PLEASE READ THESE TERMS CAREFULLY. THEY SET OUT THE CONTRACT BETWEEN YOU AND US FOR YOUR USE OF OUR SERVICES.
Date of last amendment: February 16, 2019
TABLE OF CONTENT
4. Usage Rights;
5. Quality of Audiences;
7. Measurement and Reporting;
8. Warranties and Liability;
10. Data Protection;
12. Limitation of Liability;
a) In this Agreement, the following terms shall have the meaning specified in the scope of work ("Scope of Work") that will be sent to you at the beginning of each campaign:
4. Campaign Commencement Date;
6. Digital Channels
8. Reporting Obligations;
9. Reporting Deadline;
10. Exclusivity period;
11. Content Usage Period
b) In this Agreement, unless the context otherwise requires:
1. “We’, “Us”, “Our”, “Key Element” refers to Key Element
2. words importing the singular shall include the plural and vice versa; words importing the masculine shall include the feminine and neuter and vice versa; and
3. “including” means “including, without limitation” and “include” shall be construed accordingly.
a) The Scope of Work, together with these terms and conditions shall be the agreement between the Influencer and Key Element relating to the Campaign (“Agreement”);
b) The term of this Agreement shall be the period commencing on Campaign Commencement Date and terminating on the expiry of the Content Usage Period (“Term”).
c) The Influencer shall create the Deliverables and will provide its services in connection with the Campaign, in accordance with the reasonable instructions of Key Element and the terms of this Agreement.
a) The Influencer shall:
1. comply with its obligations set out in the Scope of Work;
2. comply with the reasonable instructions of Key Element;
3. create the Deliverables and submit during the timetables set out in the Scope of Work
4. once approved by the Brand, upload the Deliverables onto the Influencer’s agreed social media channels in accordance with the timing deadlines set out in the Scope of Work, and maintain such Deliverables during the Content Usage Period;
5. allow the Brand to upload the Deliverables onto digital media channels outside of the Influencer’s control during the Content Usage Period. For the avoidance of doubt, digital media channels include but are not limited to, websites, social media channels;
6. at any time, both during and after the Content Usage Period remove or amend the Deliverables immediately from the social media channels owned or controlled by the Influencer at the request of the Brand; and
7. use reasonable skill and care in the provision of the Deliverables in connection with the Campaign.
b) Labelling of Deliverables and compliance with laws:
1. The Influencer shall:
1. Comply with all applicable laws and all rules (FTC Guidelines).
2. Ensure that the labels #ad or #sponsored or #paid (as well as any campaign hashtags as set out in the Scope of Work) is placed prominently and legibly on all Deliverables, and that such label is visible to the viewer prior to the viewer engaging with such Deliverables;
3. Obtain the Brand’s prior approval before using any other hashtag disclosure that is not specified in this Agreement;
4. Comply with the Brand’s instructions when referring to the Brand’s products or services in the Deliverables;
5. Ensure all Deliverables are truthful, socially responsible, not defamatory or harmful to any third party, not illegal or offensive, not violent and do not depict dangerous or anti social behavior;
6. Not do anything or authorize any activity (whether directly or indirectly) in post-production of the Deliverables which could be misleading in relation the effects of use of the Brand;
7. Ensure that any opinions expressed by the Influencer in the Deliverables are honestly held and are not exaggerated;
8. Not include any third party content or intellectual property rights (including by way of example, music, logos, other people, other branded products) in the Deliverables unless it has obtained permission from the owner of intellectual property rights or third party content
c) Reputational issues
1. During the Usage Period, the Influencer agrees not to do or say anything (or omit to do or say anything) that may cause adverse publicity to the Influencer, Key Element, the Brand, its business or its products or brands or the Campaign;
2. The Influencer agrees that during the Usage Period, the Influencer will not provide its services in connection with any brand, product, service or entity that competes with the Brand without prior written consent from the Brand.
4) USAGE RIGHTS
a) The Influencer grants to the Brand the right to use the Deliverables for the duration of the Content Usage Period from the Campaign Commencement Date in the Digital Channels, provided that the Brand credits the Influencer;
b) After the Content Usage Period, the Brand will not use the Deliverables. However, given the nature of the internet, the Deliverables may be available online after the Content Usage Period. The Influencer agrees that the Brand shall not be responsible for removing any Deliverables from any third party media after the Content Usage Period, or for any use of the Deliverables by third parties either during or after the Content Usage Period;
c) Where the Brand provides any materials, copy, product names, logos, trade marks or other information for inclusion in the Deliverables (“Brand Materials”), the Influencer shall follow all instructions in relation to such usage, and shall cease use of the Brand Materials on termination of this Agreement or on the Brand’s request;
d) Unless agreed with the Brand in writing in advance, the Influencer will not otherwise refer to any Brand Materials without the prior written approval of the Brand and will not alter, adapt or edit the Brand Materials in any way unless expressly authorized to do so. All intellectual property rights in the Brand Materials shall remain the property of the Brand. The Influencer shall not obtain any rights in such Brand Materials and all goodwill in such Brand Materials will accrue to the benefit of the Brand.
