1.1 In the terms and conditions (the “Agreement”) below, “Media Agency” means the entity as expressly named in the executed Insertion Order (“IO”) attached to and incorporating this Agreement, and “Advertiser” means that entity identified as such in the IO.
1.2 In consideration of the mutual covenants and agreements herein and in the IO and other good and valuable consideration, the receipt and sufficiency are hereby acknowledged, Media Agency and the Advertiser (each a “Party”, collectively the “Parties”) hereby acknowledge and agree as follows:
2.1 If there is a conflict between the terms and conditions contained in this Agreement and the terms and conditions in the IO, the terms and conditions in the IO shall prevail.
2.2 Subject to the terms and conditions of this Agreement, and provided that it has executed the IO, Media Agency shall make commercially reasonable efforts to supply the services and to undertake the advertising offer(s) described in the IO (each an “Offer”).
Media Agency is an influencer marketing agency advertising goods and/or services of public figures and/or companies through social media influencers.
3.1 As specified in the IO, Media Agency will use its social media influencer database to(a) seek potential social media influencers for social media activities regarding the advertising of goods and/or services of Advertiser; and
3.2 Media Agency will use commercially reasonable endeavours to execute the activities in accordance with all reasonable directions given by Advertiser to Media Agency but Media Agency will not be liable for any failure to comply with those.
3.3 Media Agency will assure that any social media influencer will, before
executing any social media activity in regard to the advertising of goods and/or services of Client, sign a contract provided by Media Agency.
3.4 Media Agency agrees that any intellectual property of Advertiser that is
required by Media Agency to execute any social media activity with any social media influencer accurately remains the property of Advertiser.
3.5 Furthermore, Media Agency will use commercially reasonable endeavours to try to arrange that any social media influencer will grant Advertiser an exclusive, non-transferable, worldwide, perpetual and irrevocable (except in cases of material breaches) license including all usage rights (right of reproduction, distribution, making works available to the public, broadcasting, communication by video or audio recordings, right to adapt, transform or modify in any other form whatsoever the content) in regard to all intellectual property that is created by said respective social media influencer in the process of the execution of any social media activity immediately and automatically upon its creation. Advertiser shall be entitled to use said license solely for the following commercial purposes: advertisement on its official website and/or official social media accounts.
3.6 Additionally, Media Agency will use commercially reasonable endeavours to try that Advertiser will be entitled to record the execution of any social media activity and in this regard also entitled to use said material for the commercial purposes as stated in 3.5. In this context, Media Agency will use commercially reasonable endeavours to try that any social media influencer will grant Advertiser an exclusive, non-transferable, worldwide, perpetual and irrevocable (except in cases of material breaches) license including all usage rights (right of reproduction, distribution, making works available to the public, broadcasting, communication by video or audio recordings, right to adapt, transform or modify in any other form whatsoever the content) in regard to said respective social media influencer’s right to its own image (right of publicity) and in regard to said respective social media influencer’s pictures, images or any other kind of portraits that are being used during the execution of all social media activities and/or which may be associated with the aforesaid.
4.1 In order for Media Agency to be able to seek social media influencers and/or to execute any kind of social media activities properly, Advertiser will provide, in advance, Media Agency with all necessary information regarding the goods and/or services of Advertiser specified in the IO. In this regard, Advertiser has to advise Media Agency explicitly of any (country-specific) applicable laws and/or any other kind of regulations in regard to the advertising of goods and/or services of Advertiser.
4.2 Advertiser will as well create and prepare all necessary social media collateral within a reasonable amount of time before the time of the seeking of any social media influencer. Dependant on the respective situation, “reasonable” may as well include a (very) short amount of time (e.g. a couple of hours).
4.3 Said social media collateral shall include, without limitation,(a) text to be written and/or verbally stated by any social media influencer within any social media activity; and/or
4.4 Upon request, Advertiser will confirm the correctness and completeness of the social media collateral Media Agency will provide any social media influencer with (in this regard, by e-mail will be sufficient). In case said request will not be confirmed within 3 business days upon receipt of said request, it will be deemed that all social media collateral Media Agency presented to Advertiser within said request has been confirmed by Advertiser and, in this regard, is correct, complete and may be forwarded to any social media influencer. Therefore, Advertiser is liable for the non-correctness and non-completeness of the social media collateral as well as any delay in delivery, loss or damage to any social media collateral while in Advertiser’s possession, custody and/or control.
