Terms & Conditions

Last Updated: 02 October 2024

THE PARTIES AGREE:

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement:

“Agreement” means these Terms and Conditions together with the relevant Project Assignment.

“Audio” means the sound recording or musical composition referenced in the Project Assignment.

“Business Days” means Monday to Friday excluding any public holidays in England.

"Fees" means the sums set out in the relevant Project Assignment;

“Data Protection Legislation” means the General Data Protection Regulation (EU) 2016/679 ("GDPR") (as amended and superseded from time to time), and/or all applicable laws (including the Data Protection Act 2018), rules, regulations, regulatory guidance, regulatory requirements from time to time, in each case in each jurisdiction where the Services are delivered in relation to data privacy;

“Intellectual Property Rights” means copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Project Assignment" means the written agreement between the parties setting out the detail of the Services to be performed by the Talent, including the fees to be paid for the Services;

"Services" means the services to be provided by the Talent as set out in the relevant Project Assignment(s).

"Talent Channels" means the accounts which are controlled by the Talent on the relevant social media platforms and channels and in relation to which the Talent agrees to distribute the Talent Materials as further described in the Project Assignment;

"Talent Materials" means any and all content and materials produced by or on behalf of the Talent as a result of the performance of the Services featuring and/or otherwise referring or relating to the Agency and/or its products (including the copy (including social media posts), blog, vlog, audio visual recording, sound recording, photograph or image described in the Project Assignment); and

"Talent Image Rights" means the name, likeness, branding, image, voice or signature of the Talent.

1.2 In this Agreement:

(i) a reference to ‘writing’ or ‘written’ includes email; and

(ii) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time.

2. DURATION

This Agreement shall commence (or be deemed to have commenced) on the Effective Date set out in the relevant Project Assignment and shall continue until the End Date specified in the Project Assignment unless terminated earlier in accordance with this Agreement.

3. ENGAGEMENT

3.1 The Agency engages the Talent to market, advertise and promote the Audio in accordance with this Agreement. The Talent shall provide the Services and create the Talent Materials in accordance with the Project Assignment.

3.2 The Talent shall ensure that any Talent Materials distributed by or on behalf of the Talent on the Talent Channels in connection with the Services shall be transparent to users as being marketing in accordance with advertising regulations.

3.3 The Talent shall:

(i) comply with all applicable laws and all rules, guidance, codes of practice and adjudications relating to the CAP Code and the guidance issued by the Advertising Standards Authority and the Committee of Advertising Practice, as well as the Consumer Protection from Unfair Trading Regulations 2008 and all guidance issued by the Competitions and Markets Authority;

(ii) ensure that the labels #ad or #advert or #paid (as well as any campaign hashtags as set out in the Project Assignment) are placed prominently and legibly on all Talent Materials, and that such label is visible to the viewer prior to the viewer engaging with such Talent Materials; and

(iii) obtain the Agency's prior written approval before using any other hashtag disclosure that is not specified in this Agreement.

3.4 The Talent shall, as part of the Services, provide to the Agency any information reasonably requested in relation to:

(i) the demographics and statistics of the Talent’s social media followers;

(ii) performance results, which may be provided by way of screenshots via email, two weeks after the successful upload of the Talent Material to the Talent Channels; and

(iii) any feedback, engagement results, analytics, metrics, comments and other outcomes in relation to the Services, to enable the Agency to assess the return on investment and evaluate the performance to which the Services relate, for a period of 2 years after the publication of the Talent Materials on the Talent Channel.

3.5 This Agreement shall start on the Effective Date and shall terminate pursuant to the terms of this Agreement.

4. APPROVAL OF TALENT MATERIALS

4.1 The Talent is required to submit all Talent Materials to the Agency for prior written approval. The Talent shall not, under any circumstances, release, publish, or make available any Talent Materials that have not received formal approval from the Agency in accordance with this clause 4.

4.2 Upon receipt of the Talent Materials, the Agency shall have a period of fifteen (15) Business Days (the "Approval Period") to either:

(i) provide written notification of approval (“Approval”) of the Talent Materials; or

(ii) provide written notification detailing any deficiencies in the Talent Materials.

