Influencer / Creator Agreement
BACKGROUND
(A) The Company wishes to receive and the Supplier wishes to provide a range of services as further described in the front sheet that you’ve been sent (the “front sheet”) and, where applicable, in one or more Schedules on a per Campaign basis
(B) The parties agree that such services shall be supplied in accordance with the terms of this Agreement.
(C) This agreement, including the front sheet, these terms and conditions and any Schedules, constitutes a binding agreement
1. Definitions
1.1 In this Agreement, the following definitions shall apply:
“Affiliate” means in relation to a party which is a company, any body corporate which is controlling or controlled by that party or any body corporate controlled by the company or persons which control the party and “control” is as defined in section 1124 of the Corporation Tax Act 2010.
“Agent” means the duly authorised representative of the Influencer, as identified on the Term Sheet.
“Agreement” means these Terms and Conditions, the Term Sheet, the Influencer Brief (if any) and Social Chain’s Processor to Processor Data Processing Agreement at https://bravebison.com/data-processing-agreement-processor-to-processor
“Applicable Law(s)” means any applicable laws and all rules and regulations for the time being in force in any relevant jurisdiction, including, without limitation, consumer laws, advertising laws, regulations, guidance, and codes of practice and all rules, regulations and codes of practice relating to social media platforms and applicable to the Services in any relevant jurisdiction, including, without limitation, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (“CAP Code”), any guidance published by the Advertising Standards Authority, Committees of Advertising Practice and consumer protection legislation enforced by the Competition and Markets Authority or any other relevant regulatory body, including any updates, additions, modifications, or supplemental guidance.
“Brand” means all logos, images, trademarks, names, business names or any other names of Client or any of its Affiliates.
“Business Days” means any day other than a Saturday, Sunday or public holiday in England and Wales.
“Campaign” means the Client’s campaign set out in the Term Sheet.
“Campaign Term” means the term of the Campaign, as set out in the Term Sheet.
“Client” means the Client of Social Chain, or its Affiliates named in the Term Sheet.
“Client Materials”, “Social Chain” or “SC” means Social Chain Limited (company number 09166785);
“Confidential Information” means all information related to the provision of the Services, the Campaign, Social Chain, its Affiliates, the Client, and any other clients of Social Chain or its Affiliates, however recorded or preserved, disclosed, furnished, or otherwise made available by Social Chain, the Client or their respective employees, officers, representatives, advisers or sub-contractors, which are of a confidential nature and any information that is by its nature proprietary or confidential whether or not marked or identified as confidential, including, without limitation, the Influencer Brief, the terms of this Agreement and the Client Materials.
“Contribution” has the meaning ascribed to it in Clause 6.1.1.
“Deliverables” means the deliverables described in the front sheet or any future statement of work scoped out in substantially the same form as the Term Sheet, including, without limitation, all performances and literary, artistic and musical material created by the Influencer in the course of providing the Services.
“Exclusivity Rules” means the rules set out in the Term Sheet regarding the exclusivity of the Services provided by the Influencer.
“Fees” means the fees set out in the front sheet or any future statement of work scoped out in substantially the same form as the Term Sheet.
“Influencer” or “Supplier” means you, the content creator / influencer identified in a Term Sheet.
“Influencer Brand” means the name, social media handle, image, likeness, voice, performance, or other indicia of Influencer’s identity, and all logos and trademarks (registered or unregistered) now or hereafter in existence, belonging to, or in the control of, Influencer (or Influencer’s authorised representative).
“Influencer Brief” as set out in Schedule 1 of a Statement of Work;
“Intellectual Property Rights” or “IPR” means any and all copyright, database rights, design rights, domain name rights, patents, trademarks and all other intellectual property rights whether registered or not, and applications for such rights.
“Intellectual Property Rights” or “IPR” means any and all copyright, database rights, design rights, domain name rights, patents, trademarks and all other intellectual property rights whether registered or not, and applications for such rights.
“Media” means the media specified in the Term Sheet on which the Deliverables may be used, including without limitation, social media accounts, websites, print, point of sale, and other digital platforms.
“Platform(s)” means the social media account(s) owned or controlled by Influencer set out in the Term Sheet to which the Deliverable(s) shall be published.
