Agency and the Advertiser may use and reproduce (and authorise others to do so) reproductions of the Talent Image Rights for and in connection with the promotion and commercial exploitation of the Advertiser’s products solely in connection with the Talent Materials.
5 Intellectual property
5.1 The Advertiser retains ownership of all intellectual property rights subsisting in the Advertiser’s brand and its products. During the Term of this Agreement, the Agency shall procure a non-exclusive, worldwide, royalty-free licence for the Talent to use the intellectual property rights in the Advertiser’s brand, products and any other materials in each case solely as provided by the Agency or the Advertiser to the Talent and strictly to the extent required for the Talent to perform the Services.
5.2 The Talent agrees to grant the Agency and the Advertiser a royalty-free licence throughout the world to use, reproduce and exploit the Talent Materials on the Agency and the Advertiser’s social media channels and/or digital advertising campaigns, in each case with an appropriate credit given to the Talent in relation to the applicable Talent Materials.
5.3 The Talent authorises the Agency and the Advertiser to boost any Talent Materials on the Talent Channel.
5.4 The Talent grants to the Agency and the Advertiser all necessary consents under applicable law (including the Copyright, Designs and Patents Act 1988) to enable the Agency and the Advertiser to make the fullest possible use of the Services, the Talent Image Rights and the Talent Materials as contemplated in this Agreement.
5.5 The Talent irrevocably and unconditionally waives, in perpetuity, all moral rights in Talent Materials and all similar rights under the laws of any jurisdiction whether now existing or conferred in the future.
6 Fees and expenses
6.1 Subject to the Talent rendering the Services in accordance with the terms of this Agreement, The Agency agrees to pay to the Talent the Fees as set out in the relevant Project Assignment.
6.2 The Fees shall be inclusive of all use fees, residuals, repeat fees, re-use fees, royalties or other payments whatsoever.
6.3 The Agency shall pay all undisputed invoices submitted by the Talent to accounts@growthgorilla.co.uk within 30 Days of the date of receipt.
6.4 All amounts payable under this Agreement shall be exclusive of sales, use, value added, goods and services, and all other similar taxes (but not including withholding tax), if any, imposed by a governmental entity for any taxable supply provided under this Agreement. The Talent shall be solely responsible for all income tax and national insurance contributions due in respect of the Fees.
6.5 If, after approval of a Talent Material, the Talent decides not to publish the Talent Material on the Talent Channel, the Talent shall pay a cancellation fee of 50% of the relevant Fee to the Agency.
6.6 If, after approval of a Talent Material, the Agency or the Advertiser decide not to publish the Talent Material on the Talent Channel or Advertiser Channel, the Agency must notify the Talent at least 24 hours before the publication date specific in the Project Assignment. In such an event, the Agency shall pay the Talent 100% of the relevant Fee.
7 Warranties and indemnity
7.1 The Talent warrants, represents and undertakes to the Agency that:
7.1.1 the Talent Materials are the Talent’s original works and use by the Agency and/or the Advertiser of the Talent Materials and Talent Image Rights in accordance with the terms of this Agreement shall not infringe the rights of any third party;
7.1.2 the Talent is entitled to enter into this Agreement and has full power and authority to grant the rights expressed to be granted under this Agreement and the Talent is exclusively entitled to give all assurances, confirmations, waivers and agreements set out in this Agreement to enable the Agency and/or the Advertiser to exploit the Talent Image Rights and Talent Materials as described in this Agreement without making any further payment other than as expressly set out in this Agreement;
7.1.3 the Talent Materials shall comply with:
(a) all applicable laws (including data protection laws), regulations and binding codes of practice, including advertising regulations; and
(b) all terms and conditions and/or terms of use of any social media platforms or other online platforms used by the Talent in relation to the Services;
7.1.4 the Talent Materials shall not include any:
(a) third party content (e.g. music or other branded products) unless the Talent has obtained permission from the owner of the intellectual property rights in any such third party content and/or prior written approval from the Agency;
(b) material which could reasonably be interpreted as racist, anti-Semitic, homophobic, misogynistic, pornographic, violent, extreme, bullying, aggressive or religiously intolerant or insensitive;
(c) material which promotes or includes any criminal activity; or
(d) personal data (as defined in the Data Protection Act 2018) of any third party;
7.1.5 the Talent shall render the Services diligently, and to the best of the Talent’s skill and ability in willing cooperation with others and in the manner reasonably required by the Agency or by its appointed representatives;
7.1.6 the Talent shall not engage in any practices to artificially inflate its number of social media followers or engagements, or to otherwise mislead the Agency or its appointed representatives;
7.1.7 the Talent shall not be in breach of any agreement with or of any obligation to any third party by reason of entering into this Agreement and performing the Services and the Talent has obtained all necessary rights, licences, consents permissions and approvals necessary to:
(a) enter into this Agreement;
(b) enable the Agency and/or the Advertiser to use the Talent Materials as contemplated hereunder; and
(c) grant the rights purported to be granted herein and to perform its obligations set out herein;
7.1.8 the Talent shall not at any time do or say anything, or be involved or associate with any activity which is or may be considered by the Agency to:
(a) be detrimental or prejudicial to or to affect adversely the name, image, reputation or business of the Agency or the Advertiser or any of its products; or
(b) bring the Talent, the Agency or the Advertiser or any of its products into disrepute;
and the Talent is not aware of any past statement or action taken by the Talent which would be, or would be likely to be, in breach of this provision;
7.1.9 the Talent shall not, for the duration of the Services and for one month after completion of the Services, provide services which are similar to (or the equivalent of) the Services to any direct competitor of the Advertiser, or in relation to any products or services which are similar to or substitutable for the Advertiser’s products or services; and
7.1.10 the Talent shall not without the prior written consent of the Agency make any statement or disclosure or supply any confidential information to any party relating to the Agency or the Advertiser or its products within the Talent’s knowledge by reason of the rendering of Services under this Agreement.
