Example: Influencer Engagement Contract
Please Be Advised: The Cannabis Media Council understands that what is acceptable or unacceptable today may not be acceptable in the future, and the council intends the example herein to be an evolving and living document. This example does not constitute legal advice; instead, all information, content, and materials are for general informational purposes only. Information may not constitute the most up-to-date legal or other information. The Cannabis Media Council makes no representation or warranty, express or implied. Your use of this document is solely at your own risk. Your use of this example does not shield you from legal liability and does not constitute a defense. You should always consult your own legal counsel before you enter into your own advertising program.
Sample: INFLUENCER AGREEMENT
This Influencer Agreement (the "Agreement") between [___________________], (“Influencer” or “You” or “Your”) and [Company name] (“Company” or “Company” or “us/our” or “we”), for a social media opportunity is effective as of [________], 2023, and the term shall be from [________], 2023 through [________], 2023, (the “Term”).
1. Social Media Posts. During the Term of this Agreement, you will publish social media Posts, and create Content on and for the specific social media platforms as defined in and in conformance with the schedule and specifications set out in Exhibit A attached hereto. At our discretion, we will provide you with the briefing materials and other guidelines (including descriptions of products, services and brands), that you will use to create Content and Posts that achieve the goals of our campaign (the “Campaign”). All Content and Posts will meet the following requirements:
a. Your Content and Posts must comply with the Federal Trade Commission’s (the “FTC”) Guides Concerning Endorsements and Testimonials (“Endorsement Guides”), found in Exhibit B, attached hereto. As the Endorsement Guides are updated by the FTC from time to time, You will access and review the most recent updated version of the Endorsement Guides to ensure compliance.
b. While performing duties under this Agreement, You will clearly and conspicuously disclose that (i) you are a paid influencer and (ii) have received free products if that is the case (and consistent with applicable laws and regulations). You will place the disclosure in plain sight and in close proximity to any communications that you make about us, our brands, our branded products and services, or in connection with this Agreement. You will not bury the disclosure in a link or place the disclosure in a string of hashtags or other disclosures, regardless of platform’s space limitations. If a platform does not allow for a clear and conspicuous disclosure, you will not use such platform.
c. To the extent your Content and Posts include Company facts and statement, Your Content and Posts will only include factual statements about Company, our products, services, and brands which are true. You will not make any statements that can be interpreted as health claims or other such claims related to treatment or cure of a medical condition or symptoms of a medical condition.
d. Subject to this Agreement, Your Posts and Content will reflect your own honest opinions, beliefs, and experiences.
e. Your Posts and Content will be original and created solely by you, and will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans.
f. Your Posts and Content will not include any person, or personally identifiable information about anyone, other than You, unless You receive our prior written approval and such person signs a release provided by us.
g. Your Posts and Content will comply with: (i) all applicable laws, rules, and regulations, including applicable social media platform rules; (ii) our standards of conduct set out in Exhibit B; and (iii) any other policies or guidelines we provide you.
2. Schedule. You will publish each Post according to the schedule set out in Exhibit A. The schedule cannot be modified without prior written permission from us.
3. Monitoring Posts. You understand that we may, at our discretion, monitor your Posts and Content for compliance with the terms of this Agreement and Company’s standards. We have the right to address noncompliant Posts and Content by taking any of the following actions alone or in combination:
a. Requiring you to fix the Post.
b. Fixing the Post ourselves or through one of our agencies.
c. Terminating the Agreement under Paragraph 11(a) for a material breach.
4. Ownership; Grant of Rights.
a. Except as expressly stated otherwise in this Agreement, Influencer and Company will keep all rights in intellectual property each party possessed prior to this Agreement. For avoidance of doubt, Influencer will keep all rights to Influencer’s name, social media handles, nicknames, image, likeness, signature, endorsement, biographical information, performance, voice and other characteristics and so-called publicity rights (collectively, Influencer’s “Name and Likeness”).
b. Influencer will be the sole and exclusive owner of all right, title, and interest in and to the Posts and the Content, including all copyrights and other intellectual property rights therein.
c. Influencer grants Company a perpetual, royalty-free license to use the Content and Posts for the purposes of marketing and advertising its products and services.