The Talent acknowledges that no Services shall be considered complete, and no Fee shall be due, until Approval of all Talent Materials required under the Project Assignment.

4.3 If deficiencies are identified within the Talent Materials, the Talent shall, at its own expense, correct and resubmit the revised Talent Materials within three (3) Business Days of receiving written notification of non-approval, unless an alternative timeline is specified in writing by the Agency.

4.4 The review and correction process in clauses 4.2 and 4.3 will continue until all deficiencies have been corrected to the Agency's sole satisfaction and the Agency provides written acceptance of the Talent Materials. For each resubmission by the Talent, a new Acceptance Period will apply.

4.5 The Agency reserves the right to terminate this Agreement if the Talent repeatedly fails to provide Talent Materials that meet the Agency’s satisfaction. Such termination may occur without any obligation or liability for payment, including for any Services rendered or materials submitted prior to termination.

4.6 Unless expressly agreed otherwise in writing by both parties, once Approval has been communicated:

(i) the Talent shall publish the Talent Materials on the agreed Talent Channels within twenty-four (24) hours after Approval has been communicated by the Agency;

(ii) subject to clause 4.7 below, all Talent Materials uploaded to Talent Channels must remain publicly accessible indefinitely. The Talent shall not remove, modify, or alter any approved Talent Materials without prior written consent from the Agency.

4.7 At any time upon written request by the Agency, the Talent shall immediately remove and delete all Talent Materials posted by or on behalf of the Talent.

5. GRANT OF ENDORSEMENT RIGHTS

5.1 The Talent grants to the Agency a worldwide, non-exclusive, royalty-free, perpetual, transferable license (with the right to sublicense), to use, reproduce and exploit the Talent Image Rights in connection with the endorsement, promotion, commercial exploitation, marketing or advertising of the Audio solely in connection with the Talent Materials.

6. INTELLECTUAL PROPERTY

6.1 The Talent acknowledges that the Intellectual Property Rights in the Audio remains vested in the rights holder, and the Talent has no rights to the Audio other than the rights expressly granted by the Agency for the purpose of the creation and promotion of the Talent Materials.

6.2 The Agency shall procure a non-exclusive licence for the Talent to use the Intellectual Property Rights in the Audio to the extent required for the Talent to perform the Services. The Talent may use the Audio solely in connection with the Services provided under this Agreement and in accordance with the Project Assignment.

6.3 The Talent retains all ownership rights in the Talent Materials, subject to the licence granted herein. The Talent grants to the Agency a worldwide, non-exclusive, royalty-free, perpetual, transferable licence (with the right to sublicense), to use, adapt, copy, reproduce, modify and exploit the Talent Materials.

6.4 The Talent irrevocably and unconditionally waives, in perpetuity, all moral rights in Talent Materials and all similar rights under the laws of any jurisdiction whether now existing or conferred in the future.

6.5 The Talent shall not incorporate and/or use third party materials in the Talent Materials unless approved by the Agency. The Talent shall, as part of such process notify the Agency in writing: (i) whether an assignment to Agency of the relevant third party materials can be obtained and the estimated cost of obtaining it; and (ii) if an assignment of the relevant third party materials cannot be obtained or cannot be obtained for a reasonable cost, the estimated cost of obtaining a licence of such third party materials which is sufficient for the Agency to fully exploit the Talent Material into which the third party material will be incorporated, and any restrictions relating to such licence. If the Agency approves of any licence to incorporate third party materials in any Talent Materials in accordance with this Agreement, the Talent shall ensure that it has obtained all necessary clearances, licences, permissions and/or waivers, and delivered all notices needed (including, without limitation, in respect of Intellectual Property Rights for the Agency’s agreed use of such third party materials in the Talent Materials.

6.6 The Talent shall indemnify and keep indemnified and hold harmless the Agency any and all liabilities, losses, claims, demands, damages, costs and expenses (including reasonable legal costs and expenses and VAT) incurred by the Agency as a result of any action, demand or claim that use or possession of any of the Talent Material infringes the Intellectual Property Rights of any third party, including the owner of the Intellectual Property Rights of the Audio .