“Publication Date(s)” means the date(s) set out in the Term Sheet on which Influencer shall publish the Deliverable(s) on the relevant Platform(s).
“SC Brand” means all logos, images, trademarks, names, business names or any other names of Social Chain or any of its Affiliates.
“SC Campaign Materials” means all and any strategy marketing information or materials developed by Social Chain in relation to the Campaign.
“SC Campaign Materials” means all and any strategy marketing information or materials developed by Social Chain in relation to the Campaign.
“Services” means the services described in the front sheet or any future statement of work scoped out in substantially the same form as the Term Sheet.
“Client Materials”, “Social Chain” or “SC” means Social Chain Limited (company number 09166785);
“Supplier” or “Influencer” means you, the content creator / influencer identified in a Term Sheet.
“Term Sheet” or “front sheet” means the front sheet or any future statement of work scoped out in substantially the same form as the Term Sheet signed by the Influencer setting out the services to be provided and the fees payable for services.
Third Party Materials: proprietary third-party materials, including, but not limited to, stock photography or stock illustrations.
1.2 In this Agreement:
1.1.1 any references to a statute or statutory provision include references to that statute or statutory provision as from time to time amended, extended or re-enacted and to any rules, orders, regulations and delegated legislation made thereunder;
1.1.2 clause, schedule and appendix headings shall not affect the interpretation of this Agreement;
1.1.3 unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
1.1.4 unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
1.1.5 any words following the terms “including,” “include,” “in particular,” “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms;
1.1.11 references to sections are to sections of the Term Sheet.
1.1.12 In the event of any conflict between these Terms and Conditions and the terms of a Term Sheet, the terms of the Term Sheet shall prevail.
1.1.12 In the event of any conflict between these Terms and Conditions and the terms of a Term Sheet, the terms of the Term Sheet shall prevail.
1.3 If the Term Sheet is signed by an Agent on behalf of the Influencer, the parties agree that any obligations, terms or conditions that apply to the Influencer or representations or warranties made by the Influencer in the Agreement shall be construed as an obligation on the Agent to procure that Influencer shall perform such obligations, comply with the terms and conditions and provide the representations and warranties included in the Agreement.
2. SERVICES.
2.1 In consideration of the mutual obligations set out in the Term Sheet (if any) and the payment of the Fees (if any) the Influencer shall provide the Services and Deliverables:
2.1.1 at such times and locations as mutually agreed and strictly in accordance with the timetable, if any, set out in the Term Sheet or Influencer Brief or in accordance with Social Chain’s instructions;
2.1.2 in a competent, professional and conscientious manner and to such standard as to be expected from a first-class provider of services which are of the same or similar kind as the Services to be provided;
2.1.3 in a manner and of a standard that fits with the Brand and the SC Brand and at all times shall act and behave in a manner fitting with such brands;
2.1.4 in accordance with the Exclusivity Rules as may be set out in the Term Sheet.
2.1.5 in cooperation with such persons as Social Chain may require;
2.1.6 in accordance with any Applicable Laws, any Social Chain policies or guidelines issued to Influencer and any laws, guidelines or policies stated in the Term Sheet;
2.1.7 the Company’s code of conduct as well as their clients’ codes of conduct in place from time to time (copies available upon request).
2.1.7 the Company’s code of conduct as well as their clients’ codes of conduct in place from time to time (copies available upon request).
2.2 For the duration of the Campaign Term, Influencer and Agent, if applicable, shall:
2.2.1 provide current telephone details and email address for the Influencer and Agent, if applicable;
2.2.2 be available to Social Chain by phone and email
2.2.3 promptly respond to any voicemail, text message or email communication received from Social Chain within 1 (one) Business Day of receipt.
2.2.4 Failure to comply with this provision is a material breach of the Agreement.
2.3 Influencer acknowledges and agrees that neither Social Chain nor the Client is obliged to use the Deliverable(s).
2.4 Influencer shall not prior to the Publication Date, without the prior written consent of Social Chain:
2.4.1 copy, publish, distribute or send the Content Idea(s) or the Deliverable(s) to someone other than the Agent or a Social Chain representative;
2.4.2 show or allow anyone other than the Agent or a Social Chain representative to view or access the Content Idea(s) or Deliverables.
