These Terms and Conditions for Influencers, incorporating any documents by reference and any revisions thereto, set out the terms under which you (“You”) agree to provide services as a freelance influencer (“Your Services”) to Guardian News & Media Limited (“GNM”).
Please read these terms carefully. You shall be legally bound by these terms when GNM sends You a countersigned Term Sheet. You are advised to print off and keep a paper copy of these terms.
1. DEFINITIONS AND ACCEPTANCE
1.1 GNM would like to engage Influencer to produce off-platform content on the terms and conditions set out below (the “Terms and Conditions“).
1.2 In these Terms and Conditions the defined terms shall have the meaning given to them in the Term Sheet or shall be defined as follows:
Applicable Laws: all applicable laws, regulations, regulatory requirements and codes of practice of any relevant jurisdiction, as amended and in force from time to time;
Campaign Materials: any Materials included by the Influencer in the Deliverables, including Existing Materials and Third Party Materials;
Confidential Information: all technical, commercial and financial information, product information, trade secrets, know-how and all information relating to the plans, intentions, market opportunities, transactions, affairs and/or business of a Party and/or its or their customers and/or suppliers;
Existing Materials: Materials created by the Influencer prior to commencement of the Term;
GNM Logos: the designs, logos, trade marks, trade names and other marks of GNM;
Intellectual Property Rights: registered and unregistered trade mark and service marks, domain names, patents, registered designs and design rights, database rights, copyright and all similar rights anywhere in the world, and any and all goodwill and know-how associated with the foregoing;
Materials: any materials including, without limitation, photographs, film or video, musical work or sound recording, graphic work and literary work, regardless of medium or format;
Parties: GNM and the Influencer, and “Party” shall be construed accordingly;
Partner Logos: the designs, logos, trade marks, trade names and other marks of the Partner;
Service Day: the day on which the first Deliverable (in any medium) is made public by the Influencer in accordance with the Agreement;
Term: shall have the meaning given to it in Clause 7.1;
Term Sheet: the document to which these Terms and Conditions are annexed which is signed by the Parties and containing, amongst other things, the name of the Influencer, the Fee and a description of the Deliverables; and
Third Party Materials: Materials created by GNM, the Partner or a third party.
2. INFLUENCER’S RIGHTS AND OBLIGATIONS
2.1 In consideration of and subject to the payment of the Fee, the Influencer shall:
2.1.1 undertake the Deliverables in accordance with the Agreement, and it is agreed that time is of the essence in the Influencer’s performance of the Deliverables;
2.1.2 ensure that all Deliverables shall not:
2.1.2.1 feature or refer to any brand names, logos, emblems or products without the prior written approval of GNM;
2.1.2.2.include anything that might be considered offensive, indecent or unlawful, or that might reasonably be considered to be prejudicial or bring GNM, the Campaign or the Partner into disrepute;
2.1.2.3 be used for unlawful purposes or in any way that may damage the name or reputation of GNM or the Partner or that of any of GNM’s or the Partner’s affiliates;
2.1.2.4 infringe the rights (including the Intellectual Property Rights) of any third party; and comply with all Applicable Laws and advertising regulations and be communicated to the public in a way which is transparent and makes clear to users that the Influencer has a commercial relationship with GNM and, where applicable, the Partner;
2.1.3 familiarise him/herself with the Advertising Standards Authority guidance on blogging and vlogging and ensure that all Deliverables comply with it;
2.1.4 not delete, archive or otherwise remove the Deliverables from the Influencer’s Instagram feed during the Display Period commencing from the date of posting;
2.1.5 ensure that all hashtags, tags, the GNM Logos, the Partner Logos and/or reference to the Campaign (as set out in the Term Sheet or as otherwise agreed with GNM in writing) are included on the Deliverables;
2.1.6 ensure that the hashtag “#ad” or “#advertisement” is obvious, visible and prominent in each Instagram post and story caption;
2.1.7 modify or remove any Deliverables immediately if and as reasonably requested to do so by GNM or the Partner;
2.1.8 upon request by GNM, share with GNM relevant Instagram metrics for the Deliverables, including the number of impressions, overall reach, likes, comments, viewers, replies, link opens, and image saves; and
2.1.9 not perform influencer services or other advertising campaigns for any of the Excluded Competitors during the Exclusivity Period.
The Influencer shall maintain in force at its own expense adequate insurance to meet any liabilities which may arise with respect to the Influencer’s performance or failure to perform its obligations under this Agreement.
3. OVERSIGHT AND REVIEW
3.1 Upon completion of the Deliverables, the Influencer shall provide a copy of the same to GNM for its review. The Influencer shall not publish any of the Deliverables before receiving written consent from GNM.
