Last Updated August 07, 2018
These Collective Bias Standard Terms and Conditions for Social Media Influencing (“Terms”) shall govern the provision of influencer-generated content for social media and other digital marketing services. For purposes of these Terms, Collective Bias and Client each may be referred to herein as a “Party” or collectively as “Parties”.
Collective Bias is a provider of influencer-generated content for social media and other digital marketing services (“Services”). Collective Bias will provide Services in support of either (i) Client’s products or services or (ii) to the extent Client represents a third-party brand owner (“Brand Owner”), in support of Brand Owner’s products or services.
Collective Bias shall provide Client with Services that are set forth in an insertion order or other similar document, which must be signed by both Parties (“Insertion Order”).
Collective Bias will utilize “Influencers,” who are independent contractors and not Collective Bias employees. The Parties understand and agree that, as independent contractors, these Influencers may express their opinions, including but not limited to their opinions regarding the products or services of Client and/or Brand Owner, in a number of different forums, for which Collective Bias is unable to exercise control. Pursuant to the terms of an Insertion Order, Influencers will create original advertising content including without limitation text, photos, videos, and/or audio (the “Content”). Collective Bias maintains agreements with these Influencers that require Influencers to comply with applicable laws and regulations as well as the terms of any particular Insertion Order. Collective Bias will also provide the following Services:
Conduct an Influencer selection and approval process. If the Client wishes to participate in the Influencer selection and approval process in any way, the details of such participation, including any additional time periods involved, must be clearly outlined in the applicable Insertion Order.
Notify Influencers that they should only be using original Content or Content for which they have all necessary permissions.
Notify Influencers that they should write about Client or Brand Owner’s products or services only in a truthful manner that represents the Influencers’ actual opinions about the Client or Brand Owner’s products or services, and that they should make no unapproved claims about the Client or Brand Owner’s products or services that require substantiation;
Notify Influencers that they must comply with all applicable laws, including all Federal Trade Commission guidance regarding disclosures, including disclosing any material connections with Client or Brand Owner, as the case may be (even if the Client is not located in the United States);
Notify Influencers that they should not write specifically about any competitive products or services in connection with a particular Insertion Order;
Notify Influencers that they should not disparage any of Client or Brand Owner’s products or services reasonably connected in time with a particular Insertion Order;
To the extent that Client elects, in an Insertion Order, to review and approve Influencer Content prior to Content posting, Collective Bias will assist Client in the coordination of one (1) round of Content revision which shall be limited to: (i) factual information regarding the Client, brand or product; (ii) inappropriate or disparaging mention of product, text or photographs; and (iii) mention of competitive products, text or photographs. Client understands and agrees that it shall not have the right to edit or revise Influencer opinions, photographs, or other subjective information; and
To the extent any published Content includes material that Client wishes not to continue to use for any reason, use commercially reasonable efforts (i) to remove such Content from channels owned or controlled by Collective Bias and (ii) to assist Client in ensuring that such Content is removed from channels owned or controlled by the Influencer. The Parties understand and agree that neither Collective Bias nor Influencer shall have any duty to remove Content from channels not owned or controlled by Collective Bias or Influencer.
The Term of an applicable Insertion Order shall commence on the Kick Off date set forth, and shall end on the Wrap-Up Date set forth therein. Any additional programs developed during the Term will be subject to a written addendum to an applicable Insertion Order or a separate Insertion Order, signed by both parties, and incorporated by reference, if applicable.
Termination for Cause:
An Insertion Order may be terminated by a Party for cause immediately by written notice upon the occurrence of any of the following events: (a) if the other Party commits a material breach of its obligations under this Agreement and fails to cure that breach within thirty (30) days after receiving written notice of the breach; (b) if Client fails to make any payment due to Collective Bias and such nonpayment continues for a period of ten (10) days after receipt of written notice from Collective Bias; or (c) if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding.
Fees and Invoicing:
Fees for Services shall be set forth in an Insertion Order. Invoices are due and payable within thirty (30) days from date of invoice. Late payments shall be subject to a penalty of 1.5% interest per month. Any disputes regarding invoices must be communicated to Collective Bias within thirty (30) days of the date of invoice, or such invoice shall be deemed accurate.
