INFLUENCER SERVICES AGREEMENT
Standard Terms and Conditions
(Last Updated: 25 August 2022/Version: 20220825)
These terms and conditions (the “Terms and Conditions”) shall apply and form an integral part of the Influencer Term Sheet entered into by and between Party B/Influencer (as specified in the Influencer Term Sheet) and Casetagram Limited (the “Company”). Party B, the Influencer and Company shall be each referred as a “Party” and collectively, the “Parties”.
Whenever Party B and/or Influencer wishes to provide to Company, or whenever Company wishes to obtain from Party B and/or Influencer, the influencer services, the Parties shall set out the key commercial terms in the Influencer Term Sheet which must be duly executed by the parties. The services to be provided by Party B and/or Influencer as specified in the Influencer Term Sheet shall be governed by these Terms and Conditions. If there is any inconsistency between the provisions in these Terms and Conditions and the Influencer Term Sheet, the provisions in the Influencer Term Sheet shall prevail. These Terms and Conditions and each Influencer Term Sheet are together referred to as the “Agreement”
THE PARTIES HEREBY AGREE as follows:
Party B shall procure Influencer to, and Influencer hereby agree(s) to, provide Company with the influencer services in accordance with terms and conditions set forth in the Agreement (the “Services”), including:
- Deliverables. to deliver the following deliverables (“Deliverables”) to Company,: (a) to create Influencer Content as more particularly set forth in Section B of the Influencer Term Sheet in accordance with Company’s content brief and specifications to be provided by Company (“Content Brief”) (the “Influencer Content”) and (b) to deliver the Influencer Content to Company by the Submission Date(s) (as set forth in Section C of the Influencer Term Sheet) (or such other date(s) as mutually agreed upon by email or in writing); (c) at Company’s reasonable requests to modify the submitted Influencer Content in accordance with the Approval Terms (as set forth in Section D below), and deliver the modified Influencer Content to Company within such reasonable period determined by Company; and (d) to upload and share the Influencer Content via Influencer’s Official Social Media Accounts, as more particularly set forth in Section A of the Influencer Term Sheet, for viewing by the public, without restriction/limitation, on the First Live Date(s) (as set forth in Section C of the Influencer Term Sheet) (or such other date(s) as mutually agreed upon by email or in writing); and
- Usage Rights: to grant the following Usage Rights for the Usage Period set forth in Section D of the Influencer Term Sheet to Company. Company shall not be required to archive, remove or delete any content/post published, shared, posted or distributed during the Usage Period. (Note: If the relevant Usage Right is not granted to Company, please indicate “0” as the Usage Period in Section D of the Influencer Term Sheet to Company)
Scope of Usage Rights
Organic usage rights to use each Influencer Content on any social media platforms
Paid usage rights to use each Influencer Content on internet (including, but not limited to, any social media platforms, Company’s official website(s) and online store(s) and any other online channels)
Whitelisting Ads Usage
Free advertiser access and advertising permissions to advertise with the paid ads on each Influencer’s official social media accounts to promote Company’s brand and products as designated by Company
The rights to extract, copy, and display, publish, share, post and otherwise distribute all or any part of any Influencer Content (either alone or incorporate with other content/materials) in any manner and on any media/channel (including, without limitation, social media, online, internet, websites, press release, offline) for promoting, advertising and/or marketing Company, its products or its other purposes. Company will get Influencer’s consent for any alteration to the Influencer Content other than as aforesaid.
- Service Fee.
- The total service fees set forth Section E of the Influencer Term Sheet (“Total Service Fee”) is the total sum of the service fee for each Influencer Content (“Service Fee”), which are set forth in Section B of the Influencer Term Sheet.
- Subject to Party B’s and Influencer’s timely performance and completion of the Services, and provided that Party B and Influencer are not in breach of the terms and conditions set forth herein, Company shall in accordance with Section E of the Influencer Term Sheet pay the Service Fee in the Currency to Party B.
- Company will make payment via PayPal to Party B’s designated PayPal email address, and Company will bear the PayPal charges if payment is made by PayPal. If Party B only provides bank account details, Company will make payment in the form of international remittance to Party B’s designated bank account, and each Party shall pay for their own bank fees. Company shall not be responsible for any taxation arising from the payment.
- Any failure by Party B/Influencer to provide accurate payment information, or to timely submit an invoice, or update any changes to the payment information may result in delays in payment. If Company makes a payment to an incorrect account due to Party B’s/Influencer’s failure to provide accurate payment information, Company shall be deemed to have made such payment in full to Party B and Influencer, and shall have no further obligation or responsibility to Party B/Influencer with regard to such payment.
- Free Products.