5.1 Covenant to Pay - The Advertiser shall pay to Media Agency the amounts set out in the IO, in accordance with the Agreement and any additional payment terms specified in the IO.
5.2 Invoices - With respect to each of the Offers, Media Agency shall invoice the Advertiser, and the Advertiser shall pay to Media Agency the amount noted on any such invoice including, without limitation, all applicable sales, use, excise or other taxes without set-off, abatement, compensation or deduction, all in accordance with this Agreement and the additional terms set out in the IO. Media Agency shall send all invoices to the primary billing contact set forth in the IO. The Advertiser shall provide to Media Agency any and all updates to billing contact information promptly after the Advertiser implements any updates. In the event Media Agency does not receive a written notification of a disputed invoice, with rationale and support specifically set forth therein, within ten (10) business days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed.
5.3 Overdue Payments – To the fullest extent permitted by applicable law, overdue payments will accrue interest from the due date until the date of payment. Such interest shall be calculated on a daily basis at a rate per annum equal to 4% above the ABN AMRO base rate applying in the Netherlands from time to time or (if lower) the maximum rate chargeable by applicable law. Media Agency shall be entitled to recover all reasonable costs of collection (including agency fees and attorneys’ fees) incurred in attempting to collect payment from the Advertiser.
5.4 Suspension of Service - Notwithstanding any contrary provision, Media Agency shall have the right to suspend any or all of the Offers while there are outstanding payments due from the Advertiser.
5.5 All amounts due under this Agreement shall be paid in full without any deduction or withholding other than as required by law and Client shall not be entitled to assert any credit, set-off, deduction, counterclaim or abatement of any nature whatsoever against Media Agency in order to justify withholding payment of any such amount in whole or in part.
5.6 For the avoidance of doubt, any delay and/or any other kind of breach by Advertiser regarding/of its obligations shall not affect Advertiser’s obligation to pay the fee subject in the IO. In any of the aforesaid cases and only if needed, Media Agency will use commercially reasonable endeavours to try to re-negotiate the initially agreed upon details regarding any social media activity with any social media influencer, however, if said procedure fails, Advertiser will have no right to demand the execution of any (further) social media activities with social media influencers. After failed attempts to re-negotiations, this Agreement will be terminated immediately.
6.1 License - The Advertiser grants to Media Agency and its, in a respective social media activity involved, social media influencers (“Publishers”) a non-exclusive, worldwide, royalty free license and right to use, perform, reproduce, display, transmit, modify, copy and distribute any advertisement relating to an Offer including all content, trade-marks, images, trade-name and brand features (collectively, the “Advertising Material”) and any trade-mark, logos, and graphics of the Advertiser in accordance with the IO and this Agreement.
6.2 Editorial – Media Agency shall have the right to reject, suspend or cancel any Offer or Advertising Material which in the opinion of Media Agency: (i) may subject Media Agency to criminal or civil sanction; (ii) is offensive or objectionable; or (iii) is otherwise inappropriate for publication.
6.3 Placement – Except as otherwise provided in the IO, the timing, positioning, and distribution of Advertising Material with regards to any Offer(s) shall be at the sole discretion of Media Agency.
6.4 Modifications – Subject to the Advertiser’s written approval, Media Agency may from time to time, at its option, (i) create derivatives of or modify the Advertising Material; or (ii) create optimized creatives, including, without limitation, banners, landing pages and interstitials (collectively, the “Modified Advertising Material”; together with the Advertising Material, the “Advertising Content”) for use or in connection with one or more Offers. The Advertiser will own all right, title and interest in and to the Modified Advertising Material unless otherwise agreed in writing, and grants to Media Agency and its Publishers the limited, exclusive, worldwide, royalty free right and license to sublicense, use, perform, reproduce, display, transmit, copy and distribute the Modified Advertising Material. To the extent Media Agency provides assistance in the development of Modified Advertising Material, such assistance shall be limited to creative assistance. Advertiser is solely responsible and liable for the Offers, any and all material to which consumers can link through the Offers, and any and all Modified Advertising Material utilized for marketing the Offers, even if Media Agency developed or assisted in the development of an Offer or Modified Advertising Material. In the event Media Agency develops, or assists in the development of an Offer or Modified Advertising Material, Advertiser may only use the Modified Advertising Material for incorporation into Media Agency’s services. Advertiser may not use the Modified Advertising Material for any other purpose including, without limitation, to placement with any other mailer, publisher or affiliate network, without prior written authorization from Media Agency. Advertiser shall be solely responsible for any and all liabilities, losses, costs, claims and expenses arising out of or relating to the Advertising Content.
