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These Influencer Terms and Conditions (the "Terms") govern any insertion order (an "IO") which contains a direct reference to them and entered into by the persons listed in the IO as "Customer" and "Provider" (each IO, together with these Terms, the "Agreement").
For the purposes of the Terms, a person or legal entity that is not a party to an IO but is controlling, controlled by or under common control with, or otherwise affiliated with the Customer, shall have the same rights under the Agreement as the Customer.
1.1. In this Agreement terms shall be interpreted in the following way:
1.1.1. "Campaign" means promotion of products and services specified by the Customer, by Influencers (as defined below) via agreed social networks in accordance with the performance indicators described in an IO.
1.1.2. "Content" means any kind of creative materials used by the Influencers (as defined below) for promotion of products and services specified by the Customer.
1.1.3. "Influencer" means a person designated or engaged by the Provider that publicizes or transmits any advertising message including but not limited to verbal statements, visual demonstrations, or textual depictions promoting products and services specified by the Customer.
1.1.4. "Relevant Laws and Regulations" means laws and regulations of any jurisdictions/states, where the Parties conduct their business activities or have any kind of corporate presence, as well as those that are included into targeting geography of the Campaign.
2.1. Pursuant to the Agreement, the Provider agrees to provide Influencers` procurement and management to support the Campaign.
2.2. The Provider shall be responsible for contracting with the Influencer, managing the Influencer's performance, and payment for the Influencer in accordance with this Agreement and with applicable laws and regulations.
2.3. For all the Content created by the Provider, the Provider shall undertake commercially reasonable efforts to perform the services under the Agreement.
2.2. The Customer agrees to pay all fees and expenses the Provider according to the schedule, payment and other terms of the Campaign outlined in an IO.
3.1. Unless otherwise specified in an IO, the Provider and/or Influencers shall develop the Content for the Customer.
3.2. The Provider shall provide the Customer with the opportunity to provide input and feedback on an initial draft of all Content. The Customer shall review the Content within a reasonable time based on the Campaign timeline and either approve and accept the Content by written notice or provide written comments, changes or corrections that clearly identify the Customer`s reservations. The Provider shall implement those comments, changes or corrections in a timely manner based on the Campaign timeline.
3.3. The Provider and the Influencers shall not modify the Content after the respective changes or corrections without the Customer's approval. If the Content is modified after the Customer`s approval, either initial or repetitive, and such modifications violate the Relevant Laws and Regulations, or the requirements listed in Schedule A to this Agreement, the Customer reserves the right to terminate the Agreement
The Provider hereby agrees to cooperate to the fullest extent reasonably possible in case any claims are brought against the Customer regarding violation of marketing compliance rules (regardless of jurisdiction, where such claims may be brought).
3.4. The Customer may post and share the Influencers Content on their social media profiles. The Customer shall not use the Influencers` Content for commercial purposes, including but not limited to billboards, TV commercials, unless a media release for the Content is in place with the Influencer.
3.5. The Provider hereby agrees to adhere to, and procure in writing adherence by the Influencers to, the Customer`s compliance policies and programs. The Customer`s compliance policies and programs shall be considered fully incorporated part hereof as Appendices.
The Content developed by the Provider or any Influencer shall comply with the requirements listed in Schedule A to this Agreement, as well as the Customer`s compliance policies and programs.
3.6. The Customer properties, including but not limited to any and all pre-existing trademarks and copyright material, shall remain the sole property of the Customer and the Customer shall be the sole owner of those rights in connection therewith. The Customer grants to Provider a nonexclusive, nontransferable license to use, reproduce, and modify the Customer properties solely in connection with Provider's performance of the services under this Agreement and to the extent allowable by the Relevant Laws and Regulations.
3.7. Third-party materials used for creation of the Content under this Agreement, if any, are the exclusive property of their respective owners. The Provider shall promptly notify the Customer of any third-party materials required to perform the services under the conditions specified in an IO. Should this occur, the Provider shall inform the Customer of any need to license.
4.1. "Confidential Information" shall include:
(i) this Agreement, including the fact of its existence, its terms and the amounts paid or payable hereunder;
(ii) information regarding or related to the Party, its business and partners, including information disclosed by the Party`s employee, officer or consultant (whether before or after the date of an IO);
(iii) information received, developed, created or modified by the Parties during the Campaign;
(iv) information that may give the Parties a competitive advantage over others who do not have access to this information; and
(v) information marked as confidential or would normally under the circumstances be considered confidential information.
4.2. The Parties shall not make use of, disclose or divulge any Confidential Information to any person, or make any Confidential Information public or available or accessible to any person for any purpose other than those provided for under the Agreement.
4.3. Upon request by the Party, the other Party shall:
(i) return to the requesting Party all Confidential Information, in any form or media, and all copies thereof; and
(ii) delete all Confidential Information from any computers, electronic memory devices, and all other storage, including portable USB storage devices and cell phones that may be used by that Party.
4.4. The Provider shall not and shall ensure that its employees, agents, affiliates and any other related parties shall not, without the Customer's prior written consent, use any name, trademarks or any variation, adaptation, or abbreviation thereof (alone or as part of another name) or any logos, seals, insignia or other words, names, symbols or devices that identify the Provider, services and/or websites included into the Campaign for any purpose except with the prior written approval of, and in accordance with restrictions required by, the Customer.