Client understands and agrees that Influencer is the owner of the Content and that an Insertion Order does not grant Client any ownership rights in the Content or any rights in the Content beyond the license described herein and as further defined by an Insertion Order. Client or Brand Owner, as the case may be, will receive a perpetual, worldwide, non-exclusive, non-transferable, sub-licensable license in the Content to use, modify, reproduce, create derivative works from, transmit, or display on any webpages or social media channels owned or controlled by Client or Brand Owner, provided a proper attribution to the Influencer, or payment as specified in an Insertion Order, accompanies such usage. Client understands and agrees that the Services and rights granted hereunder are limited to digital Services and that, unless specified in an Insertion Order, the Content may not to be used by Client or Brand Owner in any print, packaging, out-of-home or other non-digital media or in any manner unless specifically addressed in an Insertion Order. If Client wishes to obtain additional rights with respect to the Content, including but not limited to receiving copies of high resolution images or then transfer of all ownership rights in the Content, then Collective Bias, if requested by Client, will utilize commercially reasonable efforts to assist Client, to the extent appropriate in Collective Bias’ determination, in acquiring such additional rights from the Influencer; it being understood, however, that Collective Bias shall have no fiduciary duty or other duty to Client or Brand Owner regarding the acquisition of such additional rights from the Influencer.
Client/Brand Owner License Grant.
Client, either for itself or on behalf of Brand Owner, grants to Collective Bias and the Influencers, along with Collective Bias’ Affiliates or any entity which Collective Bias may use to complete the Services, a limited, non-exclusive, revocable, royalty-free right, to reproduce, publish, publicly display and perform, transmit or otherwise use the contents of anyd all advertisements or other promotional materials submitted by Client and necessary to perform the Services, including but not limited to, all Client, Brand Owner or other trademarks appearing therein, solely in conjunction with performing the Services under an Insertion Order. Client also hereby waives, and shall ensure that Brand Owner waives where applicable, in favor of Collective Bias and its licensees, successors and assigns, all of its moral rights and any similar non-assignable rights in and to such content. For purposes of an Insertion Order, “Affiliate” shall mean any business that directly or indirectly, through intermediate controls, is controlled by, or is under common control, with an applicable Party.
The Parties and Brand Owner shall each keep confidential any Confidential Information, except that the receiving Party or Brand Owner may disclose Confidential Information to its professional advisors and those persons who need to know such Confidential Information in connection with providing the Services, provided such parties are instructed to maintain the confidentiality of the Confidential Information. For purposes of an Insertion Order, the term “Confidential Information” will mean proprietary and confidential information belonging to a Party, including, without limitation, all documentation, specifications, surveys, design concepts, trade secrets, internal reports and communications; sales information, marketing information and promotional plans; the fees for Services; marketing techniques, marketing plans, mailing lists, purchasing information, price lists, pricing policies, quoting procedures, financial information, customer names, customer data, pricing strategies, and other materials or information relating to the manner in which such Party does business; and any other materials or information related to the business or activities of such Party which are not generally known to others engaged in similar businesses or activities. “Confidential information” shall not include information which (a) was already known to the receiving Party or Brand Owner prior to the time that it is disclosed to such Party or Brand Owner; (b) is in or has entered the public domain through no breach of an Insertion Order or other wrongful act of the receiving Party or Brand Owner; (c) has been rightfully received from a third party without breach of an Insertion Order; (d) has been approved for release by the disclosing Party or Brand Owner; or (e) is required to be disclosed pursuant to the final binding order of a governmental agency or court of competent jurisdiction, provided that the disclosing Party or Brand Owner has been given reasonable notice of the pendency of such an order and the opportunity to contest it. Each Party and Brand Owner shall promptly, as of the termination or expiration of an Insertion Order and upon request of the other Party or Brand Owner, return to the other Party or Brand Owner or destroy any such Confidential Information that is written or in tangible form (including, without limitation, all copies, summaries and notes of contents thereof).