5) QUALITY OF AUDIENCES
a) The Influencer agrees not to engage in any practices in relation to promotion of the Deliverables which artificially increase the perceived engagement with the Deliverables. By way of example only, such prohibited practices could include:
1. paying (whether directly or indirectly) a third party to increase the number of likes on Deliverables and/or on the Influencer’s channels in order to make the Influencer and/or its content appear to have a wider and more engaged audience than it actually does;
2. using (or authorizing others to use) automated means such as bots, software or programs to increase the number of likes, comments, shares or other engagements with Deliverables;
3. non-human fraudulent likes or followers; and/or
4. other unethical, dishonest, non-organic or non-human methods of increasing perceived engagement with the Deliverables
b) In the event that Key Element or the Brand has a reason to suspect that the Influencer has breached this clause 5 this shall entitle Key Element to terminate this Agreement in accordance with clause 11.
a) Key Element will pay the Influencer the Fee, subject to satisfactory receipt of all Deliverables in accordance with the Scope of Work;
b) Payment of the Fee shall be payable within 30 days of content being published.
c) Where the Consideration includes free or discounted product or services, such product or service shall be for the Influencer’s personal use only, and the Influencer shall not (whether during or after the Content Usage Period) be entitled to sell or give away such product or service to third parties;
d) Key Element is committed to safeguarding the privacy of our influencers and will not disclose your Fee to clients or third parties.
7) MEASUREMENT AND REPORTING
a) The Influencer shall provide Key Element with such reports, analytics and data as shall be requested by Key Element (and in accordance with any requirements set out in the Scope of Work) during and after the Campaign in order to assist Key Element in reviewing the Campaign’s success and viewer engagement with the Deliverables.
8) WARRANTIES AND LIABILITY
a) The Influencer warrants, represents and undertakes to Key Element that:
1. The Influencer is over 18 years of age;
2. The Influencer has the right and power to enter into this Agreement;
3. the use of the Deliverables will not infringe any intellectual property rights or any other rights of any third party;
4. the Deliverables are not defamatory, libellous, slanderous, obscene or likely to cause offence;
5. the Influencer has not and will not commit a criminal offence and will not commit an act or omission that would be likely cause Key Element, the Brand, the Brand’s products or services, the Influencer or the Campaign any adverse publicity;
a) No party to this Agreement shall disclose the content of this Agreement, the Campaign or any Scope of Work, the marketing or business plans of Key Element or the Brand or the details of the Fee, or any confidential information of the other party (“Confidential Information”) to any third party. This obligation shall survive termination of this Agreement;
b) Confidential Information shall not include information which is in the public domain or which is required to be disclosed by law;
c) For the duration of the Agreement and for one year following its termination (for whatever reason), the Influencer shall not attempt to contact and/or engage a Brand (whether directly or indirectly) that the Influencer has had contact with via Key Element without prior written consent of Key Element.
10) DATA PROTECTION
a) The Influencer agrees to Key Element holding and processing its personal data (as defined in EC Regulation 2016/679 known as the GDPR) in connection with the Campaign;
b) Key Element shall process the Influencer’s data solely for the purposes of the Campaign and in accordance with the GDPR;
c) The Influencer acknowledges and agrees that it shall comply with its obligations under the GDPR and other applicable laws relating to processing data and marketing by electronic communications (“Data Privacy Laws”) to the extent that it is processing any personal data of third parties when providing the Deliverables, and in such event, the Influencer will enter into such other agreements as shall be required by Key Element setting out obligations in relation to Data Privacy Laws.
a) Key Element shall have the right to terminate this Agreement immediately on written notice to the Influencer:
1. If the Influencer commits a material breach of these Terms and, if such breach is capable of remedy, fails to remedy the breach within 7 days;
2. If the Influencer fails to fulfil any of its obligations;
3. If the Influencer commits an act or omission which causes adverse publicity to the Influencer, Key Element the Brand or its products or the Campaign; or
4. If the Influencer becomes incapacitated, bankrupt or otherwise unable to perform its obligations.
b) If Key Element terminates this Agreement under this clause 11, the Influencer shall repay all Fees that have been paid to it under this Agreement and Key Element shall have no further payment obligation to the Influencer.
c) Neither termination nor suspension of this Agreement shall otherwise affect a party’s accrued rights and obligations at the date of termination;
d) Clauses 4, 8, 9, 10, 11, 12 of this Agreement shall continue after termination of this Agreement.
12) LIMITATION OF LIABILITY
a) Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent such liability may not be excluded or limited as a matter of law.
b) Subject to Clause 12.a above (and including for the avoidance of doubt any indemnity contained in this Agreement), in no event will either party be liable under or in connection with this Agreement for:
1. loss of actual or anticipated income or profits;
2. loss of goodwill;
3. loss of anticipated savings;
4. loss of data; or
5. any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise, whether or not such loss or damage is foreseeable, foreseen or known.
a) Any notice required to be given under this Agreement shall be in writing signed by each party and may be delivered by email.
b) No variation of this Agreement shall be valid unless it is in writing and signed by each of the parties to these Terms.
c) If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
d) 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.
e) In the event of a conflict between this Agreement and any Scope of Work, the Scope of Work shall take precedence.
f) This Agreement is personal to the Influencer and the Influencer may not subcontract, assign or delegate any obligations under this Agreement to any third party.
g) The relationship of the Influencer to Key Element is that of an independent contractor. This Agreement is a contract for the provision of services and not a contract of employment. Nothing in this Agreement is intended to or shall operate to create a relationship of employment, partnership or joint venture of any kind between the parties nor shall either party be authorized to act as agent for the other.
h) This Agreement contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.
i) This Agreement and any disputes or claims arising in connection with these Terms and any Scope of Work shall be governed by the laws of State of California. Each party irrevocably submits to the exclusive jurisdiction of the courts of California for the resolution of any dispute arising in connection with these Terms and any Scope of Work.