Panmi Influencer Agreement
Terms and Conditions
This Influencer Agreement (“Agreement”) between Panmi Pty Ltd (ABN 41 623 111 820) and its Affiliates (collectively, the “Company”) and the other entity or individual listed on the signature page of the Statements of Work hereof (“Influencer”) is made effective on the date on which the last signing party hereto affixes its signature on the Original Statement of Work (“Effective Date”).
- TERM OF AGREEMENT. The Term of this Agreement will commence on the Effective Date and ends on the Termination Date as per the Original Statement of Work signed by both parties, unless otherwise as extended by the parties in mutual agreement upon entering into further Statement of Work agreements.
- INFLUENCER’S COMPENSATION. In consideration for the Services (as defined below) and subject to Influencer’s compliance with this Agreement, the Company will compensate Influencer as set forth in Statements of Work agreed upon from time to time by the parties hereto and entered into under this Agreement (“SOWs”) (all compensation under all SOWs collectively, “Compensation”), with such SOWs incorporated into, and constituting a part of, this Agreement. Influencer shall be responsible for all taxes and expenses associated with the receipt of Compensation. To the extent that Compensation includes the Company’s products (“Products”) or other goods, such Products and goods are provided solely on an “AS IS” basis with no express or implied warranties or representations of any kind. The Company is entitled to suspend Compensation if Influencer has, and to reduce Compensation for, any outstanding liabilities owed to the Company under this Agreement. Only expenses preapproved by the Company in writing will be reimbursed.
- INFLUENCER’S OBLIGATIONS. Influencer shall provide services and content to the Company as described in the SOWs (collectively, “Services”). Influencer acknowledges and agrees to the following:
- For any content provided by Influencer that feature Products, discuss the Company or are described in any SOW (such content collectively, “Influencer’s Materials”), Influencer will, as applicable, clearly and conspicuously display and audibly mention at the beginning of any image, video, audio, description and post on any website, social media platform or other location accessible by end users that Influencer is compensated, sponsored or supported (or such Influencer’s Material is sponsored or directed) by the Company.
- Influencer’s statements will reflect Influencer’s honest views and experience with Products. If requested by the Company, Influencer will furnish testimonial affidavits. Influencer will promptly notify the Company if Influencer’s opinion of Products changes from that which Influencer has expressed to the Company. Influencer will not make factual or performance claims about Products without the Company’s written approval.
- Influencer will respond promptly to requests, inquiries and other communications from the Company or its representatives. Influencer will provide all Influencer’s Materials to the Company for approval prior to, and will coordinate with the Company regarding, the posting, publication, display or distribution of Influencer’s Materials. Influencer will comply with all guidelines provided by the Company, including the guidelines in Code of Conduct as varied from time to time at the Company’. None of Influencer’s Materials may contain content determined by the Company to be offensive, defamatory, profane, obscene, abusive, discriminatory or illegal. Influencer shall not make any statements or take any actions that reflect negatively upon the Company, nor shall Influencer disparage the Company or Products. Influencer will not make disparaging or unsupported remarks about third parties or their products. Influencer will not use Influencer’s Materials for any political purpose. Influencer will not hinder, frustrate or interfere with the Company’s marketing and public relations campaigns for any reason.
- If, in the Company’s sole discretion, (i) any of Influencer’s Materials are not in compliance with applicable law or (ii) Influencer is involved in any situation or occurrence that (A) subjects Influencer to public scandal, disrepute, widespread contempt or public ridicule, (B) could reasonably be deemed by members of the general public to embarrass, offend, insult or denigrate any individual or group or (C) may shock, insult or offend the community or public morals or decency or prejudice the Company, then the Company shall have the right to take any action it deems appropriate, including requiring revision to or an immediate removal of Influencer’s Materials from any website, social media platform or other location accessible by end users (“take-down”) and terminating this or other agreements, and Influencer shall comply with the Company’s requests. Any termination pursuant to this Section 3(d) shall be effective on the date that written notice is sent to Influencer.
