Influencer Agreement - Template, Sample Form Pro · AU-law

INFLUENCER MARKETING AGREEMENT

THIS AGREEMENT IS DATED: ________

BETWEEN THE INFLUENCER ("Influencer"):

________ (ABN/ACN ________)

Address: ________

Email: ________

AND THE ADVERTISER ("Advertiser"):

________ (ABN/ACN ________)

Address: ________

Email: ________

RECITALS

A. The parties may be referred to individually as a "Party" and collectively as the "Parties".

B. The Advertiser carries on a business that involves the marketing, promotion and sale of certain products.

C. The Influencer operates one or more social media accounts and has a following that the Advertiser considers valuable for the advertising and sale of such products.

D. The Parties wish to enter into this Agreement on the terms set out below, whereby the Influencer will promote and assist in the sale of the Advertiser's products.

E. In consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration (the receipt and sufficiency of which is acknowledged), the Parties agree as follows.

(1) AGREEMENT

(a) The Influencer agrees to promote and assist in the sale of the Advertiser's products (the "Products") on the Influencer's social media accounts and platforms (the "Platforms"), described further below:

________

(b) The Platforms on which the Influencer will publish content under this Agreement are:

________

(c) The Influencer agrees to the promotion and sale of the Products in exchange for the Fees described in clause 3.

(d) Nothing in this Agreement constitutes a relationship of employment, partnership, joint venture or agency between the Parties. The Influencer is engaged as an independent contractor and is solely responsible for the Influencer's own taxation obligations, including income tax and GST (where applicable) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth), and any superannuation and insurance obligations.

(2) DELIVERABLES

(a) The Influencer will publish content (each a "Post") as part of the following campaign (the "Campaign"):

________

(b) The Campaign will commence on ________ and will end on ________.

(c) The Advertiser and the Influencer have agreed that the Influencer will publish one or more Posts on the Platforms as follows:

________

(d) Each Post must be approved by the Advertiser in writing before going live.

(e) Once a Post has been approved by the Advertiser, it must be published by the Influencer as soon as reasonably practicable and no later than forty-eight (48) hours from the approval time.

(f) Posts must remain published for the following period: ________.

(g) The Influencer must not edit a Post after it has been approved, except with the Advertiser's prior written consent.

(h) The Advertiser may moderate a Post after it has been approved and may direct the Influencer to amend the Post at any time.

(i) The Advertiser may direct the Influencer to remove a Post at any time.

(j) After publishing a Post, the Influencer must not publish any other content which has the effect of reducing the impact, reach or effectiveness of the Post.

(3) FEES

The Advertiser will pay fees to the Influencer for the promotion and sale of the Advertiser's Products (the "Fees"), as follows:

(a) For the promotion of the Advertiser's Products:

(I) The Advertiser will pay one flat fee of $________ (________), exclusive of GST (if applicable).

(b) For the sale by the Influencer of any of the Advertiser's Products:

(I) The Advertiser will provide the Influencer with a specific link or links which correspond to the Products for sale, or a promotional code or codes for the Influencer's audience to purchase (collectively, the "Link").

(II) The Link will be keyed to the Influencer's identity and will direct online users to the Advertiser's website or websites.

(III) Each time a customer clicks through the Link and completes the sale of one of the Advertiser's Products, the Influencer will be eligible to receive the following percentage of the sale value: ________% (________ percent).

(c) Where the Influencer is registered for GST, the Fees are exclusive of GST and the Advertiser will pay the applicable GST upon receipt of a valid tax invoice.

(4) PAYMENT

(a) The Influencer will provide current address information together with accounting, banking and taxation documentation reasonably required by the Advertiser.

(b) The Influencer must notify the Advertiser immediately of any change to its address or account information.

(c) The Influencer will be paid as follows:

________

(5) COMPLIMENTARY PRODUCTS

(a) The Advertiser will provide the Influencer with the following complimentary products to assist in the Influencer's promotion:

________

(b) The Influencer will promote these products to the Influencer's audience and must disclose any complimentary product received in accordance with clause 8.

