DIGITAL MEDIA/BRAND INFLUENCER AGREEMENT
CLIENT: [YOUR COMPANY] (“Client”)
PRODUCTS/SERVICES: [PRODUCTS/SERVICES BEING PROMOTED] (Products”)
CAMPAIGN: [CAMPAIGN NAME, e.g. CREATOR & COMPANY] (“Campaign”)
INFLUENCER: [INFLUENCER NAME] (“Influencer”)
INFLUENCER COMPANY: [NAME OF CLIENT] (“Company”)
EFFECTIVE DATE: [DATE OF THIS AGREEMENT] (“Effective Date”)
END DATE: [DATE OF CAMPAIGN END] (“End Date”)
This agreement, together with all attached exhibits and schedules (collectively, the “Agreement”) is, upon execution by Client and Influencer (as those parties are defined above) made effective as of the above-referenced Effective Date in connection with services to be provided and rights to be granted by Client and Company to support certain publicity, marketing and/or promotion efforts for the above-identified Products and Campaign.
1. Term. The term of this Agreement (“Term”) shall commence on the above-identified Effective Date and shall terminate at the end of the above-identified End Date.
- Scope of Services. “Influencer” shall perform the services (the “Services”) and grant or secure the grant of the rights set forth herein, in Schedule A (the “Rights”).
- Scheduling of Services. Influencer shall perform the Services and provide the deliverables set forth in Schedule A, and at the times specified therein. If no date, time or location is specified for Services or provision of deliverables in Schedule A (or if Influencer needs to reschedule any Services or deliverables), then Client and Influencer shall mutually agree on a date, time and location, subject only to the firm, written, contractual, prior-existing professional engagements of Influencer.
- Client will compensate Influencer through product or services which may include, but are not limited to, credits, discounts, access, and/or exposure as set forth in Schedule A. Influencer agrees compensation as set forth in Schedule A shall be full and complete consideration and compensation for all Services performed, Rights granted and expenses incurred under this Agreement, including under the provisions set forth in Schedule A. Client may require Influencer to submit a completed and signed IRS Form W-9 or other applicable tax form prior to providing compensation to Influencer. Other than as expressly set forth in Schedule A, no additional fees shall be owed by Client or Company to any third party (including without limitation Influencer or any other party) for Services provided or Rights specified in this Agreement, including in Schedule A.
Compensation & Billing. Client will pay Influencer the fees in U.S. dollars as set forth in Schedule A. Client shall pay Influencer all amounts set forth in Schedule A within sixty (60) days of Client’s receipt of Influencer’s invoice(s). Influencer agrees full payment as set forth in Schedule A shall be full and complete consideration and compensation for all Services performed, Rights granted and expenses incurred under this Agreement, including under the provisions set forth in Schedule A. Client may require Influencer to submit a completed and signed IRS Form W-9 or other applicable tax form prior to issuing any payment to Influencer. Other than as expressly set forth in Schedule A, no additional fees shall be owed by Client or Company to any third party (including without limitation Influencer or any other party) for Services provided or Rights specified in this Agreement, including in Schedule A.
- Expenses. Neither Client nor Company shall be liable to Influencer for any expenses paid or incurred by or on behalf of Influencer.
- Ownership/Grant of Rights. All Services, Rights, work product and deliverables produced or provided hereunder shall be subject to the definitions and license grants set forth below.
- Influencer Content: Pre-existing rights, intellectual property and content owned by Influencer, of the following types: Influencer names, nicknames, trademarks, biographical information, social media handles, URLs, and/or the voice, performance, images, footage, likeness or other indicia of identity of Influencer (collectively, the “Influencer Content”).
- Client IP: Client’s trademarks, trade names, brand names, trade dress, artwork, creative elements, text, Product information, data, research, Campaign details, other intellectual property, and any content provided by Client for use by Influencer as set forth herein (collectively, the “Client IP”).
- Company IP: Company’s trademarks, trade names, brand names, trade dress, artwork, creative elements, text Product information, data, research, Campaign details, other intellectual property and any content provided by or on behalf of Company for use by Influencer as set forth herein (collectively, the “Company IP”).
- Custom Content: Any deliverables, content, work product, elements and/or materials to be provided, produced, distributed and/or published hereunder by or on behalf of Influencer, including as set forth in Schedule A, in connection with publicity, marketing, promotion and/or advertising for Company, the Products and/or the Campaign (collectively, the “Custom Content”). The parties acknowledge and agree that Custom Content may or may not include Influencer Content, Client IP and/or Company IP. Custom Content includes any content related to the Campaign created and submitted by Influencer to Client for use by and on behalf of Company.