- Company will provide certain of Company’s products (each, “Free Product”) to Influencer subject to the conditions that Party B undertakes that it shall procure Influencer to, and Influencer shall, feature the Free Products in the Influencer Content, as per the Content Brief. The quantity of the Free Products is set forth in Section F of the Influencer Term Sheet. Influencer shall notify Company (prior to the production of the Influencer Content) the Influencer’s desired design and model of products to be provided as Free Products, Company will select the Free Products with reference to Influencer’s preference but will have the final discretion on the selection. The Free Products will be delivered to Influencer at his/her designated address in the Designated Country set forth in Section F of the Influencer Term Sheet.
- Party B shall procure Influencer to, and Influencer shall, feature the Free Products in the Influencer Content, as per the Content Brief, and at any time before all Deliverables are fully performed keep the Free Products in safe custody. If all or any of the Free Products are lost or damaged or otherwise for any other reason could not be featured/filmed/shown in the Influencer Content as per the Content Brief and other requirements, (a) Party B shall notify Company immediately; (b) upon receipt of the notice, Company may as it thinks fit further deliver the relevant Free Product to Influencer (to be selected by Company, and the actual quantity will be determined by Company at its sole discretion); and (c) Influencer shall pay Company the original retail price of such products (as shown on Company’s official website) and delivery costs, accordingly Company may at its sole discretion deduct such amounts from the Total Service Fees to be paid to Party B/Influencer.
- After the full performance of the Deliverables, Influencer may keep the Free Products for Influencer’s personal use only. Party B undertakes and warrants that it shall procure Influencer not to, and Influencer shall not, use the Free Products for resale or other commercial purpose (except for the Deliverables under this Agreement). Failure to comply with this clause shall constitute a material breach of this Agreement, and each of Party B and Influencer shall indemnify Company and its associated companies/partners from and against all actions, claims, liabilities, losses, demands, costs and damages arising thereof.
- Influencer Content Terms.
Without limiting the generality, or affecting the validity, of the terms and conditions in the Agreement, each of Party B and Influencer hereby agrees to the following terms and conditions (collectively, “Influencer Content Terms”):
- Approval Terms (of each Influencer Content): (a) the creative control of the Influencer Content shall be solely under Influencer, and all content of Influencer Content shall be created with and in the Influencer’s own voice, style, tone and words; and (b) each Influencer Content shall be subject to three (3) rounds of note/edit as it relates to specification and guidelines set forth in Company’s Content Brief. Notwithstanding the foregoing, if the content and quality of any Influencer Content is still deviated from such specifications and guidelines after three (3) rounds of note/edit, Influencer shall further modify/edit (and where necessary, reshoot) the Influencer Content to comply with such specifications and guidelines and deliver the modified Influencer Content to Company within such reasonable period determined by Company. For the avoidance of doubt, so long as such specification and guidelines are met, there will be no reshoots. In any event all Influencer Content are subject to Company’s approval, Party B shall procure and ensure that Influencer shall not publish or post the relevant content/post unless and until Company has approved the same. After Company’s approval and at anytime when the Influencer Content is going live, Party B and Influencer shall upon Company’s reasonable request revise any information/content contained in the Influencer Content to the extent that such information/content is no longer accurate.
- Timely Performance: Timely performance is of the essence. Influencer shall perform all services in a timely manner. In the event of late delivery of any Influencer Content at any stage (including but not limited to submission date and posting date), without prejudice to Company’s any other rights and remedies under this Agreement or at law, including but not limited to right of termination, at Company's reasonable discretion, (a) interest on the Service Fee of the relevant Influencer Content shall accrue from the past due date until Company’s receipt of the delayed Influencer Content at an interest rate of not more than 5% per day; and (b) Company may, at its option, offset and deduct the interest amount from the Service Fee and pay the net amount to Party B/Influencer, or upon Company’s request Party B and Influencer shall immediately pay the total interest amount to Company.
- Make Good Policy: each Influencer Content shall reach the respective Expected View/Expected Reach (as set forth in Section B above), if any, within 30 days after the First Live Date of each Influencer Content. For each Influencer Content, the Expected View and Expected Reach will be measured based on the data of the relevant social media platform. If an Influencer Content fails to reach the respective Expected View/Expected Reach, Company may cancel all or any of the remaining Influencer Content to be provided by this Influencer with the deduction of the relevant Service Fee from the Total Service Fee, or at Company’s request Party B shall procure Influencer to further create and deliver one (1) additional Influencer Content with the same specification to Company without additional costs and service fees to Company (“Make Good Policy”). Such additional deliverable under this Make Good Policy will be treated as an Influencer Deliverable under this Agreement. (Note: If the Make Good Policy does not apply to an Influencer Content, please indicate “0” as the Expected View/Expected Reach in Section B of the Influencer Term Sheet)
- Posting Period: For each Influencer Content, to complete the performance of the Deliverables, the Influencer Content shall be kept going live for at least 90 days from the First Live Date, and thereafter the Influencer Content shall not be removed/deleted from the respective social media networks unless otherwise agreed by Company.