(6) TRIP

(a) In connection with this Agreement, the Influencer will also take part in the following trip (the "Trip"):

________

(b) The Advertiser will pay the Influencer's reasonable costs in relation to the following parts of the Trip:

________

(c) The Influencer will pay all other costs in relation to the Trip, including but not limited to:

________

(d) The Influencer will promote the Trip to the Influencer's audience and must disclose the Trip in accordance with clause 8.

(7) CONFIDENTIALITY

(a) During the term of this Agreement and at all times thereafter, the Influencer agrees to keep confidential and not to disclose to any third party any confidential information of the Advertiser, including but not limited to business plans, marketing strategies, pricing, customer information, trade secrets and the terms of this Agreement, except as required by law or with the prior written consent of the Advertiser.

(b) The Influencer agrees to use such confidential information solely for the purpose of performing the Influencer's obligations under this Agreement.

(c) To the extent the Influencer collects, uses or discloses any personal information in connection with this Agreement, the Influencer must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles.

(d) This clause survives the termination or expiration of this Agreement.

(8) INFLUENCER WARRANTIES

(a) The Influencer warrants that any representations the Influencer has made or will make to the Advertiser regarding the number of followers, the size of the Influencer's audience or the Influencer's social media reach are accurate and honest and refer to genuine organic followers.

(b) The Influencer warrants and agrees that the Influencer has not obtained, and will not obtain, followers or audience members by any artificial means, including by purchasing followers, likes or engagement, or by otherwise artificially increasing engagement.

(c) If the Advertiser determines, acting reasonably, that the Influencer is in breach of this clause, the Advertiser may immediately terminate this Agreement.

(d) The Influencer warrants and agrees that it will comply with all applicable laws, regulations and industry self-regulation in each jurisdiction in which the Influencer promotes and sells the Advertiser's Products, including but not limited to:

(I) the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth), and any other applicable Commonwealth, State or Territory laws of Australia;

(II) the AANA Code of Ethics and the AANA Influencer Marketing Guidance administered by the Australian Association of National Advertisers and Ad Standards;

(III) the Australian Influencer Marketing Council (AiMCO) Influencer Marketing Code of Practice; and

(IV) any further applicable laws, regulations or codes specified below: ________.

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(f) The Influencer warrants and agrees that all Posts published under this Agreement will comply with the applicable terms and conditions of the Platforms on which the Posts are published.

(g) The Influencer warrants and represents that all Posts published under this Agreement (excluding any intellectual property provided by the Advertiser) will be the Influencer's original work and will not infringe the rights of any third party, including intellectual property rights.

(h) The Influencer warrants and represents that no Post published under this Agreement will contain material which is offensive, obscene, indecent, defamatory, discriminatory or which promotes violence, aggression or illegal behaviour.

(i) The Influencer warrants and represents that no Post published under this Agreement will contain material which the Influencer knows or suspects (or ought reasonably to know or suspect) to be false, misleading or deceptive.

(j) The Influencer warrants and represents that no Post published under this Agreement will violate the rights of any other person or entity, including intellectual property rights, privacy rights or contractual rights.

(k) The Influencer warrants and agrees that it will take all reasonable steps to protect and uphold the goodwill and reputation of the Advertiser's business and brand.

(l) The Influencer warrants and agrees that it will not disparage, attack, parody or make any negative comments about the Advertiser's brand, business, products or services, whether during the term of this Agreement or after its termination or expiration.

(m) In the event of a breach of this clause by the Influencer, the Advertiser may immediately terminate this Agreement and, subject to any non-excludable rights under the Australian Consumer Law, the Influencer will forfeit any Fees for services not yet rendered.

(9) TERM & TERMINATION

(a) This Agreement terminates automatically when the Campaign has been completed (the "Termination Date").