- License Granted:
- Unless revoked in writing by the Client, Influencer shall have the right to use, publish, broadcast, reproduce, transmit, license (including the right to sublicense), exhibit, perform, disseminate, post and distribute (“Use”) the Custom Content (including any Client IP and/or Company IP therein) as well as any photography, on and in connection with Influencer’s online channels only (the “Online Channels”) in publicizing, promoting, advertising, or marketing the Campaign.
- During the Term and in perpetuity thereafter, Client and/or Company may refer to or acknowledge the current or past participation in the Campaign by Client and/or Company or Influencer, as applicable.
- Subject to the terms and conditions of Use set forth above, each party understands and agrees that any Custom Content (including any Influencer Content therein) and content created for Use to the Online Channels may reside on the Online Channels during and after the Term, and the viewing or interaction with any such content by a third party after the Term shall not constitute a breach of this Agreement. For clarity, Custom Content and/or content created for Use to the Online Channels posted as set forth herein during the Term in compliance with the provisions of Schedule A on the Online Channels may remain in the history or archives of such Online Channels. Client and Influencer acknowledge and agree that the license hereunder includes the right by Client and/or Company to make modifications or edits and/or re-publish the Custom Content and/or content created for Use to the Online Channels as deemed necessary by Client.
- Influencer will not mention any other brands, businesses, or accounts whatsoever in content they create unless explicitly pre-approved in writing by Client.
- License to Influencer; Ownership of Custom Content: Solely as specified in this Agreement, Influencer shall have a limited, royalty-free, non-exclusive, revocable, terminable license to use the Client IP and/or the Company IP in producing and providing Custom Content, subject to Client’s prior written approval in all instances (with all such approvals submitted as set forth in Section 7 below and Schedule A). Influencer acknowledges and agrees that Influencer will not have any right, title or interest in or to any of the Client IP or the Company IP whatsoever. Moreover, Influencer understands that the Client IP, together with the goodwill of its business symbolized thereby, are the sole and exclusive property of Client or its affiliates, and that the Company IP, together with the goodwill of its business symbolized thereby, are the sole and exclusive property of Company or its affiliates. Influencer shall not take any action that could interfere with any of Client’s rights in and to the Client IP, or Company’s rights in and to the Company IP, or any respective benefits therefrom or make any claim or take any action adverse to their respective ownership therein. Influencer acknowledges and agrees that its use of the Client IP or the Company IP shall not create any right, title or interest in Influencer’s favor and all use of the Client IP and/or Company IP by Influencer and any rights arising therefrom, and goodwill generated thereby, shall inure solely to the benefit of Client and Company, respectively. Upon request by Client, Influencer shall use Influencer’s best efforts to remove any of the Client IP and/or the Company IP from the Online Channels, it being understood and agreed that such removal will take place as soon as reasonably possible, it being further understood and agreed that the Online Channels are operated by third parties and any such removal may be subject to their control.
- License to Client and Company. To the extent Influencer Content is included in the Custom Content, Influencer grants Client and Company a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, paid-in-full, fully sublicensable and transferable right and license to use the Custom Content for any online use, distribution, public display, transmission, and to publish the Custom Content (in whole or in part) on or in connection with Company’s online channels and the promotion of Company, throughout the universe, by any and all means of distribution and exploitation now known or hereafter devised, and the right to assign, sublicense or other transfer any and all such rights, in whole or in part, to any third party. Company may use or sublicense the Custom Content for commercial purposes which may include modifications to the original work.
- Review and Approvals. Client reserves the right to limit the release, posting or dissemination of any Custom Content, Client IP or Company IP or other materials that mention or refer to Client, Company, the Products or Campaign, by Influencer, except as expressly set forth herein. Any such limitation will be made to Influencer by Client in writing. Client’s determination to limit any such release, posting or dissemination shall be made in Client’s sole discretion.
- Professional Rendition of Services. Influencer represents and warrants that Influencer will perform the Services in a diligent, professional and workmanlike manner in accordance with the specifications set forth herein (including Schedule A). In providing the Services hereunder, Influencer will be subject to Client’s reasonable direction and control, and will comply with whatever reasonable instructions, suggestions and recommendations Client may give in connection with the rendition of such Services.