5.1. Each Party represents and warrants to the other that:
(i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction/state in which the business is organized;
(ii) it is not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including the lists maintained by the United Nations Security Council and national authorities in the jurisdictions/states, where the Parties conduct their business activities or have any kind of corporate presence, as well as those that are included into targeting geography of the Campaign;
(iii) it has the right, power, and authority (corporate or otherwise) to execute, deliver, perform, and carry out all its actions contemplated by this Agreement; and
(iv) its obligations will be performed in compliance with the Relevant Laws and Regulations.
5.2. The Customer further represents, warrants and covenants to the Provider that:
(i) the information about the Provider`s company and the Influencers collected by the Customer shall be used only for compliance issues of the Customer and not disclosed to any third parties, unless otherwise required by the Relevant Laws and Regulations;
(ii) the Customer shall provide all necessary information about the Campaign in due and timely manner to the Provider;
(iii) the Customer shall provide all due payments to the Provider;
(iv) the Customer`s compliance policies and programs adopted in accordance with this Agreement shall be available to the Provider anytime or upon request; and
(v) the Customer shall not introduce any changes into the respective compliance policies and programs without prior notification to the Provider within reasonable time, taking into account details of the Campaign and other factors that may affect the Provider`s performance under this Agreement.
5.3. The Provider further represents, warrants and covenants to the Customer that:
(i) Content provided by the Provider and the Influencers comply with the requirements to the Content listed in Schedule A to this Agreement and the Customer`s compliance policies and programs;
(ii) the Provider shall provide a reasonable confirmation of compliance with the Relevant Laws and Regulations and the requirements listed in Schedule A to this Agreement, as well as the Customer`s compliance policies and programs upon the Customer's request;
(iii) the Provider shall contractually procure compliance of the Influencers with the Relevant Laws and Regulations;
(iv) the Provider shall immediately notify the Customer if it has any reason to believe that any violation of the requirements set out in Schedule A to this Agreement, as well as the Customer`s compliance policies and programs.
6.1. The Customer shall defend, indemnify and hold the Provider harmless from any and all liability, loss, damage, fees, debts, costs, expenses, claim, or cause of action, threatened or adjudicated, including, without limitation reasonable legal fees and expenses, settlement costs and disbursements arising out of or related to any breach by the Customer of any obligations contained in this Agreement. The indemnity in this Section 6.1 shall be conditional upon the Provider duly discharging its obligations under the Agreement, unless otherwise agreed between the Parties.
6.2. The Provider shall defend, indemnify and hold the Customer harmless from any and all liability, loss, damage, fees, debts, costs, expenses, claim, or cause of action, threatened or adjudicated, including, without limitation reasonable legal fees and expenses, settlement costs and disbursements arising out of or related to (i) any breach by the Provider or the Influencers of any obligations contained in this Agreement; (ii) the authorized use of the Content, and (iii) Provider's negligence or willful misconduct. The indemnity in this Section 6.2 shall be conditional upon the Customer duly discharging its obligations under the Agreement, unless otherwise agreed between the Parties.
7.1. Nothing in the Agreement shall exclude or limit either party's liability: (i) for death or personal injury resulting from the negligence of either party or their servants, agents or employees; (ii) for fraud or fraudulent misrepresentation; (iii) for payment of sums properly due and owing to the other in the course of normal performance of the Agreement without any violations by the Parties; (iv) for any other liability that may not otherwise lawfully be excluded or limited; or (v) claims subject to indemnification.
7.2. Subject to Section 7.1 above, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise)) for any: (i) loss of profit; (ii) loss of anticipated savings; (iii) loss of business opportunity; or (iv) indirect or consequential losses, suffered or incurred by the other party (even if the Party is aware or should know that such other types of damages are possible and even if direct damages do not satisfy a remedy).
8.1. The Provider hereby agrees to provide necessary information to the Customer to verify the identity, suitability, and risks involved with maintaining a business relationship with the Provider, including collection of copies of official or corporate documents and other details about the Provider`s company.
8.2. The Provider shall not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Customer's prior written approval will be null and void. The Customer shall be entitled, at any time, to assign this Agreement to any third party without notice to the Provider. All terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
8.3. It is the intention of the Parties to agree to these Terms by execution of an IO. All IOs and these Terms constitute the entire agreement of the parties with respect to its subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Agreement.
8.4. The Agreement shall be governed by the laws of England and Wales without regard to the conflict of laws provisions. The Parties agree that all disputes, disagreements or claims arising under this Agreement or in connection with them, including regarding their acceptance, entry into force, interpretation, execution, violation, termination or invalidity, shall be subject to resolution in the Cyprus-Eurasian Center for Dispute Resolution and Arbitration (CEDRAC) in accordance with its CEDRAC Arbitration Rules. The place of arbitration in the case provided for in this provision is Nicosia, Cyprus.
8.5. These Terms may be modified by the Customer at its sole discretion subject to the Customer giving the Provider a written email notice at least forty-eight (48) hours prior to the modifications are in effect. Modifications to an IO shall not be made by a Party unilaterally in any case.
8.6. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
8.7. All notices, requests, demands, and other communications hereunder will be in writing and will be deemed given at the time such communication is sent by registered or certified mail, or recognized national overnight courier service, or delivered personally, or sent via email or received via confirmed facsimile to the addresses of the Parties indicated in an IO.
8.8. The provisions of this Agreement which expressly or by their nature survive expiration or termination of this Agreement will remain in effect after the expiration or termination of this Agreement. The obligations set forth in Sections 4 and 6 shall survive the termination of this Agreement and shall be effective for so long as it is necessary and reasonable, but not less than for three (3) years from the date of termination of the Agreement.
8.9. Schedule A: Requirements to the Content shall be integral part of the Terms.