(b) This Agreement may also be terminated by either Party upon notice in writing:

(I) if the other Party commits a material breach of any term of this Agreement that is not capable of being remedied, or that is capable of remedy but is not remedied within fourteen (14) days after a written request to do so; or

(II) if the other Party becomes unable to perform its obligations, including a duty to pay or a duty to perform, or becomes insolvent.

(c) The Advertiser may terminate this Agreement at any time, with or without cause, on written notice to the Influencer.

(d) The Advertiser specifically reserves the right to terminate this Agreement if the Influencer breaches any term of this Agreement, including by infringing the intellectual property rights of the Advertiser or a third party, failing to comply with applicable laws or other legal obligations, or publishing or distributing illegal material.

(e) If this Agreement is terminated prior to the Termination Date, the Advertiser will pay the Influencer all Fees earned but not yet paid prior to termination, unless the Influencer is in breach and the Advertiser terminates for that breach, in which case (subject to any non-excludable rights at law) the Influencer forfeits all rights, including the right to any unclaimed Fees.

(f) On termination of this Agreement, any provisions which by their nature would be expected to survive termination remain in full force and effect.

(10) EXCLUSIVITY

(a) During the term of this Agreement, the Influencer must not promote, advertise or sell the products or services of any competitor of the Advertiser. The competitors and/or competing product categories to which this restraint applies are: ________.

(b) This exclusivity obligation applies only for the term of this Agreement and is reasonable and necessary to protect the legitimate business interests of the Advertiser. Upon termination of this Agreement, the exclusivity obligation ceases.

(11) COMMUNICATION

The Influencer agrees to maintain open communication with the Advertiser, including promptly responding to calls, messages and emails. The Influencer must respond to all communications no later than forty-eight (48) hours after receipt.

(12) INDEMNITY

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(13) LIMITATION OF LIABILITY

(a) Nothing in this Agreement excludes, restricts or modifies any guarantee, right or remedy conferred on a Party by the Australian Consumer Law or any other law to the extent that it cannot lawfully be excluded, restricted or modified.

(b) Subject to clause 13(a), the Advertiser's total liability to the Influencer is at all times limited to the amount paid by the Advertiser to the Influencer in the twelve (12) months prior to the event giving rise to the liability.

(c) Subject to clause 13(a), the Advertiser is not liable to the Influencer or any third party for any injury, loss, costs, expenses, damages or other claims of any nature relating to the content of any Post.

(d) Subject to clause 13(a), the Advertiser is not liable to the Influencer or any third party for any loss of profits, reputation, goodwill or business, or for any indirect or consequential loss or damage.

(14) INTELLECTUAL PROPERTY

(a) Each Party agrees that any intellectual property, including copyright, trade marks, trade secrets, patents and other intellectual property belonging to a Party prior to or independently of this Agreement, remains owned by that Party. No transfer of ownership of intellectual property takes place under this Agreement.

(b) Subject to the limitations below, each Party grants the other a non-exclusive, non-transferable, revocable licence to use its intellectual property solely and exclusively in connection with this Agreement. Neither Party may modify the other Party's intellectual property in any way. Specifically, the Advertiser grants the Influencer a licence to use the following intellectual property of the Advertiser:

________

(c) The Influencer grants the Advertiser an ongoing, royalty-free, non-exclusive licence to reproduce, publish and use the Posts and any content created by the Influencer under this Agreement for the Advertiser's marketing and promotional purposes for the following period: ________.

(d) Either Party may revoke a licence granted under clause 14(b) at any time, including upon discovery of any misuse of intellectual property. Such licence terminates on the expiration of this Agreement.

(e) Unauthorised use of a Party's intellectual property constitutes unlawful infringement, and each Party reserves all rights, including the right to seek relief in any court of competent jurisdiction in Australia.

(15) DISPUTE RESOLUTION

(a) In the event of any dispute arising out of or in connection with this Agreement, the Parties agree first to attempt to resolve the dispute through good faith negotiations between themselves.