5. Use of Influencer Name and Likeness, and Information. Influencer hereby grants to Company the right to use Influencer’s Name and Likeness, professional, and other identifying information (including information provided to Company and any other information about Influencer that is publicly available) (collectively, “Likeness”) in connection with the Campaign, the Posts and the Content.
6. Payment. Company will pay Influencer a fee of [$________] (the “Fee”) for completing and publishing all the Posts and Content under this Agreement. Company may pay the Fee in [insert how/installments/one-time etc]. For the avoidance of doubt, the following Posts and Content must be completed in accordance with this Agreement for the Fee to be paid in full: [insert if we want anything completed prior to final payment].
7. Confidentiality.
a. Influencer acknowledges that, as a result of Influencer’s relationship with Company, Influencer may become acquainted with or develop confidential information or Trade Secrets of Company, including without limitation Company‘s employee, client, supplier, and vendor information, financials and marketing information and projections, products and services and the pricing for same, technical information, formulations, recipes, plans, drawings, flow charts, business methods and procedures, and other commercially sensitive information (collectively, “Company Information”).
b. For purposes of this Agreement, the term “Trade Secret” shall have the meaning ascribed to it pursuant to applicable law.
c. For a period of four (4) years after termination of this Agreement for any reason (whether voluntary or involuntary), Influencer agrees that Influencer will (i) keep Company Information confidential; (ii) will not disclose Company Information to any third parties; and (iii) will not use (or cause to be used) Company Information for personal benefit or for the benefit of any third party. In addition, if any Company Information constitutes a Trade Secret, Influencer agrees that such restrictions in the preceding sentence shall remain in effect with respect to such Company Information indefinitely and shall not disclose any such Trade Secrets at any time, ever, for any reason.
8. Representations and Warranties.
a. Parties represent and warrant that they have the full power and authority to enter into this Agreement and to bind each and every term contained in this Agreement.
b. You represent and warrant that: (i) You are not a member of SAG-AFTRA; (ii) all Posts and Content are Your original creation; (iii) none of the Posts or Content has been, and prior to our publication of them will not be, published or otherwise made publicly available, in whole or in part; (iv) Posts and Content are not libelous or otherwise defamatory; (v) Posts and Content do not refer to Company’s name or product in a disparaging, derogatory, or offensive manner, as determined by Company in its sole discretion (including You referring to the Company or the Campaign in a disparaging, derogatory, or offensive manner); (vi) Posts and Content do not, and Company’s use or them will not, infringe or otherwise violate any right of any third party, including any copyright, trademark, patent, trade secret, or other intellectual property right, or any right of publicity or privacy; (vii) the duties performed under this Agreement will be provided in a professional, ethical, and workmanlike manner in accordance with all applicable federal, state and local laws, rules, regulations, and self-regulatory industry guidelines and standards, including without limitation all of the guidelines, rules, regulations, and laws set forth in this Agreement and the Exhibits to this Agreement; (viii) You are familiar with and have a positive view of Company and its products and services, and that any statement made while performing duties under this Agreement will reflect Your truthful positive views regarding Company and the Product. In the event of a breach of any warranty in this Section 8, in addition to any other remedy to which Company may be entitled, You will, at Company’s discretion, devote Your immediate, sustained, and best efforts, at Your expense, to remedy the breach, repair or replace the nonconforming Posts, Content or Campaign, or refund the Company a pro rata portion of the Your Compensation.
9. Indemnification. You agree to indemnify, defend, and hold harmless Company and its affiliates, and its and their respective officers, directors, employees, agents, successors, and assigns, from and against any claims, judgments, damages, liabilities, settlements, losses, costs, and expenses, including attorneys’ fees and disbursements, arising from or relating to any breach by You of the terms of this Agreement, Your representations or warranties hereunder, or as to any claims of infringement from third parties.
10. Termination.
a. Company may terminate this Agreement immediately on written notice to Influencer for breach this agreement. To avoid any doubt, material breach includes (i) failure of Influencer to post Posts and/or Content or to meet the obligations set forth in Exhibit A; and/or (ii) failure of a Post or Content to comply with the requirements of this Agreement and any and all Exhibits.
b. Company may terminate this Agreement immediately on written notice to you if You: (i) are charged with, or indicted, or convicted of criminal conduct or other act involving moral turpitude or felonious activities (other than routine traffic violations not involving alcohol or controlled substances); (ii) commit any act or become involved in any situation or occurrence which brings you into public disrepute, contempt, scandal, or ridicule, or which shocks or offends the community or any group or class thereof, or which reflects unfavorably upon Company or Company’s mission or values, or reduces the commercial value of our association with you as determined in Company’s sole discretion;(iii) information becomes public about your having, in the past, so conducted yourself as in (i) or (iv) breach any material provision of this Agreement or fail to fulfill your material obligations under this Agreement.
c. In the event Company terminates this Agreement, Influencer will only be entitled to 50% of the Fee and the Company will have no further obligation to Influencer.