- Dedicated Content: All Influencer Contents are dedicated solely to Company. Party B and Influencer acknowledge and agree that the Influencer Content, or any other post/content in connection or combination with the Influencer Content, shall not include or refer to or tag with any other brand or trademark other than Company (or those other brand/trademark as authorized or agreed with Company).
- General Terms and Conditions.
- This Agreement shall become effective from the date of duly execution of this Agreement until Party B’s and Influencer’s full performance of the Services and the expiry of the last Usage Period, whichever is later (“Term”).
- Each of Party B and Influencer warrants and undertakes that (a) each of Party B and Influencer is free to enter into this Agreement without violation of any applicable laws or contractual obligations; and (b) Party B and Influencer shall (i) provide all Services with commercially reasonably skill and care in a competent and professional manner; and (ii) comply with all applicable laws and regulations in connection with the performance of Services (including, without limitation, to ensure that all Influencer Content shall comply with any censorship or regulatory law, rule or code, voluntary codes, industry guidelines, advertising regulation, rule or code); (iii) upon Company’s reasonable request provide proper evidence of his or her age or identification in the form of a valid driver’s license or passport (or other acceptable government-issued identification as determined by Company in its sole discretion) for verification purpose; and (c) (i) no fraudulent activity or other activity has been or will be done to falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach on any applicable social media account, including, without limitation, with regard to the applicable Expected Reach/Expected View (collectively, the “Audience Indicators”); and (ii) if there is any reasonably suspect of any Audience Indicator, valid evidence shall be provided to Company within 24 hours upon Company’s request to sufficiently prove that the relevant Audience Indicator has not been falsely or artificially increased or affected; and (d) (i) all Influencer Content shall be Influencer’s original creative works and created and produced by Influencer’s own voice, style, tone and words, and Influencer shall have the sole and exclusive ownership of all rights in the Influencer Content and have obtained all required right clearances, consents, permissions and image/appearance releases for the use and exploitation of the Influencer Content; and (ii) nothing in the Influencer Content will infringe or violate any intellectual property rights and any other rights or interests of any party, give rise to a claim of slander or libel, breach any contract or duty of confidence, or be defamatory, obscene or unlawful; and (e) during the Pre-Service Period and after execution of this Agreement until the Post-Service Period (both periods as set forth in Section H of the Influencer Term Sheet), each of Party B and Influencer shall not act in any manner, and/or collaborate or cooperate with, represent, endorse and/or act for any other brand for phone case and/or tech accessories, and shall not act in any manner which would create any kind of conflict of interest to Company’s main business (i.e, phone case and tech accessories products); and (f) at any time during or after the Term, each of Party B and Influencer shall not (i) engage in any conduct detrimental to the interests of Company, including, without limitation, any conduct to make any secret profit out of this Agreement or tending to bring Company into disrepute or which results in the loss of custom or business; (ii) make or cause or permit to be made any untrue, derogatory or misleading statement about the Company, its brand and products; (iii) engage in any improper or unlawful practices that could expose Company and its brand and products to liability or which are inconsistent with their business practices; and (iv) act in any manner which would create any kind of conflict of interest, and/or would reduce or diminish Company’s goodwill, reputation or image (i) act in any manner would harm or diminish Company’s goodwill, reputation or image, and (ii) disparage, make or cause to be made any disparaging or misleading statement or remark, or send or cause to be sent any disparaging communications concerning, Company, its brand, products, reputation and business, and (iii) engage in any improper or unlawful practices that could expose Company and its brand and products to liability or which are inconsistent with their business practices; and (g) (i) Party B and Influencer shall not use the Influencer Content, or caused/authorized the Influencer Content to be used, in any manner or for any purpose other than those set forth in this Agreement or mutually agreed with Company in writing or by email; and (ii) notwithstanding any other provisions in this Agreement, upon Company’s request, Party B shall, and shall procure Influencer to, cease the use of any Company’s materials, tradename, logos and trademarks (“Company Material”), including, but not limited to, removing and stopping the publishing/distribution/posting of any Deliverable which contains any Company Material. Failure to comply with any of the above shall be considered as a material breach of this Agreement by Party B and Influencer. This clause shall survive termination or expiration of this Agreement.
- All materials (except Free Products) provided by Company under this Agreement and all of Company’s logos, brand names and trade names shall remain at all times the property of Company and any use shall be subject to Company’s prior approval.