2.5 Without prejudice to any other right or remedy under this Agreement, if Influencer is late in delivery and/or publication of the Deliverable(s), the Influencer shall pay a sum equal to 10% of the Fee for each day of delay, as liquidated damages, unless an alternate Delivery Date or Publication Date has been agreed to by the Parties in writing three (3) days prior to such late delivery or publication. The parties confirm that these liquidated damages are reasonable and proportionate to protect Social Chain’s and Client’s legitimate interest in performance.
2.6 Influencer has and shall immediately disclose to Social Chain at least two (2) weeks in advance of the earlier of:
2.6.1 the signature of this Agreement;
2.6.1 the date the first Services are due to commence, any criminal convictions and any past, pending or ongoing legal action or criminal or regulatory investigation.
2.7 During the term of this Agreement, should Influencer become the subject to any legal, regulatory and/or criminal action, including but not limited to any arrest without charge, Influencer shall immediately notify Social Chain. Social Chain reserves the right to terminate this Agreement with immediate written notice to the Influencer in the event the Influencer becomes the subject of any legal, regulatory and/or criminal action.
2.8 Influencer, and Agent if applicable, shall each hold and maintain all applicable policies with reputable insurers for the performance of the Services, such scope and level of insurance to be no less than industry standard and necessary and/or customary to cover their liabilities under this Agreement. Influencer shall provide Social Chain with copies of all relevant certificates for the purposes of evidencing the same upon request.
3. ACCEPTANCE & USE OF DELIVERABLES
3.1 Social Chain shall have full and final creative and editorial control over any Deliverable published on a Platform.
3.2 The Services and Deliverables shall be accepted by Social Chain in writing and Social Chain shall give any approvals in writing (including by email).
3.3 Influencer acknowledges that publication of the Deliverable(s) without the prior written approval of Social Chain shall constitute a material breach of this Agreement.
3.4 Influencer shall clearly and conspicuously disclose their relationship with the Client and that Influencer has a material connection (i.e. receipt of payment or other compensation) with the Brand or the Client using whatever ad disclosure is required by Applicable Law, including, without limitation, using the ‘Paid Partnership’ tool on the relevant Platform. Influencer must display #ad or such other relevant ad disclosure in a manner without the need for a Platform user to click for more information g. within the first three lines of an Instagram caption, irrespective of what type of device they are using to view the post.
3.5 Throughout the Term of this Agreement and thereafter, Influencer shall not alter or amend the Deliverable(s) published on the Platform(s) without Social Chain’s and/or Client’s written approval. Influencer acknowledges that such alteration or amendment of the Deliverable(s) shall constitute a material breach of this Agreement.
3.6 Influencer shall immediately provide a copy to Social Chain of any notification they receive from a Platform administrator requesting the removal of any Deliverable.
3.7 Social Chain has the right to require Influencer to takedown or remove the Deliverable(s) for any reason at any time. Influencer shall comply with such request immediately and provide Social Chain with written confirmation or a screenshot evidencing removal of the Deliverable. This clause shall survive the expiration or termination of this Agreement.
3.8 Where Social Chain will post the Deliverables on its own social media channels or website, Social Chain shall use reasonable efforts to provide Influencer with a credit or other form of acknowledgement (in a form and manner of Social Chain’s choosing) of Influencer’s involvement in the Deliverables or the Campaign.
4. FEES
4.1 In consideration for providing the Services, Social Chain will pay the Influencer (or the Agent if so indicated on a Term Sheet) the Fees, if any.
4.2 The Fees are exclusive of VAT and include all costs and expenses, unless otherwise stated on the Term Sheet. Where Fees are exclusive of costs and expenses, these costs and expenses must be agreed in advance with Social Chain and must be supported by receipts or other documentary evidence as appropriate.
4.3 The Fees are payable within 30 days of the date of the invoice, subject to:
4.3.1 written acceptance of the Deliverables by Social Chain and publication of the Deliverables in accordance with the agreed Publication Date;
4.3.2 Social Chain’s receipt of the relevant fees from the Client in relation to the Services;
4.3.3 delivery of the insights from Influencer;
4.3.4 receipt of a valid invoice by Social Chain.
4.3.4 receipt of a valid invoice by Social Chain.