11. Relationship of the Parties.
a. You understand that you are an independent contractor of Company, and this Agreement does not create any association, partnership, joint venture, employee, or agency relationship between You and us for any purpose. You have no authority (and will not hold yourself out as having authority) to bind Company and will not make any agreements or representations on our behalf without our prior written consent.
b. Company is not responsible for withholding or paying any income, payroll, Social Security, or other taxes, making any insurance contributions, including unemployment or disability, or obtaining worker's compensation insurance on your behalf. You are solely responsible for all such taxes and contributions, including penalties and interest. You are not eligible under this Agreement to participate in any of our employee benefits, such as time off, medical, profit sharing, or retirement benefits.
12. Miscellaneous.
a. This Agreement is personal to You. You will not assign or otherwise transfer any of your rights, or delegate, subcontract, or otherwise transfer any of your obligations or performance, under this Agreement. Any attempt to assign, delegate, or transfer in violation of this paragraph is void. Company may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
b. This Agreement is governed by and construed in accordance with the laws of Colorado without giving effect to any conflict of laws provisions that would result in the application of the laws of a different jurisdiction. Each party agrees to institute any legal suit, action, or proceeding arising out of this Agreement in the federal or state courts in each case located in Denver, Colorado.
c. If any provision of this agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this agreement will continue in full force and effect. This agreement contains the entire agreement between Influencer and Company and supersedes any oral or written statements made by or to you in connection with the Campaign and the Posts. This agreement may not be modified except by a written agreement that is signed by an authorized representative of Company.
d. Force Majeure: In the event that, and for so long as, any party is unable to perform any of its obligations under this Agreement because of an Act of God, natural disaster, fire, casualty, flood, earthquake, war, act of terrorism, strike, lockout, epidemic, pandemic, destruction of facilities, riot, insurrection, actions or decrees of governmental bodies, shortage of ingredients, or communications or energy line failures (each, a “Force Majeure Event”), not the fault of the affected party (or a third party acting on behalf of the affected party), such party (i) shall give notice to the other party, (ii) shall use its commercially reasonable efforts to resume performance and (iii) shall not be liable for any loss or damage to the other party directly or indirectly caused by such Force Majeure Event, or for any payment obligation which accrues while such Force Majeure Event persists.
e. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall be considered one and the same agreement. All notices, requests, claims, demands and other communications under this Agreement will be in writing.
The parties indicate their acceptance of the terms and conditions set forth herein by signing below.
ACCEPTED and AGREED:
[Company Name]
Name
Title
Signature
Date
ACCEPTED and AGREED:
[Influencer / Company Name]
Name
Signature
Date
EXHIBIT A
Description of Services
1. Influencer agrees to provide the following social media imagery, written content, videos, and mentions (collectively, the “Content”) for the following influencer services (the “Services”):
a. Posts: Influencer agrees to post one (1) static post on Influencer’s personal Social Media account(s) (the “Posts”) on a monthly basis during the length of the Term (defined below). Influencer and Company are to mutually agree on which Product the Social Media posts will feature.
i. One (1) static post to be posted on [DATE]
b. Stories: Influencer agrees to post six (6) story slides on Influencer’s personal Instagram account (collectively, the “Instagram Stories”) during the length of the Term. Influencer and Company are to mutually agree on the creative as well as the Product that will be featured.
i. One (1) slide of the Instagram Stories must include a close-up, front of label image of Product(s) and copy related to the Product(s) as mutually agreed upon by Influencer and Company;
ii. One (1) slide of the Instagram Stories must include a swipe-up link with a link to be provided by the Company and sent to Influencer prior to posting.