- Influencer shall not remove, or otherwise cause to be inaccessible to the public, any of the Influencer’s Materials created, subject to the terms under the relevant SOW, nor delete or deactivate the social media account without the written consent of the Company, and shall do all things to protect the integrity and control of Influencer’s account and shall immediately notify the Company upon Influencer’s discovery of any restrictions placed on the social media account.
- INFLUENCER’S WARRANTIES. Influencer represents and warrants the following:
- Influencer is and shall remain in compliance with all applicable laws and regulations, including advertising, privacy, consumer protection laws (including but not limited to the Australian Consumer Law), rules and regulations, and codes of ethics and guidelines provided by the Australian Association of National Advertisers. Influencer shall obtain all permits and licenses required in connection with the Services and Influencer’s Materials.
- Influencer is, and shall remain, compliant with all applicable terms and conditions on the platform that they are posting on.
- Influencer is not currently a party to, and will not enter into, any endorsement or other similar agreement with any other electronic consumer goods company or any other entity that might be considered a “competitor” of the Company without the written consent of the Company.
- Influencer has the right to enter into this Agreement, to fully perform Influencer’s Obligations under this Agreement and to grant the rights to the Company described in this Agreement. Neither this Agreement nor the rights granted to the Company hereunder conflict with any agreement by which Influencer is bound. There are no claims, litigation, investigations or other proceedings pending or threatened against Influencer which could prejudice the Company’s interests.
- Influencer owns all intellectual property rights, including copyrights and moral rights, in Influencer’s Materials. The Services and Influencer’s Materials are Influencer’s own original work and created solely by Influencer (or at Influencer’s direction) and do not, and will not, violate the publicity rights or infringe upon any trademark, trade dress/get-up, copyright or other right or interest of any third party.
- Influencer has, at Influencer’s expense, secured in writing for the Company a perpetual, non-exclusive, fully paid-up, royalty-free, transferable, irrevocable and worldwide right and license, with rights to sublicense through multiple tiers of sublicenses, to all third-party images, appearances, content, products or intellectual property (“Third-Party IP”) incorporated in, used in or provided in connection with the Services and Influencer’s Materials, including the right to copy, modify, create derivative works of, publicly perform, publicly display, distribute and have distributed such Third-Party IP.
- Influencer has not misrepresented or concealed anything with respect to Influencer’s background that may prejudice the value of Influencer’s endorsement to the Company. This is an essential term.
- LICENSES TO INFLUENCER’S LIKENESS AND ASSIGNMENT OF INFLUENCER MATERIALS; THIRD-PARTY PROVIDERS.
- Influencer hereby grants to the Company a non-exclusive, fully paid-up, royalty-free, transferable, irrevocable, sublicensable and worldwide right and license during the Term and for three years after the expiration or termination of this Agreement, , to use (including the right to copy, modify, create derivative works of, publicly perform, publicly display, distribute and have distributed) Influencer’s name, image, voice, likeness, professional biography and endorsement (collectively, “Influencer’s Image”) and Influencer’s Materials, in any kind of marketing collateral, case studies, communications, public relations, social media and blog posts, websites, intranet sites, presentations and other materials (collectively, “Company Materials”) in any form and language. Notwithstanding the previous sentence, at no time does Company have an obligation to take down any social media posts made during the Term or in the three years thereafter that contain Influencer’s Image and/or Influencer’s Materials. Influencer hereby forever waives in favor of the Company all rights of “Droit Moral” or “Moral Rights of Authors” or any similar rights or principles of law that may preclude the use of Influencer’s Materials (or any part thereof) as granted herein or require Influencer’s permission for the Company to use Influencer’s Materials (or any part thereof) for any Company Materials. Influencer shall not grant any rights with respect to Influencer’s Materials to any competitor of the Company at any time. For the purposes of applicable privacy laws and regulations, Influencer agrees and consents that Influencer’s personal data may be processed, stored and otherwise used or disclosed in any manner for purposes consistent with this Agreement.