Notwithstanding anything in the foregoing to the contrary and without violating any provisions of this Section, Collective Bias shall have the right to use information, including performance metrics, sales lift information and results, regarding the services provided to a Client or Brand Owner to author and publish case studies, articles, white papers, and similar materials (collectively, “Industry Papers”) at its sole discretion, provided that such Industry Papers do not expressly link Confidential Information with Client and/or Brand Owner.
The obligations under this Section shall continue for two (2) years following expiration or termination of an Insertion Order.
Representations and Warranties:
Each Party hereby represents and warrants that: (i) it is duly organized and validly existing under applicable law; (ii) it has the requisite power and authority to enter into, execute and deliver these Terms and any Insertion Order, and to consummate the transactions contemplated by these Terms and any Insertion Order in accordance with its terms. In particular, if Client represents a Brand Owner in connection with these Terms and any Insertion Order, Client represents and warrants that it is authorized to act on behalf of Brand Owner with respect to all matters in connection with these Terms and any Insertion Order. Client shall be liable for any action of Brand Owner which would constitute a breach of these Terms and any Insertion Order. Upon execution, these Terms and any Insertion Order will constitute a valid and binding obligation of such Party enforceable in accordance with its terms; (iii); Neither the execution of these Terms and any Insertion Order, the performance of its obligations, nor the grant or exercise of the rights and licenses herein will conflict with or result in a breach or violation of any of the terms or provisions of any agreement or Insertion Order it may have with any other party; (iv) it has the right and authority to grant the rights and licenses for the materials provided for, and that the use of such materials pursuant to the terms of such grant or license will not violate any other party’s intellectual property rights or other rights, including but not limited to rights of privacy or publicity; (v) all materials submitted by it to the other Party or distributed by it or its agent or assigns under an Insertion Order will be truthful and not misleading, and will comply and conform in all respects to all applicable federal, state and local laws, regulations and ordinances of any kind, including, without limitation laws prohibiting false, fraudulent, deceptive or misleading advertising and laws prohibiting obscenity, indecency, and child pornography. It shall notify the other Party immediately in the event it becomes aware of any facts or circumstances that might constitute a violation of this representation; and (vi) it will comply with all applicable federal, state, provincial and local laws in the performance of obligations under these Terms and any Insertion Order.
Limitation of Liability:
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THESE TERMS OR ANY INSERTION ORDER, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF. THE TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED TWELVE (12) MONTHS’ FEES ACTUALLY PAID OR PAYABLE BY CLIENT TO COLLECTIVE BIAS UNDER THIS AGREEMENT IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO THIRD-PARTY CLAIMS FOR WHICH A PARTY HAS AN INDEMNIFICATION OBLIGATION UNDER THESE TERMS OR AN INSERTION ORDER.
Collective Bias will defend, indemnify and hold Client and its parent, subsidiaries and affiliated entities, including their officers, directors, employees and agents, harmless from and against any lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees and court costs)(collectively, “Loss”) to the extent arising out of any claim, demand, action, or other proceeding brought or instituted (collectively, “Claim”) to the extent such Claim is based on (i) Collective Bias’ performance of Services, (ii) the breach or falsity of any representation or warranty made by Collective Bias under an Insertion Order, and/or (iii) any act and/or omission of Collective Bias relating to the performance of Collective Bias’ obligations to its employees or to third parties arising in connection with the activities contemplated by an Insertion Order, all except to the extent such Loss arises from bad faith, willful misconduct, or gross negligence on the part of Client.
Client will defend, indemnify and hold harmless Collective Bias, its parent, subsidiaries and affiliated entities, including their officers, directors, employees and agents, and its independent contractors providing services to Client and/or Brand Owner from and against any Loss to the extent arising out of any Claim to the extent such Claim is based on (i) any real or claimed defect in any of Client and/or Brand Owner’s products or services, (ii) the breach or falsity of any representation or warranty made by Client and/or Brand Owner under these Terms or any Insertion Order, (iii) any material or information furnished by Client or Brand Owner, including information regarding Client or Brand Owner’s products or services, and/or (iv) any act and/or omission of Client and/or Brand Owner relating to the performance of Client and/or Brand Owner’s obligations to its employees or to third parties arising in connection with the activities contemplated by an Insertion Order, all except to the extent such Loss arises from bad faith, willful misconduct, or gross negligence on the part of Collective Bias.