4.4 The Influence shall pay any bank transfer, foreign exchange fees or other payment fees related to the transfer of the Fee. If Social Chain incurs such fees, Influencer shall reimburse Social Chain for such fees without any deduction within thirty (30) days of Influencer’s receipt of a valid invoice from Social Chain.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 Save for the Influencer Brief, the Brand, Client Materials, SC Brand and the SC Campaign Materials, Influencer shall be the sole originator of all and any materials they use, copy, distribute or otherwise incorporate into the Content Idea(s) and the Deliverable(s), including, without limitation, all static photos, moving images and music.
5.2 Social Chain shall retain all Intellectual Property Rights in the SC Brand, the Influencer Brief and in any SC Campaign Materials provided to the Influencer.
5.3 The Client shall retain in Intellectual Property Rights in the Brand and in any Client Materials provided to the Influencer.
5.4 The Influencer shall retain all Intellectual Property Rights in the Influencer Brand.
5.5 Influencer shall use any Client Materials and SC Campaign Materials with reasonable care and strictly in accordance with the Influencer Brief and Social Chain’s instructions.
5.6 Influencer is hereby granted a non-exclusive, royalty-free, non-sublicensable and non-transferable licence during the Campaign Term to use and incorporate into the Deliverables the Influencer Brief, the SC Campaign Materials, the Client Materials and Client Brand for the sole purposes of providing the Services and supplying the Deliverables. Except as stated herein, in no event shall ownership of the Intellectual Property Rights in the Influencer Brief, the SC Campaign Materials, the Client Materials and Client Brand vest in, be transferred or otherwise be licenced to Influencer.
5.7 Except as otherwise set out in Clause 5.6, Influencer shall not at any time during the term of this Agreement, or after its expiry or termination, use or refer to the Client Brand or Client Materials.
5.8 Social Chain shall be granted either: (a) ownership of or (b) licence to the Deliverable(s) as specified in the Term Sheet and subject to the provisions of Clause 6 or 7, as appropriate.
6. OWNERSHIP OF DELIVERABLES
6.1 Where Social Chain is granted ownership of the Deliverable(s), the following shall apply:
6.1.1 the Influencer assigns to Social Chain absolutely with full title guarantee all its right, title and interest in and to the copyright and all other rights (including without limitation all performers’ property rights under Part II of the CDPA) throughout the world in all media whether now known or hereafter developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, insofar as the Influencer is able, in perpetuity) including by way of present assignment of future copyright and all other rights in the deliverables and in all products of the Services including, without limitation, all performances and literary, artistic and musical material created by the Influencer in the course of providing the Services and the Deliverables (together the “Contribution”).
6.1.2 The Influencer irrevocably grants to Social Chain their consent to make full use of the Contribution, and any extracts from the Contribution, in all media worldwide.
6.1.3 The Influencer irrevocably grants to Social Chain a non-exclusive licence worldwide for the term of this Agreement to use, and to authorise others to use, the Influencer Brand and recordings of interviews commissioned by Social Chain in connection with the Campaign and otherwise for the purposes of fulfilling this Agreement for the purposes of announcing and publicising, in all media, the Influencer’s association with, and provision of the Services to, the Client and/or the Brand and in connection with any use of the Contribution with respect to the Campaign.
6.2 The Influencer recognises that Social Chain has the unlimited right to edit, copy, alter, add to, take from, adapt and translate the Contribution and dub it into one or more foreign languages and the Influencer irrevocably and unconditionally waives the benefit of their moral rights arising under Parts I and II of the CDPA and performers’ non-property rights arising under Part II of the CDPA and any similar laws of any jurisdiction in favour of Social Chain and the Client and/or the Brand and all their licensees, sub-licensees, assignees and successors in title to the copyright in the Contribution.
6.3 Social Chain hereby grants to Influencer a worldwide, limited, perpetual, non-exclusive licence to use the Deliverable(s) on their social media channels, portfolio or personal websites and to reproduce, distribute copies of, display publicly, and create derivatives of the Deliverables for the sole purpose of professional advancement.
6.4 The Influencer agrees to do such acts and execute such documents as Social Chain may reasonably require to vest in or confirm to Social Chain or (as appropriate) its successors in title and licensees the copyright and all other rights assigned or granted or purported to be assigned or granted by the Influencer to Social Chain under this Agreement.