- Influencer will provide the Company with correct copyright notices to attribute Influencer’s Materials. The Company shall not modify or alter Influencer’s photographs or videos except for cropping, resizing or typographical edits reasonably required to use such Influencer’s Materials as intended by the parties. The Company will use commercially reasonable efforts when using Influencer’s photographs or videos to include a credit with Influencer’s name and a copyright notice (if provided by Influencer), but failure by the Company to include such credit shall not be a breach of this Agreement. All use of Influencer’s Materials is at the Company’s discretion, and the Company has no obligation to use any of Influencer’s Materials in any manner.
- Influencer may engage independent consultants, contractors and other third parties (including photographers, videographers, editors, models, actors or other talent) (each such third party, a “Third-Party Provider”), in connection with the Services, provided that each Third-Party Provider shall be subject to terms and conditions at least as restrictive upon the Third-Party Provider, and at least as favorable to the Company, as this Agreement. Influencer shall remain fully responsible for the performance of each Third-Party Provider and for their compliance with all of the terms and conditions of this Agreement as if they were Influencer’s own employees. Influencer acknowledges and agrees that any breach of the terms and conditions of this Agreement by a Third-Party Provider shall constitute a breach of this Agreement by Influencer. Nothing in this Agreement shall create any contractual relationship between the Company and any Third-Party Provider.
- LICENSE TO COMPANY, PANMI PTY LTD.
- In consideration of the mutual covenants and agreements set forth herein, the Company grants to Influencer the non-exclusive, limited, non-sublicensable and non-transferable right and royalty-free license during the Term to use without modification on Influencer’s Materials and Influencer’s websites and social media channels, the Company’s Trademarks found at panmi.com.au (“Company Marks”) (i) solely for the purpose of fulfilling its obligations under this Agreement and (ii) in accordance with any style guides or mark usage policies published by the Company at the aforementioned websites, all of which are hereby incorporated by reference. “Trademarks” means trademarks, service marks, copyrights, tradenames, logos, slogans and trade dress/get-up or design of packaging or products. Influencer acknowledges that Company Marks, are owned solely and exclusively by the Company, Panmi Pty Ltd. (“Panmi”). Any suggested modifications or improvements to the Products, or to the Company’s trade dress/get- up or design of any of its packaging for the Company, Panmi, submitted to the Company by Influencer shall become the Company’s exclusive property to exploit or to not exploit as the Company solely deems appropriate without necessity for remuneration or attribution to Influencer. Any and all goodwill generated by use of Company Marks, Panmi Marks will inure exclusively to the benefit of the Company, Panmi Pty Ltd. Influencer shall not use Company Marks or Panmi Marks in any manner that suggests that Influencer is employed by the Company or that the Company is sponsoring or endorsing Influencer’s professional services. This Agreement is not an assignment, novation or grant to Influencer of any right, title or interest in or to Company Marks, Panmi Marks other than the rights explicitly stated herein.
- Influencer acknowledges and agrees that the Company has sole and exclusive control over the use of Company Marks or Panmi Marks in any manner (including use by Influencer). Upon written notice from the Company, Influencer will immediately stop using Company Marks, Panmi Marks or Product references or make modifications requested by the Company. Upon expiration or termination of this Agreement and at any other time upon written notice from the Company, Influencer shall immediately remove from any website, social media platform or other location accessible by end users any of Influencer’s Materials and other content using Company Marks or Panmi Marks. Influencer agrees that, due to the unique nature Company Marks and Panmi Marks , there can be no adequate remedy at law for any breach of Influencer’s obligations under this Section 6(b), that any breach will result in irreparable harm to the Company and therefore, that upon any breach or threat thereof, the Company shall be entitled to equitable relief in addition to all remedies it may have at law.
- Influencer shall defend, indemnify and hold harmless the Company and its respective directors, officers, employees, agents, successors and assigns, from and against any and all losses, damages, liabilities, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees arising out or resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law, in equity or otherwise caused by, arising from or alleging: (a) a breach by Influencer of any obligations, representations, warranties or covenants set forth herein or (b) any negligence or more culpable act or omission of Influencer, including any recklessness or willful misconduct.