iii. Two (2) slides to be posted on [DATE]
iv. Two (2) slides to be posted between [DATES]
v. Two (2) slides to be posted on [DATE]
c. Tagging: Influencer agrees that all written Content accompanying the Content must include the hashtags #Companycreator and campaign hashtags (collectively, the “Company-branded Hashtags”, which may be updated at any time upon Company’s election) If any written Content includes mention of multiple Social Media handles, Influencer shall list the Company-branded Hashtags first. Influencer also agrees that the Content’s copy shall be in compliance with Federal Trade Commission (“FTC”) guidelines (as referenced in Exhibit A) regarding endorsements such as adhering to Instagram’s paid partnership disclosure tool in the location section of the post or including # above the fold in the post copy. It is understood that #Companycreator or paid partnership disclosure must be included in every piece of content created by Influencer.
i. Influencer agrees that all written Content accompanying the Content must have the Brands social media account(s) tagged in all Content. Brand tags will be provided by the Company and sent to Influencer prior to posting
d. Influencer shall not delete any Content during the Term unless Company requests that Influencer do so, in which case, Influencer shall immediately comply with Company’s request.
e. Instagram In-Feed Reels: Influencer agrees to post two (2) Instagram Reels. Influencer and Company are to mutually agree on the In-Feed Reels prior to posting.
i. One (1) In-Feed Reel to be posted on [DATE]
ii. One (1) In-Feed Reel to be posted on [DATE]
f. TikTok: Influencer agrees to post two (2) TikTok Videos. Influencer and Company are to mutually agree on the TikTok Videos prior to posting
i. One (1) TikTok Video to be posted on [DATE]
ii. One (1) TikTok Video to be posted on [DATE]
g. Blog: Influencer agrees to create one (1) Blog Post including eight (8) Images and contain minimum 300 words. Influencer and Company are to mutually agree on what the Blog content and Images will contain.
i. Blog post to be posted on [DATE]
2. Company’s Obligation. Company shall provide Influencer with a reasonable amount of free products consistent with any applicable laws and regulations.
Exhibit B
Standards of Conduct
With respect to promotional messages, photos, or other communications made on social media platforms about Company and our products, services, and brands, all influencers must adhere to the following standards:
● You must comply with the Federal Trade Commission's (the "FTC") Guides Concerning Endorsements and Testimonials (https://www.ecfr.gov/current/title-16/chapter-I/subchapter-B/part-255), including making:
● statements that reflect your honest beliefs, opinions, and experiences; and
● clear and conspicuous disclosure about your connection to us in all of your posts.
● To better understand your responsibilities under the Endorsement Guides, you must review the following non-exhaustive list of laws, regulations, and resources:
● The FTC's Endorsement Guides: What People Are Asking (https://www.ftc.gov/business-guidance/resources/ftcs-endorsement-guides-what-people-are-asking).
● FTC: The Do's and Don'ts for Social Media Influencers (https://www.ftc.gov/news-events/news/press-releases/2017/09/csgo-lotto-owners-settle-ftcs-first-ever-complaint-against-individual-social-media-influencers).
● FTC: Disclosures 101 for Social Media Influencers (https://www.ftc.gov/business-guidance/resources/disclosures-101-social-media-influencers).
● FTC: Do you endorse things on social media? (https://www.ftc.gov/media/71405).
● You may not:
● make deceptive or misleading claims about our products, services, and brands or our competitors’ products or services;
● make any claims about our products, services, and brands or our competitors’ products, services, and brands that are not backed up by evidence;
● disclose any of our confidential information;
● disparage Company or our products, services, and brands;
● engage in any communication that is defamatory or infringes upon the copyright, trademark, privacy, publicity, or other intellectual property rights of others;
● offer for sale or solicit products on behalf of Company;
● make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
● post content that promotes bigotry, racism, or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
● use ethnic slurs, personal insults, obscenity, or other offensive language; and
● make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Company’s consumers or other individuals.
● You must adhere to:
● the posted policies, guidelines, and terms of use on any platform on which you post content on behalf of Company, understanding that any these platforms’ disclosure requirements about your connection to us do not necessarily satisfy FTC disclosure requirements; and
● any additional guidelines provided by Company, such as products, services, and brands -specific program requirements and our Social Media Endorsement Policy, if we have an applicable one.
● You must not create fake followers or engagement on social media platforms, such as:
● buying followers;
● using bots to grow audience size by automating account creation, following, commenting, and liking; or
● post fake sponsored content.