7. FEES AND EXPENSES

7.1 The Agency agrees to pay the Talent the Fees as set out in the relevant Project Assignment, subject to the Talent providing the Services in accordance with this Agreement.

7.2 All amounts payable under this Agreement shall be exclusive of sales, use, value added, goods and services, and all other similar taxes (but not including withholding tax), if any, imposed by a governmental entity for any taxable supply provided under this Agreement. The Talent shall be solely responsible for all income tax and national insurance contributions due in respect of the Fees.

7.3 The Agency may retain from sums paid to it reasonable legal costs incurred by the Agency arising from any complaint or actual or threatened litigation against the Agency directly or indirectly caused by the acts or omissions of the Talent.

8. WARRANTIES AND INDEMNITY

8.1 The Talent warrants, represents and undertakes to the Agency that:

(i) the Talent Materials are the Talent’s original works and use by the Agency of the Talent Materials and Talent Image Rights in accordance with the terms of this Agreement shall not infringe the rights of any third party;

(ii) the Talent is entitled to enter into this Agreement and has full power and authority to grant the rights expressed to be granted under this Agreement and the Talent is exclusively entitled to give all assurances, confirmations, waivers and agreements set out in this Agreement to enable the Agency to exploit the Talent Image Rights and Talent Materials as described in this Agreement without making any further payment other than as expressly set out in this Agreement;

(iii) the Talent Materials shall comply with all applicable laws (including data protection laws) and regulations, including advertising regulations and all terms and conditions and/or terms of use of any social media platforms or other online platforms used by the Talent in relation to the Services;

(iv) the Talent shall render the Services diligently, and to the best of the Talent’s skill and ability; this includes having active and engaged Talent Channels which align with the Agency’s values which can be found at here;

(v) all Talent Materials are truthful, socially responsible, not defamatory or harmful to any third party, not illegal or offensive, not violent, free from inappropriate language and do not depict dangerous or anti-social behaviour;

(vi) the Talent shall not engage in any practices in relation to promotion of the Talent Materials which artificially increase the perceived engagement with the Talent Materials, including but not limited to:

(a) paying (whether directly or indirectly) a third party to increase the number of likes on Talent Materials and/or on the Talent Channels in order to make the Talent and/or its content appear to have a wider and more engaged audience than it actually does;

(b) using (or authorising others to use) automated means such as bots, software or programmes to increase the number of likes, comments, shares or other engagements with Talent Materials;

(c) non-human fraudulent likes or followers; or

(d) other unethical, dishonest, non-organic or non-human methods of increasing perceived engagement with the Talent Materials.

(vii) the Talent shall not at any time do or say anything which is or may be considered by the Agency to:

(a) be detrimental or prejudicial to or to affect adversely the Audio (including the owner of the Audio); or

(b) bring the Talent, the Agency, the Audio owner, the Agency’s end-client, the relevant platforms or any of their products into disrepute;

(viii) the Talent shall be solely responsible for the publication of the Talent Material and any required labels pursuant to clause 3.3(ii);

(ix) the Talent will not:

(a) publish any content which, in the Agency’s opinion, reduces the Talent Material’s prominence once published;

(b) publish posts on the Talent Channels two (2) hours prior to, and three (3) hours after, the publishing of the Talent Material, unless prior written consent to do so has been obtained from the Agency;

(x) the Talent Material will stay at the top of the Talent Channel feed for minimum of (i) twenty-four (24) hours if in connection with any paid partnerships and (ii) three (3) hours in connection with any unpaid partnerships;

(xi) in the event of the Talent Material being removed by the social media platform on which it is published or the Talent Channel being suspended or deleted by any third party, including the social media platform, the Talent shall inform the Agency immediately and the Talent shall use all reasonable endeavours to investigate and resolve the issue; and

(xii) the Talent shall inform the Agency immediately in the event that The Talent is unable, or is likely to be unable, to perform the Services in accordance with this Agreement.