- Representations, Warranties and Covenants. Influencer represents, warrants and covenants that: (a) it has the full and unrestricted right, power and authority to enter into this Agreement and to fully perform all of the obligations under this Agreement, including the performance of Services; (b) it is not and will not be subject to any contractual obligation, legal disability or restriction which will or might prevent full compliance with the obligations set forth herein, or which will create any liability on the part of Client or Company; (c) Influencer shall be solely responsible for verifying the accuracy, completeness, and applicability of all content created for Use to the Online Channels; (d) the performance by Influencer of the obligations set forth herein does not and will not violate, infringe, misappropriate or conflict with the intellectual property or other rights of any third parties; (e) in providing Services hereunder, Influencer will use its best commercial efforts to comply with all applicable social network and other online/mobile service policies, terms and procedures, and (f) to the extent Influencer makes any public statement (whether oral or written) regarding or in endorsement of Client, the Products or the Campaign, such statement or endorsement shall not: (i) be false or misleading, (ii) fail to properly disclose (as required by law and using substantially the terms provided by Client, if any) Company’s relationship to Client or the Products, as applicable, or (iii) be in violation of applicable law, regulation or regulatory guidelines, including without limitation, the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising.
- Indemnification. Influencer shall indemnify, defend, and hold harmless Client and Company, and their respective parents, affiliates and subsidiaries, and each of their respective officers, employees, managers, members, directors, legal representatives, agents, successors and assigns (“Client/Company Indemnified Parties”) from and against any and all claims, damages, cost, judgments, liabilities, penalties and expenses of any kind (including, without limitation, reasonable outside attorneys’ fees and litigation costs, including without limitation any incurred in the enforcement of this indemnity) arising from (i) any breach by Influencer of any of its representations, warranties, covenants or agreements under this Agreement; (ii) any negligent act, willful misconduct or omission of Influencer in connection with Services and/or Rights provided hereunder; or (iii) any claims of infringement or misappropriation of copyright, trademark, patent, trade secret or other intellectual property or proprietary right, infringement of the rights of privacy or publicity or defamation or libel in connection with any content or material created by Influencer.
- Termination; Survival. A party may terminate this Agreement immediately in the event that the other party has materially breached the Agreement and fails to cure such breach within fifteen (15) days of receipt of notice by the non-breaching party, setting forth in reasonable detail the nature of the breach. Client will pay Company all fees related to the Services performed through the date of termination. Sections 6(a)-(d), 6(f), 6(g), 8, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 20 shall survive any termination of this Agreement.
- Public Statements/Postings & Non-Disparagement. During the Term and for a period of twelve (12) months thereafter, Influencer shall not depict Client, Company, the Products or Campaign in a manner that is inconsistent with the instructions of Client or in a manner that could reasonably be perceived as negative, derogatory or detrimental to Client, Company, the Products, Campaign, or Client’s brands, reputation, or trademarks.
- Influencer Behavior. If, prior to or during the Term and for six (6) months thereafter, Influencer is charged with or has committed a crime or engages in any actions involving moral turpitude or which may bring Client or Company or any of its brands under ridicule, contempt, scandal, public disrepute, or which shock, insult, or offend people of the United States or any class or group thereof or reflect unfavorably upon Client or Company, or which in the reasonable judgment of Client is or may be detrimental to Client or Company or its brands, then Client may immediately terminate this Agreement by written notice to Influencer. Any termination pursuant to this Section will take effect forty-eight (48) hours after receipt of such written notice by Influencer. Thereafter no party will have any further obligation to the other with respect to the Agreement, except as to those provisions of the Agreement which specifically set forth their survival beyond the termination of the Agreement.
- Non-circumvention. During the Term and for a period of twelve (12) months thereafter, without the prior written consent of Client, which consent may be withheld in Client’s sole discretion, Influencer shall not attempt directly or indirectly in any manner (a) contact Company or its affiliates or representatives regarding the providing of the Services, Campaign or any similar services without Client’s involvement as set forth herein, (b) utilize the Campaign or any similar services to any competitor of Company without Client’s involvement under terms and conditions similar to those herein, and (c) utilize any confidential information of Client or Company in any manner whatsoever. Any violation or breach of this Section 14 shall be deemed a material breach of this Agreement by Influencer.
- Independent Contractor Status/Waiver/Taxes. Influencer shall not be entitled to, and each of the foregoing waives, any and all claims to any employee benefits, it being understood by the parties hereto that any relationship established by this Agreement is one of an independent contractor and not an employment relationship, joint venture, partnership or otherwise. No workers’ compensation insurance shall be obtained by or on behalf of Client or Company covering Influencer. Influencer shall be solely responsible for any and all taxes that may fall due as a result of the Services.
- Each party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any and all information of a confidential nature (including without limitation trade secrets and information of commercial value) that may become known to such party from the other party, and which relates to the other party unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party and the provisions of this Section 16 shall remain in full force and effect notwithstanding any termination of this Agreement. Other than as permitted in this Agreement, no party will disclose any terms of this Agreement to any third party other than as required by law or to its attorneys, accountants, and other professional advisors under a duty of confidentiality.