7. GRANT OF LICENSE TO THE DELIVERABLES
7.1 Where Social Chain is granted a licence to the Deliverable(s), Influencer hereby grants to each of Social Chain and Client an exclusive, fully paid-up and royalty-free, freely sublicensable, and transferable right and licence for the usage specified in the Term Sheet to:
7.1.1 use the Deliverable(s) on or in the Media during the relevant Usage Term(s) specified in the Term Sheet in the Territory for the purpose of publicizing, promoting and marketing the Campaign;
7.1.2 use and store the Deliverable(s) for Social Chain’s and Client’s internal portfolio, archival or reference purposes, business to business promotion, and use at trade and industry conferences in perpetuity.
7.2 Influencer agrees that after the expiry of the relevant Usage Term, the Client shall not be permitted to repost or reuse the Deliverable(s) but shall not be required to remove or delete the published Deliverable(s).
7.3 Without limiting the generality of the foregoing, Influencer agrees that the rights granted in clause 7.1 includes the rights to modify, edit, combine with other materials, and create derivative works and adaptations of the Deliverable(s) and to reproduce, display, publish and transmit the original Deliverable(s), or as modified, in whole or in part.
7.4 Influencer hereby grants to Social Chain a non-exclusive, fully paid-up and royalty-free, freely sublicensable, and transferable right and licence to use the Influencer Brand solely as featured in the Deliverable(s) on or in the Media during the Usage Term, in the Territory for the purpose of publicizing, promoting and marketing Influencer’s involvement in the Campaign.
7.5 Influencer shall own and retain all right, title and interest in and to the Deliverable(s), subject to the license granted in Clause 7.1. Notwithstanding the foregoing, Influencer agrees, for the duration of the Usage Term and thereafter:
7.5.1 to solely use the final approved version of the Deliverable(s) on or in Influencer’s personal website(s), social media account(s) or personal portfolio for the sole purpose of promoting his own business and reputation;
7.5.2 not to exploit the Deliverable(s) commercially or license the Deliverable(s) to a third party other than the Client.
7.6 Influencer hereby irrevocably waives, to the extent permitted by applicable law, all rights to be identified as the author of the Deliverables and all rights to object to derogatory treatment of the Deliverables to which the Influencer may now or at any future time be entitled under the Copyright, Designs and Patents Act 1988 as amended from time to time and under all similar legislation from time to time in force anywhere in the world.
7.7 The terms and obligations imposed by this Clause 7 shall survive the termination or expiry of this Agreement.
8. CONFIDENTIALITY.
8.1 During the term of this Agreement and for a period of 5 (five) years from the date of disclosure of the Confidential Information, Influencer and the Agent, if applicable, shall:
8.1.1 hold and maintain the Confidential Information in strictest confidence;
8.1.2 not, directly or indirectly, disclose, disseminate nor make such Confidential Information available to any third party (excluding Influencer’s agents or representatives);
8.1.3 not use such Confidential Information for any purpose other than for the provision of the Services in accordance with the terms of the Agreement.
8.2 The obligations in Clause 8.1 shall not apply to information that:
8.2.1 is or becomes publicly known other than through any act or omission of the Influencer;
8.2.2 was in Influencer’s lawful possession before the disclosure and not subject to any obligation of confidence;
8.2.3 is lawfully disclosed to Influencer by a third party without restriction on disclosure;
8.2.4 is independently developed by Influencer, as shown by written evidence;
8.2.5 is required to be disclosed by law, by any court of competent jurisdiction or by any competent regulatory or administrative body.
8.3 The terms of this Clause 8 shall survive the termination or expiry of this Agreement.
9. WARRANTIES
9.1 Influencer represents, warrants and undertakes that:
9.1.1 the Content Idea(s) and Deliverable(s) save to the extent that they incorporate material made available to the Influencer by Social Chain or Client, will either be wholly original to the Influencer or if they contain Third Party Materials, Influencer has obtained all necessary rights, permissions, licences and consents (including, but not limited to, releases for voices, images and appearances, with regard to all video, audio, photograph, graphics, illustration or other multimedia content) in any such Third Party Materials and is solely responsible for all and any royalties and residual payments that may fall due for such rights, permissions, licences and consents.