8.2 The Talent shall indemnify and hold harmless the Agency from and against any and all liabilities, losses, claims, demands, damages, costs and expenses (including reasonable legal costs and expenses and VAT) suffered or incurred directly or indirectly by the Agency in consequence of any breach or alleged breach by the Talent of any warranties contained in this Agreement.

9. DATA PROTECTION

9.1 The parties undertake to comply with the Data Protection Legislation in so far as the same relates to the provisions and obligations of this Agreement.

9.2 How and why the Agency processes personal data can be found in the Agency’s Privacy Policy which is available at here.

10. LIMITATION OF LIABILITY

10.1 Nothing in this Agreement shall limit or exclude either party's liability for death or personal injury resulting from negligence, for fraud or fraudulent misrepresentation, or for any other liability which cannot be excluded by applicable law.

10.2 Subject to clause 10.1, the aggregate liability of the Agency arising out of or in connection with this Agreement, whether under contract, tort (including negligence), misrepresentation or otherwise, shall be limited to an amount equal to the amount of the Fees paid under this Agreement.

10.3 Neither party shall be liable for consequential, indirect or special losses.

10.4 Neither party shall be liable for any of the following (whether direct or indirect): loss of profit; loss of revenue; loss of use; loss of production; loss of contract; loss of commercial opportunity; loss of savings, discount or rebate (whether actual or anticipated); harm to reputation or loss of goodwill; and loss of business.

10.5 Except as expressly stated in this Agreement, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

11. TERMINATION

11.1 Either party may terminate this Agreement (without prejudice to their other rights and remedies) with immediate effect by written notice to the other party if the other commits a material breach of this Agreement and, if capable of remedy, fails to remedy such breach within 7 days.

11.2 The Agency may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect upon written notice to the Talent if the Talent:

(i) is incapacitated from rendering the Services;

(ii) is convicted of any criminal offence;

(iii) has conducted itself, in the Agency’s opinion, in such a manner that offends against decency or morality;

(iv) has breached any of the warranties provided at clause 8.1; or

(v) is in persistent breach of this Agreement.

11.3 The Agency may terminate this Agreement for convenience at any time upon one weeks’ written notice to the Talent.

11.4 Should the Talent Materials not conform with the Project Assignment, or not be approved by the Agency, following a written request for the Talent to replace the Talent Materials, the Agency shall have the right to terminate this Agreement upon immediate written notice without any liability whatsoever, including having no liability to pay the Talent any Fees.

12. NOTICES

12.1 Any notice given by a party under this Agreement shall be in writing and sent to the other party either via email or at the address stated at the relevant Project Assignment.

12.2 Notices are deemed received either on receipt of a delivery receipt email, if sent via email, or two business days after posting, if sent by first class post.

12.3 This clause does not apply to notices given in legal proceedings or arbitration.

13. CONFIDENTIALITY

13.1 The Talent shall not use or disclose to any person, except as may be required by law or regulation, the terms and conditions of this Agreement or any confidential information concerning the business, products or affairs of the Agency or the Brand. The Talent shall not use any such confidential information except for the performance of this Agreement.

14. GENERAL

14.1 The Talent shall not assign, sub-license, sub-contract or deal in any other manner with this Agreement without prior written permission from the Agency.

14.2 This Agreement constitutes the entire agreement and supersedes any previous agreement between the parties.

14.3 Nothing in this Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and neither party shall have authority to bind the other in any way.

14.4 No provision of this Agreement shall be modified or varied without the written consent of both parties.

14.5 If any provision of this Agreement is judged by a court to be unlawful, void or unenforceable, the provision shall, the extent required, be deemed removed from the Agreement without effecting the rest of this Agreement which shall remain enforceable.

14.6 A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.

14.7 This Agreement and any dispute or claim (including any non-contractual disputes or claims) in connection with it shall be governed by, and construed in accordance with, the laws of England and Wales.

14.8 The parties agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including any non-contractual disputes or claims) in connection with this Agreement.

END of Terms and Conditions