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

INFLUENCER AGREEMENT

THIS INFLUENCER AGREEMENT (this "Agreement") is made and entered into as of ________ (the "Effective Date")

BETWEEN

________, of ________ (hereinafter referred to as the "Advertiser", which expression shall, where the context so admits, include its successors-in-title and permitted assigns) of the one part;

AND

________, of ________ (hereinafter referred to as the "Influencer", which expression shall, where the context so admits, include their successors-in-title and permitted assigns) of the other part.

The Advertiser and the Influencer may each be referred to individually as a "Party" and collectively as the "Parties".

BACKGROUND

A. The Advertiser carries on the business of producing, marketing and/or distributing the products particularly described in this Agreement (the "Products") and acknowledges that social media and digital platforms are efficient tools for advertising its Products, and desires that the Influencer promotes the Products using social media and/or other digital platforms.

B. The Influencer holds itself out as having the requisite reach, skill and following to promote the Products and desires to enter into this Agreement to promote and market the Advertiser's Products on the terms set out herein.

NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties hereby agree as follows:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context otherwise requires, the following expressions shall have the meanings set out below:

(a) "Brand Affiliates" means the Advertiser's partners, subsidiary, parent or holding company, and any other group of companies or businesses connected or associated with the Advertiser's brand or business.

(b) "Brand Guidelines" means the written specifications, instructions, rules and standards issued by the Advertiser from time to time governing the manner of promotion of the Products and the use of the Brand's Intellectual Property.

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(d) "Content" means all written posts, captions, images, videos, audio and other materials formulated or created by the Advertiser or the Influencer for the promotion of the Products.

(e) "Intellectual Property Rights" means all collective rights subsisting in any images, logos, videos, designs, patterns, copyrights, inventions or any Content created by the Influencer in the course of their engagement with the Advertiser under this Agreement.

(f) "Material Connection" means the contractual relationship between the Influencer and the Advertiser or the Advertiser's brand, by virtue of which the Influencer acts as the Advertiser's independent contractor.

(g) "Personal Data" has the meaning ascribed to it under the Nigeria Data Protection Act 2023.

(h) "Products" means the products and/or services of the Advertiser described in §2.

1.2 Words importing the singular include the plural and vice versa, and words importing one gender include all genders.

1.3 References to any statute or statutory provision include that statute or provision as amended, re-enacted or replaced from time to time and any subsidiary legislation made thereunder.

1.4 Clause headings are inserted for convenience only and shall not affect the interpretation of this Agreement.

2. ENGAGEMENT AND SCOPE

2.1 The Advertiser hereby engages the Influencer, and the Influencer hereby agrees, to promote and market the following Products in exchange for the compensation described in this Agreement:

________

2.2 The Influencer shall promote the Products in accordance with the Brand Guidelines and the lawful instructions of the Advertiser and the detailed scope of work set out in the Schedule to this Agreement.

3. INDEPENDENT CONTRACTOR

3.1 The Influencer is engaged to provide the services described in this Agreement as an independent contractor. Nothing in this Agreement shall be construed to create any employment relationship, partnership, agency, joint venture or any relationship other than that of independent contractor between the Parties.

3.2 As an independent contractor:

(a) the Influencer shall control the manner and means by which the services are performed, subject to the Brand Guidelines;

(b) the Influencer shall be solely responsible for the assessment, deduction and remittance of all taxes due on the fees payable hereunder, including personal income tax under the Personal Income Tax Act, Cap P8, Laws of the Federation of Nigeria 2004 (as amended) and value added tax under the Value Added Tax Act, Cap V1, Laws of the Federation of Nigeria 2004 (as amended), where applicable; and

(c) the Influencer shall not be entitled to any employment benefit, pension, gratuity or other entitlement reserved for employees.

4. EXCLUSIVITY

4.1 For the duration of this Agreement, the Influencer shall not act for any competing advertiser or promote any brand or product competing with the Products, without the prior written consent of the Advertiser.