7.1 Representations of Media Agency – Media Agency represents and warrants that: (a) it has the authority to enter into and to be bound by the IO and this Agreement; (b) the services provided by Media Agency in accordance with this IO and the Agreement shall comply in all material respects with the laws applicable in the jurisdictions where Media Agency conducts its business; and (c) Media Agency does not permit its network or computer systems to be used in the distribution of materials which it believes to contain false or deceptive advertising or any machine readable code including, without limitation, any virus, Trojan horse, worm or other self-executing program, or any content which is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate. Media Agency agrees to take such steps as may be reasonably necessary to terminate any Publisher determined to be responsible for a breach of any applicable federal, provincial, state or local law, and further to cooperate with the Advertiser in addressing such breach with the said Publisher, but Media Agency shall not be liable for any action or inaction by any Publisher contracted by Media Agency to provide services with respect to the Offer.
7.2 Representations, Warranties and Covenants of the Advertiser - The Advertiser represents, warrants and covenants that: (a) it has the authority to enter into and to be bound by the IO and this Agreement; (b) it is an existing legal entity, that the full legal name of the Advertiser is correctly set out above its signature to this Agreement and that it will immediately notify Media Agency in writing of any change to its legal and/or business names; (c) the individual completing this Agreement has the authority to bind the Advertiser to this Agreement; (d) it does and will comply at all times with all laws applicable in the jurisdiction where the Advertiser is situated, conducts its business and in the jurisdictions which have been designated by the Advertiser in the IO to be targeted including, without limitation, the CAN-SPAM Act, the TCPA Act, the FTC rules, the Canadian Competition Act; all as amended or replaced from time to time; (e) it will at all times, comply with the terms of this Agreement and the IO; (f) it will not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from Media Agency; (g) it is entitled to use and to permit Media Agency to use, reproduce, transmit and display the Advertising Content; (h) it has a reasonable basis for all claims made within the Advertising Content, possesses appropriate documentation to substantiate such claims and shall fulfill all commitments made in its Offers and Advertising Content; and (i) the Offer, the Advertising Content and any material to which the Offer or Advertising Content is linked or any product or service made available, promoted or advertised by the Offer or Advertising Content does not, will not encourage and will not (A) violate any third party copyright, trade-mark, trade secret or other intellectual property right, any applicable law, rules or regulations; (B) target children under the age of thirteen (13) and/or offer products or services that are illegal for minors to buy, possess or participate in; (C) contain false or deceptive advertising or any machine readable code including without limitation any virus, Trojan horse, worm or other self-executing program; (D) contain any content which is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate, or (E) otherwise violate any applicable law or regulation.
7.3 Disclaimer – TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, THE PARTIES DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO ANY MATTER HEREUNDER INCLUDING, WITHOUT LIMITATION, PLACEMENT OF ADVERTISING AND ANY OTHER SERVICES PROVIDED, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY PROMISE OF ANY LEVEL OF SUCCESS WITH RESPECT TO ANY OFFER, IN PART OR WHOLE). MEDIA AGENCY DOES NOT GUARANTEE THAT THE ADVERTISER OR ANY THIRD-PARTY WILL BE ABLE TO ACCESS THE MEDIA AGENCY WEBSITE AT ANY PARTICULAR TIME. MEDIA AGENCY SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS.
7.4 Non-circumvention - During the term of this Agreement and for a period of twelve (12) months thereafter, regardless of the reason for termination, Advertiser shall not, knowingly, directly or indirectly, solicit, engage, contract, license, or work with any Publisher of Media Agency for the purpose of competing, superseding, circumventing or otherwise interfering with any contractual relationship between Media Agency and Advertiser without the prior written approval by an authorized party at Media Agency. Advertiser agrees and understands that Media Agency has incurred (significant) expense forming Media Agency’s Publisher network and providing services for the benefit of Advertiser and in the event of a breach by Advertiser of this provision, Advertiser shall pay Media Agency as liquidated damages an amount equal to Media Agency’s revenues for all those Offers that Media Agency ran for Advertiser for the previous twenty-four (24) months prior to the breach specified in this provision or shorter in the event that the Offers ran for a shorter period of time. The liquidated damage remedies provided herein in this provision shall not preclude Media Agency from seeking injunctive relief. All amounts payable hereunder by the Advertiser to Media Agency shall be immediately due and payable in full without demand or other notice of any kind, all of which are expressly waived by the Advertiser.