4. FEES AND EXPENSES
4.1 Unless otherwise agreed, Influencer shall be reimbursed for reasonable expenses wholly and necessarily incurred in the preparation and delivery of the Deliverables subject to the Expenses Limit and submission of a properly itemised claim with copies of all receipts attached to the Purchasing Editor.
4.2 All Fees and approved expenses shall be paid within thirty (30) days of expiry of the Term on a self-billing basis and via electronic funds transfer facilities (BACS in the UK) in accordance with the provisions of GNM’s Terms and Conditions for Payments to Content Suppliers.
4.2.1 All sums payable under these Terms and Conditions shall be exclusive of VAT which might become due or payable by the Influencer in the UK or any equivalent payment that might become due elsewhere in the world which, if applicable, shall be payable by GNM in addition at the applicable rate.
5. INTELLECTUAL PROPERTY
5.1 GNM hereby grants a non-exclusive, non-transferable, royalty-free, revocable licence to the Influencer to use the GNM Logos and the Campaign Name on the Deliverables in order to perform his/her obligations under the Agreement.
5.2 Where applicable, GNM shall procure that the Partner grants to the Influencer a licence to allow the Influencer to use one or more (as applicable) of the Partner Logos on the Deliverables in order to perform his/her obligations under the Agreement, failing which, the Influencer shall not use the Partner Logos and his/her obligations in respect of the same shall fall away.
5.3 Subject to the Rights Basis, the Intellectual Property Rights in the Deliverables and associated goodwill (other than any Intellectual Property Rights in Third Party Materials and any associated goodwill therein) shall remain the property of the Influencer.
5.4 The Influencer hereby grants a sole, indefinite, worldwide, royalty-free, assignable, sub-licensable licence to GNM to link to and to reproduce in whole or in part the Deliverables.
6. DATA
6.1 The Influencer acknowledges that GNM may for the purpose of exercising its rights under the Agreement process the Influencer’s Personal Data.
6.2 GNM may receive Personal Data about the Influencer. Details about how GNM collect and process Personal Data about the Influencer, the purpose(s) for which GNM carry out processing, the legal basis upon which GNM carry out such processing, as well as details of how long GNM shall hold Personal Data as set out in GNM’s privacy policy.
7. TERM AND TERMINATION
7.1 The Agreement shall come into effect on the Agreed Date and, subject to earlier termination in accordance with this Agreement, shall terminate on the last of the Publication Date(s) (the “Term”).
7.2 GNM may immediately terminate the Agreement on written notice to the Influencer prior to the first Service Day or, thereafter, may terminate the Agreement on fourteen (14) days’ written notice to the Influencer.
7.3 Either Party may terminate the Agreement immediately by notice in writing to the other Party if the other Party commits a material breach of any of the provisions of the Agreement and, if such breach is capable of remedy, fails to remedy the breach within forty-eight (48) hours of receiving notice from the terminating Party specifying the breach and requiring the breach to be remedied.
7.4 GNM may terminate the Agreement by immediate written notice to the Influencer if the Influencer becomes the subject of adverse press coverage or public criticism due to its acts or omissions which in GNM’s reasonable opinion may directly or indirectly have an adverse effect upon the reputation of GNM or the Partner or any of their associated entities.
7.5 Termination or expiry of the Agreement for any reason shall be without prejudice to any rights or obligations of any Party arising prior to termination or expiry and to any provision of the Agreement expressed or intended to survive termination or expiry.
8. CONSEQUENCES OF TERMINATION
8.1 On the termination or expiry of the Agreement for any reason the Influencer shall cease to make use of the GNM Logos, the Campaign Name, the Partner Logos and any hashtags or other tags which refer to GNM, the Partner and/or the Campaign.
8.2 If GNM terminates the Agreement pursuant to Clause 7.2, it shall pay the Influencer the Fee (or part thereof) that has fallen due prior to the date of termination. Such payment shall be made in accordance with Clause 4.2.
8.3 Clause 2.1.7, Clause 2.1.8, Clause 2.1.9, Clause 4.3, Clauses 5.3 – 5.4, Clause 6, Clause 7.5, Clause 8, Clause 9, Clause 10, Clause 11 and Clause 14 together with those other Clauses the survival of which is necessary for the interpretation or enforcement of the Agreement, shall continue to have effect after the end of the Term.
9. CONFIDENTIALITY
9.1 Each Party shall keep confidential all Confidential Information of the other and the commercial terms of the Agreement and shall not copy, use or disclose any such information to any third party, other than as may be necessary to comply with its obligations under the Agreement and only then where such third party is bound by equivalent confidentiality obligations in respect of that Confidential Information.
9.2 The obligation of confidence under the Agreement shall not apply where the Confidential Information: (i) is required to be disclosed by operation of law; (ii) was in the possession of the recipient prior to disclosure by the other Party; (iii) is subsequently acquired from a third party without any obligation of confidence; (iv) is or becomes generally available to the public through no wrongful act or default of the recipient; or (v) is disclosed on a confidential basis for the purposes of obtaining professional advice.