4.2 Where the Influencer breaches §4.1, the Influencer shall pay to the Advertiser, as liquidated damages and as a genuine pre-estimate of loss, the sum of \u20a6________ (________).

4.3 The Advertiser shall not, during the term, engage any other influencer for the purpose of promoting or selling the Products that are the subject of this Agreement.

5. COMPENSATION

As full compensation for the promotion and marketing of the Products, the Advertiser shall pay the Influencer a flat fee of \u20a6________ (________), exclusive of any applicable taxes which shall be borne in accordance with §3.2.

6. PAYMENT TERMS

6.1 The Influencer shall issue an invoice for payment which shall state the Influencer's Tax Identification Number (TIN), a description of the services rendered, the fees and the payment details.

6.2 Payment shall be made into the following bank account of the Influencer: ________.

6.3 The Influencer shall be paid as follows:

________

6.4 The Advertiser shall be entitled to deduct withholding tax at the prescribed rate from the fees payable, where required by applicable law, and to remit the same to the relevant tax authority on behalf of the Influencer.

7. COMPLIMENTARY PRODUCTS

In addition to the compensation described above, the Influencer shall receive the following complimentary items:

________

8. TRAVEL

8.1 The Parties agree that the Influencer may be required to undertake trips to promote the Products. The details of such trips are as follows:

________

8.2 The Advertiser shall bear the Influencer's reasonable travel costs, including accommodation, meals, travel tickets and other reasonable travel expenses agreed in advance and supported by receipts.

9. DELIVERABLES AND CAMPAIGN

9.1 The Influencer shall promote and market the Products on the following platform(s):

________

9.2 The Influencer shall deliver the following to the Advertiser:

________

9.3 The Influencer's posts shall relate to the following campaign (the "Campaign"):

________

9.4 The Influencer shall obtain the Advertiser's approval before posting any Content relating to the Campaign.

9.5 The Influencer shall comply with the Advertiser's specifications, the Brand Guidelines, the rules of the relevant social media platforms, and the advertising standards prescribed by the Advertising Regulatory Council of Nigeria (ARCON) under the Advertising Regulatory Council of Nigeria Act 2022, including the requirement to obtain prior vetting and certification of advertisements where mandated.

10. LICENCE

10.1 Subject to the terms of this Agreement, the Advertiser grants to the Influencer a non-exclusive, non-transferable licence to use the Brand's Intellectual Property solely to promote and market the Products (the "Licence").

10.2 The Influencer shall use the Brand's Intellectual Property solely to facilitate the promotion and sale of the Products (the "Purpose") and for no other purpose.

10.3 The Influencer shall not assign, sell, sub-licence or otherwise dispose of the Licence.

10.4 The Influencer shall not, during or after the term of this Agreement, do anything or permit any act that challenges, contests or invalidates the Advertiser's rights to the Brand's Intellectual Property.

11. MATERIAL DISCLOSURES AND COMPLIANCE

11.1 Whenever the Influencer publishes any post or uploads Content relating to the Products, the Influencer shall clearly and conspicuously disclose the Material Connection with the Advertiser, by including a statement or hashtag such as "In Paid Partnership with...", "#Sponsored", "Sponsored Post" or "Sponsored Ad".

11.2 This obligation applies regardless of the platform used and is intended to ensure compliance with the disclosure requirements of ARCON and the Federal Competition and Consumer Protection Act 2018 prohibiting misleading and deceptive advertising.

12. DATA PROTECTION

12.1 Each Party shall comply with the Nigeria Data Protection Act 2023 and any regulations or directives issued by the Nigeria Data Protection Commission in respect of any Personal Data processed in connection with this Agreement.

12.2 The Influencer shall not process any Personal Data of the Advertiser's customers or contacts except to the extent strictly necessary for the performance of this Agreement and on the Advertiser's documented instructions, and shall implement appropriate technical and organisational measures to safeguard such Personal Data.

13. TERM AND TERMINATION

13.1 This Agreement shall commence on the Effective Date and shall, unless earlier terminated in accordance with this §13, continue until completion of the Campaign (the "Expiration Date").