7.5 Non Solicitation - During the term of this Agreement and for a period of one (1) year after termination of this Agreement, Advertiser shall not, directly or indirectly, solicit for employment any employees of Media Agency or its affiliated entities, except that the foregoing shall not apply to the solicitation of employment of any person where contact with the Advertiser is initiated by such person in response to an advertisement published by the Advertiser in a newspaper, magazine, trade publication or other publication or by electronic means, such as posting on the Internet, and that is available to the general public. Advertiser agrees that monetary damages for a breach of or a threatened breach of this Section will not be adequate and that in the event the Advertiser shall employ a Media Agency employee in violation of this Agreement, Media Agency shall be entitled to injunctive relief (including temporary and preliminary relief) and liquidated damages of two times the employee's total current salary for a period of one year.
7.6 Suppression List – In the event that the IO provides for or otherwise permits marketing by electronic mail, the Advertiser shall deliver its suppression list for each Offer to Media Agency immediately upon execution of the IO and thereafter shall provide an updated suppression list for each Offer not less than once in every seventy-two (72) hour period of time for the duration of the Offer.
8.1 Mutual Indemnity - Subject to the limitations expressed in this Agreement, each party shall indemnify, defend and hold harmless the other party and any officer, director, employee, parent company, subsidiary or affiliated company from and against any and all third party claims, actions, proceedings, suits, losses, costs, expenses, liabilities or damages including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought (collectively, the “Claims”) suffered or incurred by or arising from any breach by the indemnifying party of (i) this Agreement; or (ii) any of its representations, warranties or covenants under this Agreement. Each Party’s obligation to indemnify the other Party is subject to: (i) the indemnified party giving prompt written notice to the indemnifying party in the event that it becomes aware of a Claim or the possibility of a Claim; (ii) the indemnified party giving full cooperation with the indemnifying party, at the indemnifying party’s expense, in responding to, defending or settling any such Claim; (iii) the indemnifying party keeping the indemnified party fully informed of the actions and positions taken by the claimant and taken or proposed to be taken by the indemnifying party including the decision to defend or not defend the claim or complaint; (iv) the indemnified party giving the indemnifying party sole control of the defense of the Claim and that all costs and expenses incurred by the indemnifying party in investigating, resisting, litigating and settling the Claim including the payment of any award of damages and/or costs to any third party, will be paid by indemnifying party; and (v) the indemnified party not admitting any liability or entering into any settlement regarding the Claim on behalf of the indemnifying party. Notwithstanding the foregoing, the Parties further agree that the indemnified party may elect to participate as a party in any litigation involving the Claim to the extent that the court may permit, and any additional expenses generated by such participation will be paid by the indemnified party subject to the possibility of recovery of some or all of the additional expenses from the complainant.
8.2 Limitation of Liability – TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO CIRCUMSTANCE SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS (INCLUDING WITHOUT LIMITATION CLAIMS FOR LOSS OF GOODWILL, USE OF OR RELIANCE ON THE SERVICES PROVIDED HEREUNDER, INTERRUPTION OF BUSINESS OR IMPAIRMENT OF OTHER ASSETS) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MEDIA AGENCY’S LIABILITY TO THE ADVERTISER EXCEED TEN THOUSAND EURO (€10,000.00). Without limiting the foregoing, except for payment obligations hereunder, neither Party shall be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of third parties (including, without limitation, any Publishers contracted by Media Agency to provide services with respect to the Offer), or any third party equipment or any other event or condition affecting production or delivery in any manner beyond the reasonable control and anticipation of either Party.
9.1 Notice – Any notice or other communication permitted or required in the Agreement or in the IO (“Notice”) will be in writing and given by personal delivery via courier or transmitted by facsimile or electronic mail to the receiving party at the address noted on the most recent IO. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or electronic mail or on the date on which it was delivered via courier.