7.2 The Talent shall immediately inform the Agency in the event:
7.2.1 it is in breach of, or is likely to be in breach of, this Agreement;
7.2.2 the Talent is aware of any relevant circumstances, facts or allegations which might be detrimental or prejudicial to or to affect adversely the name, image, reputation or business of the Agency or the Advertiser or any of its products, or otherwise bring the Talent, the Agency, or the Advertiser or any of its products into disrepute; or
7.2.3 it is unable, or is likely to be unable, to perform the Services in accordance with this Agreement.
7.3 The Talent shall indemnify and hold harmless the Agency and the Advertiser from and against any and all liabilities, losses, claims, demands, damages, costs and expenses (including reasonable legal costs and expenses and VAT) suffered or incurred directly or indirectly by the Agency or the Advertiser in consequence of any breach or alleged breach by the Talent of any warranties contained in this Agreement.
8 Limitation of liability
8.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 8.
8.2 Subject to clauses 8.5 and 8.7, each party’s total liability shall not exceed the Fees.
8.3 Subject to clauses 8.5 and 8.7, neither party shall be liable for consequential, indirect or special losses.
8.4 Subject to clauses 8.5 and 8.7, neither party shall be liable for any of the following (whether direct or indirect):
8.4.1 loss of profit;
8.4.2 loss of revenue;
8.4.3 loss or corruption of data;
8.4.4 loss or corruption of software or systems;
8.4.5 loss or damage to equipment;
8.4.6 loss of use;
8.4.7 loss of production;
8.4.8 loss of contract;
8.4.9 loss of commercial opportunity;
8.4.10 loss of savings, discount or rebate (whether actual or anticipated);
8.4.11 harm to reputation or loss of goodwill; and/or
8.4.12 loss of business.
8.5 The limitations of liability set out in clauses 8.2 to 8.4 shall not apply in respect of any indemnities given by the Talent under this Agreement.
8.6 Except as expressly stated in this Agreement, and subject to clause 8.7, all warranties and conditions whether expressed or implied by statute, common law or otherwise are excluded to the extent permitted by law.
8.7 Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
8.7.1 death or personal injury caused by negligence;
8.7.2 fraud or fraudulent misrepresentation;
8.7.3 any other losses which cannot be excluded or limited by applicable law;
8.7.4 any losses caused by wilful misconduct.
9 Termination
9.1 Either party may terminate this Agreement (without prejudice to their other rights and remedies) with immediate effect by written notice to the other party if the other commits a material breach of this Agreement and, if capable of remedy, fails to remedy such breach within 5 Business Days.
9.2 The Agency may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect upon written notice to the Talent if the Talent:
9.2.1 is incapacitated from rendering the Services;
9.2.2 is convicted of any criminal offence;
9.2.3 has conducted itself, in the Agency’s opinion, in such a manner which might be detrimental or prejudicial to or to affect adversely the name, image, reputation or business of the Agency, or the Advertiser or any of its products, or otherwise bring the Talent, The Agency, or the Advertiser or any of its products into disrepute;
9.2.4 has breached any of the warranties provided at clause 7.1; or
9.2.5 is in persistent breach of this Agreement.
9.3 The Agency may terminate this Agreement for convenience at any time upon 5 Business Days’ written notice to the Talent.
9.4 Without prejudice to any obligations or rights which have accrued to either party at the date of termination or expiry, upon termination or expiry of this Agreement, the parties shall have no further obligations or rights under this Agreement save that those clauses which by their nature are intended to survive shall do so.
10 Notices
10.1 Any notice or other communication given by a party under this Agreement shall be in writing.
10.2 Notices may be given, and are deemed received:
10.2.1 by hand: on receipt of a signature at the time of delivery;
10.2.2 by post: at 9.00 am on the second Business Day after posting;
10.2.3 by email: upon transmission.
10.3 This clause does not apply to notices given in legal proceedings or arbitration.
11 Assignment and sub-licensing
The Talent shall not, without the prior written consent of the Agency, assign, sub-license or deal in any other manner with this Agreement or any rights under this Agreement, or subcontract any or all of the Talent’s obligations under it or purport to do any of the same.
12 Confidentiality
The Talent shall not use or disclose to any person, except to the Talent’s professional representatives or as may be required by law or any legal or regulatory authority, the terms of this Agreement or any confidential information concerning the business or affairs of the Agency, or the Advertiser or its products which may have or may in the future come to their knowledge. The Talent shall not use any such confidential information except for the performance of this Agreement or make any announcement relating to this Agreement or its subject matter without the prior written approval of the Agency.
13 Entire agreement
This Agreement (together with any and all Project Assignments) constitutes the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes any previous agreement or understanding between the parties in relation to such subject matter. In entering into the Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person other than as expressly set out in herein.
14 No partnership or agency
Nothing in this Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and neither party shall have authority to bind the other in any way.
15 Variation
No provision of this Agreement (or any document entered into in connection with this Agreement) shall be modified or varied without the written consent of the parties.
16 Waiver
The failure of either party to enforce or exercise at any time any term or any right under this Agreement does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.
17 Third party rights
A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.
18 Governing law
This Agreement and any dispute or claim arising out of, or in connection with, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
19 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).