(b) A Party must not commence court proceedings in relation to a dispute arising under this Agreement until it has complied with the dispute resolution process in this clause, except where that Party seeks urgent interlocutory or injunctive relief.

(c) A Party claiming that a dispute has arisen must notify the other Party in writing, setting out the nature of the dispute.

(d) If the Parties are unable to resolve the dispute by negotiation within fourteen (14) days of the notice referred to above, the Parties agree to refer the dispute to mediation administered by a mediator agreed between the Parties.

(e) If the Parties cannot agree on a mediator, either Party may request that a mediator be appointed by the President of the Law Society of ________ or their nominee.

(f) The costs of any mediation shall be borne equally by the Parties, unless otherwise agreed. If the dispute is not resolved within thirty (30) days of the commencement of mediation, either Party may pursue any other remedy available to it at law.

(16) WRITTEN COMMUNICATION

In relation to any correspondence or notice required under this Agreement to be provided in writing from one Party to the other:

(a) such notice is properly given if given to the other Party:

(I) by email to an email address that the other Party has nominated, acknowledged or used in connection with this Agreement; or

(II) by mail to a mailing address the other Party has nominated, acknowledged or used in connection with this Agreement.

(b) such notice is taken to be received:

(I) if sent by email, when the email becomes capable of being retrieved by the recipient at the relevant email address;

(II) if sent by prepaid mail within Australia, five (5) business days after the date of posting;

(III) if sent by prepaid mail to or from an address outside Australia, twenty-one (21) days after the date of mailing.

(17) GENERAL PROVISIONS

(a) LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.

(b) GOVERNING LAW & JURISDICTION: This Agreement is governed by the laws of ________ and the Commonwealth of Australia, and each Party irrevocably submits to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from those courts.

(c) ASSIGNMENT: This Agreement, and the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

(d) ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties in relation to its subject matter and supersedes any prior or contemporaneous understandings, whether written or oral. Each Party agrees that, in entering into this Agreement, it did not rely on any representation, warranty or other provision except as expressly set out in this Agreement.

(e) AMENDMENTS: This Agreement may only be amended in writing signed by both Parties.

(f) RIGHTS, REMEDIES AND POWERS: Unless expressly provided in this Agreement, any rights, remedies or powers which a Party acquires under this Agreement are cumulative and apply in addition to any rights, remedies or powers which that Party may otherwise have.

(g) SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining parts and sub-parts will be enforced to the maximum extent possible, and the remainder of this Agreement continues in full force.

(h) NO WAIVER: A failure by any Party to enforce any provision of this Agreement does not constitute a waiver of any future enforcement of that provision or of any other provision. A waiver of any part or sub-part of this Agreement does not constitute a waiver of any other part or sub-part.

(i) HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organisation only and do not affect the meaning of any provision.

(j) FORCE MAJEURE: Neither Party is liable for any failure to perform due to causes beyond its reasonable control, including acts of God, acts of civil or military authorities, pandemics, riots, embargoes, natural disasters and other unforeseen circumstances.

(k) COUNTERPARTS: This Agreement may be executed in counterparts, including by electronic signature, all of which together constitute a single agreement. If the dates of execution differ, this Agreement is effective from the date both Parties have signed, being the later date.

(l) SURVIVAL OF OBLIGATIONS: On the termination, expiration or completion of this Agreement, any provisions which by their nature would be expected to survive remain in full force and effect, including any provisions which expressly state that they survive termination or expiration.

EXECUTED AS AN AGREEMENT

Signed for and on behalf of the Influencer ________ in accordance with section 127(1) of the Corporations Act 2001 (Cth) by being signed by the sole director and sole company secretary:

..................................................

________, Sole Director and Sole Company Secretary

Date: ________

Signed for and on behalf of the Advertiser ________ in accordance with section 127(1) of the Corporations Act 2001 (Cth) by being signed by the sole director and sole company secretary:

..................................................

________, Sole Director and Sole Company Secretary

Date: ________