13.2 This Agreement may be terminated:

(a) by mutual written agreement of the Parties;

(b) by either Party where the other Party fails to remedy a material breach of this Agreement within ________ days of receiving written notice requiring it to do so;

(c) by the Advertiser where the Influencer's goodwill or reputation materially declines such that it adversely affects the Campaign; or

(d) by the Advertiser for any other reason which, in the reasonable opinion of the Advertiser, affects the Influencer's ability to perform their obligations.

13.3 Either Party may terminate this Agreement before the Expiration Date by issuing a ________ written notice to the other Party stating the reason for the termination.

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13.5 Upon expiration or termination, the Influencer shall promptly deliver up to the Advertiser all materials, documents, works of intellectual property and other tangible property belonging to the Advertiser.

14. INTELLECTUAL PROPERTY OWNERSHIP

14.1 The Influencer hereby irrevocably assigns to the Advertiser, with full title guarantee and free from all encumbrances, all Intellectual Property Rights in all designs, formulas, inventions, patterns, copyrights and all original works created by the Influencer under this Agreement.

14.2 The Advertiser, its authorised agents and the Brand Affiliates shall exclusively own all Content, written works, videos, text, photographs and all other intellectual property, including trademarks, trade secrets, goodwill, patents and copyrights, created or developed by the Influencer during the engagement for the promotion of the Products.

14.3 To the extent any rights do not vest automatically in the Advertiser, the Influencer grants the Advertiser and the Brand Affiliates a royalty-free, exclusive, perpetual and worldwide licence to use and feature the Influencer's Content on any digital, broadcast and print media, including television, radio, newspaper, magazine, websites and social media platforms.

14.4 The Influencer waives all moral rights in the Content to the fullest extent permitted by the Copyright Act 2022.

15. CONFIDENTIALITY

15.1 During the term of this Agreement and at all times thereafter, the Influencer shall keep confidential and shall not, without the prior written consent of the Advertiser, disclose to any third party any Confidential Information relating to the Advertiser, the Advertiser's brand, the Brand Affiliates or the Products.

15.2 "Confidential Information" means all information, whether written, oral, electronic or in any other form, relating to the business, operations, Products, trade secrets, marketing strategies, customers, finances and the Brand's Intellectual Property of the Advertiser disclosed to or obtained by the Influencer in the course of this engagement.

15.3 The Influencer shall use the Confidential Information solely for the purpose of performing their obligations under this Agreement and not for their own benefit or that of any third party.

15.4 The obligation of confidentiality shall not apply to information that:

(a) is or becomes publicly available through no fault of the Influencer;

(b) is required to be disclosed by law, court order or any competent regulatory authority; or

(c) was lawfully in the possession of the Influencer prior to its disclosure by the Advertiser.

16. NON-DISPARAGEMENT

The Influencer shall not make, publish or communicate any statement, comment or representation, whether written or oral, that disparages, defames or in any way damages the reputation, goodwill or commercial interests of the Advertiser, the Advertiser's brand, the Products or the Brand Affiliates, during the term of this Agreement and at all times thereafter.

17. REPRESENTATIONS AND WARRANTIES

17.1 The Influencer represents and warrants that they have full right, power and authority to enter into and perform this Agreement, and that performance hereunder does not conflict with any other agreement to which the Influencer is a party.

17.2 The Influencer further represents and warrants that all Content created under this Agreement shall be original, shall not infringe the intellectual property rights of any third party, and shall comply with all applicable laws, rules and regulations governing advertising and digital marketing in Nigeria.

17.3 The Advertiser represents and warrants that it owns or has the right to use the Brand's Intellectual Property licensed to the Influencer hereunder and that such use shall not infringe the rights of any third party.

18. FORCE MAJEURE

18.1 Neither Party shall be liable for any failure or delay in performing its obligations where such failure or delay results from any circumstance:

(a) which is beyond that Party's reasonable control;

(b) which such Party could not reasonably have avoided or overcome; and

(c) which is not attributable to the other Party.