9.2 Either party may terminate the IO and the Agreement on three (3) business days prior written Notice to the other party.In this context, the following shall apply:
9.3 Furthermore, Media Agency may terminate the IO and the Agreement at any time, on written Notice to the Advertiser, if in the opinion of Media Agency the Advertiser has breached the IO or the Agreement or, otherwise, an Offer to be undertaken in accordance with the IO: (a) does or is likely to violate any applicable law, regulation, by-law, code or order of any governmental body having jurisdiction; (b) is defamatory, obscene, pornographic, misleading, deceptive, fraudulent or otherwise inappropriate; (c) might harm the reputation of Media Agency, its directors or anyone for whom Media Agency is in law responsible. In any of the aforesaid cases, 9.2 (c) will not apply and Advertiser will have no right to any kind of compensation whatsoever.
9.4 Each party’s obligations arising under Sections 3.1, 7.4, 7.5, 8.1, 8.2, 10.1, 10.2, 10.3, and 11.1 of the Agreement will survive termination of this Agreement or the IO, for any reason.
10.1 Each party shall keep in confidence all material and information including, without limitation, marketing plans, administration and sales figures received from the other party and marked as confidential or which should be understood to be confidential, and may not use such material or information for any other purposes than those set forth in this Agreement.
10.2 The confidentiality obligation shall, however, not be applied to material and information, which as shown by the receiving party; (a) is generally available or otherwise public; or (b) the receiving party has received from a third party without any obligation of confidentiality; or (c) was in the possession of the receiving party prior to receipt of the same from the other party without any obligation of confidentiality related thereto; or (d) the receiving party has independently developed without using material or information received from the other party.
10.3 Each party shall promptly, upon termination of this Agreement or when the party no longer needs the material or information in question for the purpose stated in this Agreement, cease using confidential material and information received from the other party and, unless the parties separately agree on destruction of such material, return the material in question (including all copies thereof).
10.4 The provisions of this clause 10 shall survive the termination or cancellation of this Agreement and remain in force in perpetuity.
11.1 Each party shall carry out its commitments under this Agreement in a manner that reflects favorably upon the good name and goodwill of the other party. The parties agree that the commitments under this Agreement are not exclusive and that either party may enter into similar agreements with third parties including either party’s competitors.
11.2 Neither party shall be held responsible or liable for any losses, direct or indirect damages, costs and/or expense arising out of any delay or failure in performance of any part of this Agreement due to any act of God, act of the public enemy or due to war, riot, flood, civil commotion, insurrection, labor difficulty, severe or adverse weather conditions, lack or shortage of electrical power, failure of performance by any third party hosting service or equipment provided or maintained by others including general performance of the Internet itself, or any other cause or event beyond the reasonable control or anticipation of the party delayed.
11.3 This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous communications with respect to the agreement between the Parties.
11.4 If any provision of this Agreement proves to be or becomes invalid or unenforceable under any of the applicable laws, then such provision shall be deemed modified to the extent necessary to render such provision valid and enforceable; if the provision may not be so altered, it shall be severed and the remainder of Agreement shall remain in full force and effect. No waiver of any breach of provision of this Agreement shall constitute a waiver of any other breach or any provision hereof, and no waiver shall be effective unless made in writing signed by an authorized representative of the waiving party.
11.5 Nothing in this Agreement confers or purports to confer on a third party any benefit or any right to enforce a term of this Agreement.
11.6 No rights or obligations arising under this Agreement may be assigned, transferred, subcontracted, or otherwise disposed of without the prior written consent of the parties. Any attempt to do so is void. However, this Agreement may be transferred, assigned and/or delegated by either party without prior written consent (i) to a person or entity who acquires or has acquired all or substantially all of this party’s assets, stock or business by sale, merger or otherwise and (ii) to an Affiliated Company of this party.
11.7 Each party is an independent contractor. Any intention to create a joint venture, agency, partnership or employment relationship between the parties is expressly disclaimed. Except as set forth herein, neither party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other party's prior written consent.
11.8 All notices, authorizations and requests in connection with this Agreement shall be deemed given on the business day after they are (i) deposited in the mail, postage prepaid, certified or registered, return receipt as requested; or (ii) sent by air express courier charges prepaid to the address as set forth in the IO. Alternatively, regarding the scope of the Offer, approval of advertising material, notices shall also be deemed given when sent by e-mail with a personalized acknowledgement of receipt.
11.9 This Agreement is governed by, and construed and interpreted in accordance with, the laws of the Netherlands without reference to the conflict of laws principles. Applicability of the United Nations Convention of the International Sale of Goods is specifically excluded. Any disputes which may arise in connection with this agreement shall be adjudicated by the competent court in Amsterdam, the Netherlands.