9.1.2 the Content Idea(s) and the Deliverable(s):
(a) are accurate, truthful and complete in all material respects;
(b) have not been, prior to Influencer’s publication to the Platform(s) on the Publication Date(s), published or made publicly available;
(c) do not, and their use by Social Chain or the Client (or its authorized third parties) shall not, infringe or otherwise violate any rights of any third party, including any Intellectual Property Rights or any right of publicity or privacy;
(d) shall not (i) (including by way of inflection or gesture or otherwise) contain any material which is defamatory in nature; (ii) breach any contract or duty of confidence; (iii) subject Social Chain or Client to criminal or civil proceedings; or (iv) incorporate any matter which constitutes contempt of court;
(e) shall comply with all Applicable Laws.
9.1.3 Influencer is eighteen (18) years in age or over and has full power and authority to enter into this Agreement and to perform the obligations and grant the rights set forth herein;
9.1.4 Influencer has no pre-existing contractual commitment or exclusivity which could prevent or hinder their ability to enter into and fully perform their obligations under this Agreement;
9.1.5 Influencer has a genuine social media following on the Platform(s) as represented to Social Chain and that Influencer has not purchased or otherwise procured fake followers or bots or in any way inflated engagement figures associated with those Platform(s);
9.1.6 Influencer shall only subcontract to third parties with a first-class reputation within the industry, subject to the prior written approval of Social Chain in relation to scope of subcontracting and the identity of the sub-contractor;
9.1.7 Influencer shall comply with all Applicable Laws and Social Chain’s instructions (written, oral or otherwise) in the performance of its obligations.
9.1.7 Influencer shall comply with all Applicable Laws and Social Chain’s instructions (written, oral or otherwise) in the performance of its obligations.
9.2 Social Chain represents and warrants that:
9.2.1 it has full power and authority to enter into and perform this Agreement;
9.2.2 it has no pre-existing contractual commitment or exclusivity which could prevent or hinder its ability to enter into and fully perform its obligations under this Agreement;
9.2.3 it shall comply with all Applicable Laws in the performance of its obligations.
9.2.4 If Agent enters into this Agreement on behalf of an Influencer, the Agent represents and warrants that:
9.2.5 it has full power and authority to enter into and perform this Agreement on behalf of the Influencer and procure that the Influencer perform the obligations and grant the rights to Social Chain and the Client included in the Agreement;
9.2.6 it has no pre-existing contractual commitment or exclusivity which could prevent or hinder its ability to enter into and fully perform its obligations under this Agreement;
9.2.7 it shall comply with all Applicable Laws and Social Chain’s instructions (written, oral or otherwise) in the performance of its obligations.
10. NON-DISPARAGMENT.
10.1 Influencer shall inform Social Chain of all names, nicknames, aliases and pseudonyms that Influencer at any time has been or may be known by, including all previous names on all social media platforms and otherwise no later than one (1) week after the signature of this Agreement.
10.2 Each of Influencer and Agent, if applicable, represents and warrants that they have not prior to the date of this Agreement made any statement, orally or in writing, publicly or privately (including, without limitation, directly or indirectly, publishing, or permitting anyone to publish, on Influencer’s social media account(s) or website(s) that Influencer controls or owns); endorsed any statements (including but not limited to liking or following third party pages and reposting or commenting on third party posts) or any other material; or done any act or otherwise conducted themselves in such a manner as will or may, in the sole opinion of the Client or Social Chain, disparage, bring into disrepute, scandal, embarrassment or ridicule or otherwise reflect unfavourably upon or adversely affect the good name, goodwill, reputation, business or image of the Client, Brand, Social Chain, Client’s products or customer-base or the Campaign or breach the Company’s code of conduct or their client’s codes of conduct in place from time to time (copies available upon request).