18.2 Without prejudice to the generality of the foregoing, force majeure shall include war, hostilities or invasion; rebellion, terrorism, revolution, insurrection, or usurped power; riot, civil disorder; epidemic or pandemic; acts of God; and governmental action that prevents performance.

18.3 The affected Party shall notify the other Party in writing without undue delay and shall use reasonable endeavours to mitigate the effect of the force majeure event.

19. INDEMNITY

The Influencer shall indemnify and hold harmless the Advertiser and the Brand Affiliates against any suit, action, claim, damages, liability, loss, judgment, settlement and reasonable expense arising from the Influencer's conduct or breach of this Agreement, including:

(a) the Influencer's use of the Brand's Intellectual Property;

(b) any violation of any law, rule or regulation regulating digital marketing committed by the Influencer or the Influencer's agent;

(c) any harm or injury suffered by any third party due to the Influencer's fault; and

(d) any cost incurred by the Advertiser or the Brand Affiliates in enforcing its rights under this Agreement, including reasonable legal fees.

20. ASSIGNMENT

This Agreement shall be binding on the successors-in-title of the Parties. Neither Party shall transfer, sell, assign or sub-let its rights under this Agreement without the prior written consent of the other Party.

21. WAIVER

Any term of this Agreement may be waived in writing by the Party entitled to such benefit. No delay, omission or failure to exercise any right shall operate as a waiver thereof or preclude subsequent enforcement of that or any other right.

22. VARIATION

No variation or amendment of this Agreement shall be effective unless made in writing and signed by or on behalf of both Parties.

23. SEVERABILITY

If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be severed and the remaining provisions shall continue in full force and effect.

24. ENTIRE AGREEMENT

This Agreement, together with its Schedule, constitutes the entire agreement between the Parties and supersedes all prior written or oral agreements, representations and understandings between them.

25. CUMULATIVE RIGHTS

The rights of the Parties under this Agreement are cumulative and shall not be construed as exclusive of any other right except as otherwise provided by law.

26. FURTHER ASSURANCE

Each Party shall execute and deliver all such documents and take all such actions as may be necessary or incidental to give full effect to the provisions of this Agreement.

27. NOTICES

Any notice under this Agreement shall be in writing and delivered by hand, courier or electronic mail to the address of the relevant Party set out above or to such other address as that Party may notify in writing, and shall be deemed received upon delivery or, in the case of electronic mail, upon confirmation of transmission.

28. DISPUTE RESOLUTION AND ARBITRATION

28.1 The Parties shall use their best endeavours to settle amicably any dispute arising out of or in connection with this Agreement.

28.2 Any dispute that cannot be amicably resolved shall be referred to and finally resolved by arbitration in accordance with the Arbitration and Mediation Act 2023 or any statutory re-enactment or modification thereof.

28.3 The arbitral tribunal shall consist of ________ arbitrator(s) appointed in the following manner:

________

28.4 The seat and venue of the arbitration shall be ________ and the proceedings shall be conducted in the English language.

28.5 Each Party shall bear its own costs of the arbitration, save where the tribunal awards costs against a particular Party.

28.6 The award of the tribunal shall be final and binding on the Parties and may be enforced by any court of competent jurisdiction.

29. GOVERNING LAW AND JURISDICTION

This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Nigeria, and subject to §28, the Parties submit to the non-exclusive jurisdiction of the courts of ________.

30. COUNTERPARTS

This Agreement may be executed in any number of counterparts, each of which when executed shall constitute an original, and all of which together shall constitute one and the same agreement.

IN WITNESS WHEREOF the Parties have executed this Agreement the day and year first above written.

SIGNED by the within-named Influencer:

__________________________
________

in the presence of:

Name ________

Address ________

Occupation ________

Signature ________

SIGNED by the within-named Advertiser:

__________________________
________

in the presence of:

Name ________

Address ________

Occupation ________

Signature ________

SCHEDULE

DESCRIPTION OF SCOPE OF WORK

The Influencer shall perform the following tasks and duties for the Advertiser:

________