Each Party agrees throughout the term of an Insertion Order to maintain in full force and effect commercial general liability, umbrella liability, advertiser’s error and omissions liability and professional liability insurance coverage in a reasonable amount, at its own expense. Upon request, a Party shall furnish to the other a certificate of insurance evidencing the same upon execution of an Insertion Order.
Any notice required or permitted by this Insertion Order shall be in writing and shall be sent by a recognized commercial overnight courier, or mailed by registered or certified mail, return receipt requested, addressed to the other Party as set forth below or to such other contact, address, as may be provided in writing by either Party hereunder. Additionally, as to Collective Bias, a copy shall be sent to: Inmar, Inc., 635 Vine Street, Winston-Salem, North Carolina 27101, Attn: General Counsel.
In the event of a dispute between the Parties relating to an Insertion Order, the Parties will attempt to resolve such matter by good faith negotiations within thirty (30) days or, if mutually agreed by the Parties, a longer period of time. If the Parties cannot resolve the dispute during the 30-day time period, the Parties will participate in good faith in at least one mediation session with a licensed mediator during the subsequent 30-day period. If the Parties cannot resolve the dispute for any reason, including but not limited to, the failure of either Party to agree to enter into mediation or agree to any settlement proposed by the mediator, either Party may submit that dispute to the American Arbitration Association (“AAA”) for resolution. The Parties agree that each will bear its own costs and fees (including attorney’s fees) associated therewith, except that the parties shall share equally the costs of the arbitration as charged by AAA. There shall be three arbitrators, with one to be chosen by each Party and the third selected by the chosen arbitrators. The arbitration shall take place at Collective Bias’ offices in Winston-Salem, North Carolina. The decision of the arbitrators shall be final and binding on the Parties and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any arbitration award shall include attorney’s fees for the prevailing party.
Entire Insertion Order/Amendment.
These Terms, and an applicable Insertion Order, shall constitute the entire agreement between the Parties with respect to subject matter hereunder. No amendment or modification hereof shall be valid unless in writing and signed by the duly authorized representative(s) of both Parties. To the extent there is a conflict between this Terms and any Insertion Order, these Terms shall control.
A Party shall not be considered in default of these Terms or an Insertion Order or liable for fees, costs and/or damages, for any failure to perform occasioned by an act of God, force of nature, physical casualty, accident, war or war-like activity, civil commotion, labor dispute, transportation delays, government action or other cause beyond the reasonable control of that Party. Each Party will promptly notify the other Party of the occurrence of any Force Majeure that may affect its performance under these Terms or any Insertion Order.
These Terms, and an applicable Insertion Order, shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to conflict of law principles, and shall benefit and be binding upon the Parties hereto and their respective successors and assigns.
If any term or condition of these Terms or an Insertion Order is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of these Terms or an Insertion Order, unless enforcing the balance of the Insertion Order would deprive either Party of a fundamental benefit of its bargain.
Relationship of the Parties.
Collective Bias shall perform its obligations under these Terms or an Insertion Order as an independent contractor. Nothing contained herein shall place the Parties in the relationship of partners, joint venturers, principal-agent, or employer-employee nor shall either Party have any right to obligate or bind the other in any manner whatsoever.
Except as specifically permitted herein, a Party’s obligations may not be assigned without the prior written consent of the other Party, such consent not to be unreasonably withheld. Any assignment without such consent shall be void upon written notice. Notwithstanding the foregoing, Client may assign an Insertion Order to a purchaser of substantially all of the assets of Client, and either Party may assign an Insertion Order to an Affiliate upon written notice to the other Party.
The Parties’ obligations under Fees and Invoicing, Content License, Client/Brand Owner License Grant, Confidentiality, Representations and Warranties, Limitation of Liability, Indemnification, Notices, Dispute Resolution and this Section, Miscellaneous, each shall survive the termination of these Terms and each Insertion Order.