What is an Influencer Marketing Agreement?
An influencer marketing agreement is a legally binding contract that states the terms and conditions agreed to between an influencer and an advertiser in relation to the influencer marketing the advertiser’s products and/or services.
It should cover key issues such as:
- What products and/or services the influencer will be promoting;
- What posts the influencer will make to promote the advertiser’s products and/or services; and
- How much the advertiser pays the influencer.
The agreement also covers technical legal issues such as ownership of content and confidentiality.
This guide will cover:
- Situations in which an influencer marketing agreement is required
- How is the influencer marketing agreement to be signed
- Essential terms and clauses in an influencer marketing agreement
Situations in which an Influencer Marketing Agreement is Required
A formal agreement should be used if the influencer and the advertiser intend to promote the products and/or services regularly over a period of time. For example, if they agree that the influencer is to continue promoting the advertiser’s products or services for a year.
Although less necessary, having a formal agreement is still highly recommended even if it is for a one-off promotion of a product or if promotions are done on an ad-hoc basis. This is especially so for higher-value collaborations.
How is the Influencer Marketing Agreement to be Signed?
The agreement must be signed by the influencer and the advertiser. As the advertiser is likely a company, an authorised representative of the advertiser (such as a director or agent of the advertiser) will sign on behalf of the advertiser.
Once the agreement is signed by both parties it is binding. There is no requirement of witnesses or registration of the contract.
Both parties should keep their own copies of the signed contract. This is important as in the event of a disagreement, the parties can examine the contract to determine whether there has been a breach of any obligation, and what recourse they have.
Essential Terms and Clauses in an Influencer Marketing Agreement
Names of parties
The parties to the contract need to be clearly identified by using unique identification numbers (such as NRIC number for individuals, and UEN for companies) to avoid any doubt.
Background
This section states what the parties to the influencer marketing agreement desire to get out of their working relationship.
Products and/or services to be promoted
This clause should exhaustively list all the products and/or services that are to be promoted by the influencer.
The list should be as specific as possible to minimise possible future disputes over whether the influencer is required to promote specific products.
That said, it may also be useful to include broader categories of products to account for possible future product releases.
For example, stating “any future facial makeup products to be agreed upon” may be sufficiently specific without needing to identify exactly which products are to be promoted within the category.
Social media platform
This clause lists the social media platforms and the specific accounts of the influencer which the influencer and advertiser have agreed will be used to promote the products and/or services.
Scope of marketing services
The influencer should promote the products and/or services on its social media accounts in accordance with this clause. This should minimally include how many posts are required and within what time-frame, but should also include any agreed-upon details of how frequently posts should be made.
Any further details on when certain categories of products or services should be promoted, or specifications on the format of the posts, should be included here as well.
The advertiser may also wish to have an option to review proposed posts by the influencer before they are posted.
Finally, this clause might state that the influencer failing to make a post within a week of it being due is a material breach. This is relevant for the “Term and Termination” clause, and will allow the advertiser to terminate the agreement if the influencer does not comply with such an obligation.
Fees
This sets out details of payment of the influencer by the advertiser. This must include how much is to be paid and when payment should be made.
For example, an initial payment can be made by the advertiser to the influencer so that the total payment to the influencer is split between the start and end of the contract. If so, the influencer will receive the remainder of payment at the end of the contractual term.
The clause should also state that the advertiser failing to make payment is a material breach. In the “Term and Termination” clause, this allows the influencer to terminate the agreement if the advertiser does not make payment as required.
Details of any other forms of remuneration, such as if the influencer receives a percentage of the sales made via promo codes the advertiser provides to the influencer, should be stated here as well.
Provision of Products/Services
This clause should correspond closely with the products/services to be promoted, and state the products and/or services that the advertiser will provide to the influencer for the purposes of promotion.
Relevant information on the products and/or services that may assist in promoting the product (such as the price and special features of the product), or are necessary for the influencer to comply with tax obligations, should also be provided to the influencer.
No employment or other relationships
This clarifies that the influencer is not an employee or agent of the advertiser. This means that certain laws such as the Employment Act will not apply, and each party will need to bear its own liabilities.
For example, if the influencer gets into a dispute with a third-party such as a social media platform or an individual who viewed their sponsored posts on the social platform, the advertiser would not be required to assist the influencer in any way.
Term and termination
This clause states the duration of the contract and under which circumstances a party may terminate the contract even if the other party does not agree to the termination. Parties may also mutually agree to terminate the contract before its duration is up.
If the contract is terminated early, the Influencer can be paid on a pro-rated basis for the posts he/she has already made.
When the contract terminates, the contractual requirements for posts to remain publicly available for a period, and obligations of confidentiality, may still continue. The advertiser may also require the influencer to return any products that were provided to be promoted.
Influencer exclusivity
This clause prevents the influencer from promoting products and services from other brands.
However, this clause may not be applicable, depending on whether the parties agree to allow the influencer to continue to promote other products (and whether these products may be from competing brands). If this clause is not applicable, it need not be included.
Intellectual property
This clause states whether the influencer and advertiser are allowed to use any intellectual property owned by the other party, such as copyrighted material, to market the products and services.
If the parties do not come to an express agreement on this issue, the default position is that marketing posts made by the influencer are owned by the influencer and not the advertiser. The advertiser may then only be allowed to re-publish the posts to promote the product, but not allow third-parties to do the same.
However, the influencer may allow third-parties to do so.
Confidentiality
This clause requires parties to keep information confidential. This is limited to commercially valuable confidential information, so any information that is publicly available would not fall within this clause.
Other Clauses
These clauses are more legal in nature, relating to specific issues in contract law and what law should be applied in interpreting the contract.
Third-party rights
The third-party rights clause prevents other parties (apart from the influencer and advertiser) from claiming any kind of benefit under the agreement. Without this clause, there is a possibility that third-parties may claim benefits under the Contracts (Rights of Third Parties) Act.
Invalidity
The invalidity clause prevents the entire agreement from being rendered void if a particular provision is found to be invalid. Instead, that provision would be treated as though it were modified or deleted so that the agreement would be valid.
However, if the entirety of a key provision such as the “Scope of Marketing Services” section is found to be illegal, the agreement may still likely be void.
Governing law
The governing law clause clarifies that Singapore law should be used to interpret the contract. Without this clause, there may be confusion as to what law should apply, especially if the influencer and advertiser come from different countries.
Jurisdiction
The jurisdiction clause clarifies that the Singapore courts have jurisdiction to interpret and adjudicate any disputes arising from this agreement.
However, if the clause grants the Singapore courts “non-exclusive jurisdiction”, this means that the courts in foreign countries will also be able to adjudicate, provided that the foreign country applies Singapore law when deciding on the dispute.
Influencer Marketing Agreement Template
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The post Your Guide to an Influencer Marketing Agreement in Singapore (Download Template) appeared first on SingaporeLegalAdvice.com.