10.3 During the Term of this Agreement and thereafter, Influencer and Agent, if applicable, shall not make any statement, orally or in writing, publicly or privately (including, without limitation, directly or indirectly, publish or permit anyone to publish on Influencer’s social media account(s) or website(s) that Influencer controls or owns); endorse any statements (including but not limited to liking or following third party pages and reposting or commenting on third party posts) or any other material; or do any act or otherwise conduct itself in such a manner as will or may, in the sole opinion of the Client or Social Chain, disparage, bring into disrepute, scandal, embarrassment or ridicule or otherwise reflect unfavourably upon or adversely affect the good name, goodwill, reputation, business or image of the Client, Brand, Social Chain, Client’s products or customer-base or the Campaign or breach the Company’s code of conduct or their client’s codes of conduct in place from time to time (copies available upon request).
10.4 Influencer shall not make any false, misleading or deceptive statements about the Client or its products. Influencer shall not make product performance or attribute claims about Client’s products without prior written approval of Social Chain.
10.5 If Influencer or Agent, if applicable, discovers or becomes aware of any statements, material or conduct referred to in Clauses 10.2, 10.3 or 10.4, Influencer or Agent, if applicable:
10.5.1 shall immediately notify Social Chain of the existence of such statements, material or other form of evidence in writing;
10.5.2 take such remedial action in respect of such statements, material or conduct as required by Social Chain.
10.6 Breach of Clauses 10.2, 10.3 or 10.4 shall constitute a material breach of this Agreement that is not capable of remedy.
10.7 The terms and obligations imposed by Clause 10 shall survive the termination or expiry of this Agreement.
11. LIABILITY AND INDEMNITY.
11.1 The Influencer shall indemnify and keep indemnified Social Chain and its Affiliates and/or the Client and its Affiliates in full against all costs, claims, liabilities, demands, damages expenses, and losses (whether direct or indirect), including interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by Social Chain and/or its Affiliates, or the Client and/or its Affiliates arising out of or in connection with any and all claims brought by any third-party relating to any aspect of the Services or any breach by Influencer (or Agent if applicable) of their representations, warranties or other obligations under this Agreement, including, but without limitation, any such claims arising out of any claim that any materials, information, data, images or links supplied by the Influencer or the receipt, use or supply of the Services and/or Deliverables, infringes any third party Intellectual Property Rights and/or breaches the confidentiality rights of any third party and/or breaches any provision of any statute, regulation or guidance relating to data protection, data security or privacy.
11.2 Subject to Clause 11.3, Social Chain shall not be liable to the Influencer or to the Agent, if applicable, whether in contract, tort, debt or otherwise, for:
11.2.1 for any loss of profits, loss or corruption of data or loss of business, loss of anticipated savings, depletion of goodwill (in each case whether direct or indirect);
11.2.2 any indirect or consequential loss of any nature.
11.3 Nothing in this Agreement shall limit either party’s liability for death or personal injury caused by its negligence or losses arising as a result of fraud or any other matter which cannot be limited or excluded by law.
11.4 Subject to Clauses 11.2 and 11.3, Social Chain’s maximum aggregate liability under this Agreement to the Influencer and/or to the Agent, where applicable, whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Fees paid.
11.5 This Agreement sets out the full extent of each party’s obligations and liabilities in respect of the supply of the Services. All other conditions, warranties or other terms concerning the Services which might otherwise be implied into this Agreement or any collateral contract (whether by statute or otherwise) are expressly excluded
11.6 The terms of this Clause 11 shall survive the termination or expiry of this Agreement.
12. 12. TERM AND TERMINATION.
12.1 The Agreement shall continue until the expiry of the Usage Term.
12.2 Social Chain may terminate this Agreement with immediate effect on 1 (one) Business Day’s notice for convenience or if the Influencer
12.2.1 fails to produce the Deliverables in accordance with the Influencer Brief;
12.2.2 fails to deliver any Deliverables on the Delivery Dates;
12.2.3 fails to obtain Social Chain’s approval before publishing the Deliverables;
12.2.4 fails to publish the Deliverables on the Publication Dates;
12.2.5 fails to maintain the Deliverables on the Platforms for the amount of time specified in the Term Sheet;
12.2.6 breaches Clauses 10.2, 10.3 or 10.4 or breaches any of the warranties set out in the Agreement.