- During the Term and for a period of one (1) year thereafter, Influencer shall at all times and at Influencer’s sole cost and expense obtain and keep in full force and effect the following types of insurance, in amount, kind and form, and with such insurers, satisfactory to Client and/or Company in their sole discretion, providing such coverage as is customarily covered by such types of insurance including, without limitation:
- customary errors and omissions insurance: (i) covering, among other things, legal liability and defense against lawsuits alleging the unauthorized use of title, format, ideas, characters, plots, plagiarism, copyright infringement and unfair competition, (ii) protecting against alleged libel, slander, defamation of character and invasion of privacy, and (iii) in a minimum amount of one million dollars ($1,000,000) per occurrence and five million dollars ($5,000,000) in the aggregate, with a deductible of not more than ten thousand dollars ($10,000), and with a period of coverage ending not less than two (2) years after the End Date;
- comprehensive liability insurance covering, among other things, all claims for bodily injury, personal injury or property damage which arise in connection with the Campaign, Services and Use, without limitation, coverage for all and all owned, non-owned and hired vehicles with minimum liability limits per occurrence of two million dollars ($2,000,000), and with a deductible of not more than ten thousand dollars ($10,000); and
- workers compensation insurance for any and all employees engaged by or on behalf of Influencer in relation to the Campaign and Services.
- All such insurance shall name Client and Company as additional insureds, and upon request, Influencer shall promptly provide Client and/or Company with written proof of any and all such coverage.
- Governing Law; Venue; Attorneys Fees. This Agreement and any action related thereto will be governed, and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for San Diego County, California, for any lawsuit arising from or related to this Agreement. If any legal action, dispute, or other proceeding arises or is commenced to interpret, enforce or recover damages for the breach of any term of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees incurred in connection with that action, in addition to costs of suit.
- Notice. Except as otherwise provided herein, all notices that either party is required or may desire to give the other party hereunder shall be in writing and shall be sufficiently given if (i) delivered in person, (ii) sent by registered or certified mail, either postage prepaid, or (iii) sent by prepaid overnight courier. All such notices shall be addressed to each party as follows:
If to Influencer:
If to Client:
- This Agreement, along with any and exhibits and schedules, constitutes a single agreement and represents the entire understanding between the parties regarding the subject matter hereof, and supersedes all prior or contemporaneous oral and written agreements, negotiations, representations, understandings and correspondence. No waiver, modification or addition to this Agreement, including without limitation, Schedule A hereto, shall be valid unless in writing and signed by the parties to this Agreement. Any failure of either party to enforce any provision of this Agreement, or any right or remedy provided for therein, shall not be construed as a waiver, estoppel with respect to, or limitation of that party’s right to subsequently enforce and compel strict compliance or assertion of a remedy. This Agreement shall not be transferred or assigned, in whole or in part, or subcontracted to any third party, in whole or in part, by Influencer without the prior express written approval of Client. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, the remaining terms and provisions of this Agreement shall remain unimpaired and in full force and effect. All notices required to be given hereunder shall be given in writing. This Agreement may be executed in any number of counterparts and each such counterpart shall for all purposes be deemed an original. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or pdf shall be as effective as delivery of a manually executed counterpart of this Agreement. Provisions which by their nature must remain in effect beyond the termination of this Agreement shall survive, including, but not limited to representations, warranties, intellectual property rights, indemnity obligations and confidentiality obligations.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.
[INFLUENCER] [YOUR COMPANY]
- COMPENSATION / SERVICES
DESCRIPTION OF WHAT [YOUR COMPANY] OR [YOUR COMPANY’S] CLIENT WILL PROVIDE INFLUENCER FOR USE IN THE CAMPAIGN: EXAMPLE: Client shall provide Products for use by Influencer, and Company shall provide Products featured by Influencer for sale on Company’s website (____.com)
DESCRIPTION OF WHAT INFLUENCER WILL PROVIDE / PERFORM DURING THE CAMPAIGN: EXAMPLE: Influencer will post X times during the stay and provide 10 edited photos
DESCRIPTION OF CAMPAIGN TIMELINES. EXAMPLE: Campaign will be a 3-day/2-night stay over a weekend in the month of June 2019
- DISCLOSURES & GUIDELINES.
DESCRIPTION OF ANY REQUIREMENTS. EXAMPLE: Follow all FTC guidelines regarding disclosure
- COMPETITIVE PROTECTION/EXCLUSIVITY. [EXAMPLE: During the Campaign (the “Exclusivity Period”), Influencer shall not post, distribute or release any content that publicizes, promotes, features, mentions, or refers to products that compete with Company’s services or products (“Competing Products”) during the Exclusivity Period. During the Exclusivity Period, Influencer agrees not to promote or otherwise advocate for Competing Products through any of their respective communications vehicles, including personal blogs, web sites, or other social media.]