- Company may terminate this Agreement with immediate effect in any of the following events: (a) any breach of this Agreement by Party B or Influencer; and/or (b) Party B or Influencer become the subject of public controversy, scandal, or disrepute, or otherwise is the subject of any action which shocks, insults, or offends Company, its brand, business, products, affiliates, shareholders and/or employees, or reduces or diminishes Company’s goodwill, reputation or image. In the event of any early termination of this Agreement under this clause, all rights granted to Company in the Deliverables shall remain unaffected by such termination and Company shall be released from its payment and other obligations under this Agreement (and all paid monies shall be refunded to Company). And, upon Company’s request, Party B shall procure Influencer to, and Influencer shall, at Company’s discretion, return at Party B/Influencer’s cost all Free Products to Company or compensate Company with the original retail price of the Free Products (as shown on Company’s official website), which shall either pay to Company immediately or be deducted from any amounts payable by Company to Party B/Influencer. In addition to any other remedies at law or in equity that Company may have, Company shall be entitled to equitable relief to prevent or cure any breach of this Agreement. Each of Party B and Influencer shall also indemnify Company against any losses or damages arising from any of the events (a) or (b) above.
- Subject to clause 4 above, if Influencer’s performance of Services becomes virtually worthless for any reasons (including, without limitation, act of God, endemic/pandemic, any act, order, direction or regulation of any government or any public, local or regulatory authority, Influencer’s serious illness or injury (with sufficient and valid proof), the relevant social media platform or Influencer’s official social media account becoming inaccessible/blocked/banned in the United States (or any other main territory(ies) of Company’s business)) (the “Affected Service”), (a) if the occurrence of an Affected Service is not caused by the default, act, negligence or omission of Party B/Influencer, (i) the parties shall discuss in good faith and agree on the adjustment of the Service Fee for the Affected Service (and any exceeding payment shall be refunded to Company by Party B/Influencer), or (ii) Company may terminate this Agreement by immediate written notice to Party B/Influencer. In the event of (ii), for any Deliverable already submitted to and approved by Company, the parties shall discuss in good faith and agree on a fair and reasonable remuneration to Party B, and Company shall be released from the remaining payment and other obligations under this Agreement (and any exceeding payment shall be refunded to Company by Party B/Influencer); or (b) if the occurrence of an Affected Service is caused by the default, act, negligence or omission of Party B/Influencer, Company may terminate this Agreement in accordance with clause 4(a) above. In any case of (a) or (b) above, all rights granted to Company in the Deliverables shall remain unaffected by such termination.
- This is a non-union Agreement. The parties acknowledge and agree that this Agreement and all services and deliverables provided by Party B and Influencer hereunder shall not be subject to the terms of any collective bargaining agreement (e.g., SAG, AFTRA). Party B confirms that both Party B and Influencer acknowledge that Company is not a signatory to any collective bargaining agreement covering such services and deliverables.
- Notwithstanding any provision to the contrary, in any event (i) Company’s aggregate cumulative liability under this Agreement shall not exceed the total amount of the paid Service Fee under this Agreement, whether in contract or tort (including negligence or breach of statutory duty) or otherwise; and (ii) Company shall not be liable to Party B and Influencer for any loss or suffering, including but not limited to any incidental, consequential, special or punitive damages or loss of profits, howsoever arising out of this Agreement and/or the Services.
- This Agreement and its contents and all non-public information and materials provided and disclosed by Company under this Agreement are confidential, and shall not be disclosed by Party B/Influencer to any third party without Company’s consent. The confidentiality and non-disclosure obligations of this Agreement shall not apply if disclosure is required by a judicial or regulatory order or decree of governmental law or regulation, provided that in such circumstances, to the extent permitted by the applicable laws, Party B/Influencer shall provide Company with prompt written notice so that Company may seek an appropriate protective order. This clause shall survive termination or expiration of this Agreement.
- This Agreement (including each Influencer Term Sheet and any other appendix(es) and schedule(s) attached thereto) shall constitute a full and binding legal agreement between the parties, and supersedes all prior or contemporaneous agreements and understandings between the Parties regarding its subject matter. A person or entity which is not a party to this Agreement shall have no rights to enforce any term of this Agreement.
- This Agreement may be executed in counterparts and/or via PDF and/or by using electronic signature, each of which shall be deemed an original, but all of which shall constitute the same Agreement, and shall be legally binding.
- This Agreement and all services to be performed in connection herewith shall be governed by the laws of Hong Kong SAR (without giving effect to choice of law or conflict of law principles), and the parties agree to submit to the exclusive jurisdiction of the courts of Hong Kong SAR.
- This Agreement will be executed in English and Chinese. In the event of any conflict, inconsistency or ambiguity between the English and the Chinese version, the English version shall prevail.
*All content and texts of these Terms and Conditions are copyrighted works and may not be copied reproduced or appropriated, in whole or in part, in any manner without the Company’s written permission.