12.3 The Agreement may be terminated at any time with immediate effect, by the party not in default, if:
12.3.1 the other party (being a company) goes into liquidation or makes any arrangement or composition with its creditors or is otherwise unable to pay its debts within the meaning of Section 123 Insolvency Act 1986 (as may be amended) or the other party (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986;
12.3.2 if the other party commits any material breach of the terms of the Agreement, and such breach (where capable of remedy) is not rectified to the reasonable discretion of the other party, within 5 *five) Business Days’ notice of such breach.
12.4 On termination of this Agreement for any reason Influencer shall immediately deliver to, or dispose of, as directed by Social Chain:
12.4.1 any and all materials and property belonging to or relating to Social Chain and the Client (including, without limitation, SC Campaign Materials, Client Materials, Influencer Brief, and all Confidential Information;)
12.4.2 all completed or partially completed Content Ideas or Deliverables.
12.5 In the event of termination of this Agreement (except pursuant to Clause 12.2 or for material breach), and where tangible work has already been done by the Influencer (provided it was signed off and approved by Social Chain or the Client per this Agreement), Social Chain shall pay the Fee with respect to the work done by Influencer on the Services and the Deliverables up to the date of termination, calculated on a pro-rata basis.
12.6 In the event of termination of this Agreement pursuant to Clause 12.2 or for material breach:
12.6.1 where Influencer has not produced any Content Ideas or Deliverables, no Fees are due to Influencer;
12.6.2 where Influencer has produced at least one Content Idea or Deliverable, Social Chain shall pay to Influencer (or Agent) a pro-rata proportion of the Fees, but no more than 10% of the Fee.
12.6.3 Influencer (or Agent) shall repay to Social Chain any amounts in excess of the amounts due under this Clause 12.6 if any such amount has already been paid to the Influencer prior to the effective date of termination.
12.7 Any provision of this Agreement expressly or by implication intended to survive or operate in the event of the termination of this Agreement shall survive such termination.
12.8 The termination of this Agreement shall be without prejudice to the rights of each party against the other in respect of any breach of this Agreement prior to the termination.
13. GENERAL
13.1 Any notice given under the Agreement by either party to the other must be in writing and may be delivered personally, by email, by courier or by first-class post and will be deemed to have been received in the case of personal or courier delivery on signature of a delivery receipt, in the case of delivery by email at the time of transmission and in the case of delivery by post 2 (two) Business Days after the date of posting. Notices will be delivered or sent to the addresses or email addresses of the parties stated on the Term Sheet or to any other address or email address notified in writing by either party to the other for the purpose of receiving notices.
13.2 Neither Influencer, the Agent, if applicable, or Social Chain will be liable to the other party for any delay in or failure to perform its obligations (other than a payment of money for any Services provided) as a result of any cause beyond its reasonable control, including but not limited to any industrial dispute (“Force Majeure Event”). The party affected by the Force Majeure Event shall immediately inform the other party of the Force Majeure Event, without undue delay. If such delay or failure continues for at least 10 days, Social Chain can immediately terminate the Agreement on written notice to the Influencer, or Agent, if applicable.
13.3 Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
13.4 The Agreement contains the entire agreement between the Parties and supersedes any and all prior agreements or understandings, written or oral, between the Parties related to the subject matter of the Agreement. Each party acknowledges it has not relied on any statement, representation, recommendation or advice given by the other (including its staff, agents or contractors) which is not set out specifically in the Agreement.
13.5 The Agreement may only be amended by a document signed by both parties.
13.6 This Agreement is personal to Influencer. Influencer or Agent, if applicable, shall not assign or otherwise transfer any of its obligations or performance, under this Agreement. Any purported assignment, delegation or transfer in violation of this Clause 13.6 is void. Social Chain may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance under this Agreement. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
13.7 Any Affiliate or Client of Social Chain may enforce the terms of this Agreement against the Influencer. Except as set out in this Clause 13.7, the Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
13.8 The Influencer shall comply with the Bribery Act 2010 and not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK.
13.9 The rights of each party under the Agreement are cumulative and do not exclude rights provided by law and may only be waived in writing and when signed by an authorised representative and any delay in exercising or non-exercise of any right is not a waiver of that right.
13.10 Neither party shall make or permit any person to make any public announcement concerning the Agreement without the prior written agreement of the other party, such consent not to be unreasonably withheld or delayed.
13.11 The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation are governed by, and construed in accordance with, the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation including those of a non-contractual nature.