9.3 This Clause 9 shall continue in force notwithstanding the expiry or termination of this Agreement for any reason.
10. WARRANTIES, INDEMNITY AND LIMITATIONS OF LIABILITY
10.1 The Influencer represents, warrants and undertakes that:
10.1.1 he/she will apply such time, attention, resources, and skill as may be necessary for the due and proper delivery of the Deliverables;
10.1.2 he/she shall comply with GNM’s social media best practice guidelines for freelance contributors; and
10.1.3 he/she is not subject to any prior or existing contractual or other obligation that prevents, restricts, limits or in any way affects his/her capacity to: (i) enter into the Agreement; (ii) deliver the Deliverables; or (iii) grant any rights (including, without limitation, the right and authority to license the Intellectual Property Rights in and the use of the Deliverables to GNM on the terms of the Agreement) or perform any obligations under the Agreement.
10.2 Nothing in the Agreement shall limit or exclude either Party’s liability arising from death or injury to persons caused by negligence, for fraud, or any other liability that cannot be limited or excluded by law.
10.3 GNM shall not be liable to the Influencer for any of the following types of loss or damage even if, in each case, GNM has been advised of the possibility of such loss or damage: (i) special, indirect or consequential loss; (ii) loss of profits; (iii) loss of revenue; (iv) loss of business; (v) loss of goodwill; and/or (vi) loss or damage arising from loss, damage or corruption of any data.
10.4 The aggregate liability of GNM to the Influencer under or in connection with the Agreement, whether arising from contract, negligence or otherwise, shall be limited to the Fee actually paid by GNM to the Influencer at the date the liability arose.
11. INDEPENDENT CONTRACTORS
11.1 The Influencer undertakes any and all engagements under the Agreement as an Independent Contractor and on this basis the Agreement shall not be interpreted or construed to create an association, agency, joint venture, partnership or employer-employee relationship between the Influencer and GNM.
11.2 The Influencer shall have full regard for and abide by GNM’s document setting out the status of Contributors and Suppliers to GNM as Independent Contractors
11.3 For the purpose of Clause 11, “Independent Contractor” shall be interpreted (as appropriate) to include all engagements made with GNM via a company.
12. ANTI-BRIBERY AND CORRUPTION
12.1 The Parties acknowledge that they have not and shall not, directly or indirectly:
12.1.1 given, promised, offered or authorised; or
12.1.2 accepted, requested, received or agreed to receive, any payment, gift, rebate, contribution, commission, incentive, inducement or advantage to or from any person, in contravention of the Applicable Laws relating to relating to anti-bribery, anti-corruption, modern slavery and facilitation of tax evasion including the Bribery Act 2010, the Modern Slavery Act 2015 and the UK Criminal Finances Act 2017.
13. FORCE MAJEURE
Neither Party shall be liable for any whole or partial failure to perform its obligations hereunder, to the extent that such performance has been delayed, hindered or prevented by any circumstances beyond the reasonable control of that Party. Where such circumstances arise, the Party seeking to rely on such an event of force majeure shall forthwith notify the other Party thereof and the obligations of the Parties under this Agreement shall (but only so far as is necessary to take account of the event of force majeure) be suspended until such circumstances cease to apply or the parties have agreed after reasonable negotiations in good faith to effect performance of a modified nature which is not restricted or precluded by prevailing circumstances. The performance of obligations hereunder shall be resumed within a reasonable time of any circumstances affecting performance ceasing to apply.
14. GENERAL
14.1 The Influencer may not assign or sub-contract any of his/her rights or obligations under the Agreement without GNM’s prior written consent.
14.2 A failure or delay by a Party to exercise any right or remedy under the Agreement shall not be construed or operate as a waiver of that right or remedy nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or remedy.
14.3 The Agreement and any documents referred to therein represent the entire terms agreed between the Parties in relation to the Deliverables and supersede all previous contracts or arrangements (including any usage or custom and any terms arising through any course of dealing) of any kind between the Parties relating to the Deliverables.
14.4 Each Party will at the request of the other Party execute any document and do anything reasonably necessary to implement the Agreement and use all reasonable endeavours to procure that a third party executes any deed or document and does anything reasonably necessary to implement the Agreement.
14.5 The Parties do not intend that any third party shall have any right to enforce any of the terms of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
14.6 The Agreement and any dispute or non-contractual obligation arising out of or in connection with it will be governed and construed under the laws of England and Wales. Each Party hereby irrevocably submits to the exclusive jurisdiction of the courts of England and Wales over any dispute or non-contractual obligation arising out of or in connection with the Agreement.