- RELEASE AND LIMITATION OF LIABILITY. Influencer irrevocably waives all rights and releases the Company and its respective directors, officers, employees, agents, successors and assigns from, and shall neither sue nor bring any proceeding against any such party for, any claim, whether now known or unknown, arising out of or in connection with (a) the Company’s use of Influencer’s Image, Influencer’s Materials or the Services, including any claims for defamation or invasion of right to privacy, publicity or personality, (b) the Company’s removal of Influencer’s Image, Influencer’s Materials or other information from the Company’s websites, social media accounts or marketing materials or (c) any copying, distribution or use of Influencer’s Image, Influencer’s Materials or other information from the Company’s websites, social media accounts or marketing materials by third persons. IN NO EVENT SHALL THE COMPANY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE VALUE OF THE CONSIDERATION PROVIDED BY THE COMPANY TO INFLUENCER UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY. THE COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGES OR ECONOMIC LOSS OR ANY LOSS OF PROFIT, INCOME OR DATA ARISING HEREUNDER FOR WHATEVER REASON, WHETHER IN CONTRACT, TORT, DECEIT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- INFLUENCER’S EXCLUSIVE REMEDY AND WAIVER OF INJUNCTIVE RELIEF. In the event of any breach by the Company of this Agreement, Influencer’s sole and exclusive right and remedy is to recover damages, if any, in an action at law. Influencer hereby waives any right or remedy in equity, including the right to seek injunctive or other equitable relief to enjoin, restrain or otherwise impair in any manner the display or distribution of Influencer’s Materials.
- INDEPENDENT CONTRACTOR. Influencer is and will act solely as an independent contractor, and Influencer will provide an ABN when submitting any invoice for payment by the Company pursuant to work completed in relation to an executed SOW. Nothing herein will be construed to create the relationship of principal and agent, employer and employee, partners or joint ventures. In addition to Section 7, Influencer shall indemnify, defend and hold harmless the Company from and against all liability imposed or sought to be imposed on the Company resulting from the determination of any tax authority or court of competent jurisdiction that Influencer is not an independent contractor with respect to the Company.
- The Company may terminate this Agreement or any SOW at any time by providing Influencer with written notice, and such termination shall be effective as of the date stated therein.
- Sections 5, 6(b), 7, 8, 9, 10, 11, 12, 13, 14 and 15 shall survive the termination or expiration of this Agreement.
- “Confidential Information” means any information relating to the Company or its products that has commercial, technical or other value in the Company’s business and is confidential in nature, including this Agreement and any technical information, marketing and business plans of any nature, designs, prototypes, “beta” products, samples, models, drawings, specifications, engineering information, roadmaps, processes, software (source and object codes), databases, forecasts, financial data, pricing, identity of or details about actual or potential customers, suppliers or projects, strategies, techniques, inventions, discoveries, trademarks, copyrights, know-how and trade secrets.
- Influencer agrees to hold Confidential Information in strict confidence and to use at least the same degree of care in protecting the confidentiality of Confidential Information that Influencer uses to protect Influencer’s own confidential information of like importance, but in no event less than reasonable care. In addition, Influencer shall: (i) not use Confidential Information for any purpose except for the limited purpose of carrying out the Services; (ii) return to the Company or destroy Confidential Information, all abstracts, summaries and documents produced using Confidential Information and all copies of any of the foregoing upon request by the Company or upon termination or expiration of this Agreement; and (iii) not copy any part of any Confidential Information or disclose any part of any Confidential Information to any person or entity other than its employees, agents and representatives who need the information to perform their duties in connection with carrying out the Services.
- Influencer’s obligations under this Section 13 shall not apply to any portion of Confidential Information that: (i) the Company authorizes Influencer in writing to disclose to third parties without restriction; (ii) is or subsequently becomes generally available to the public through no fault of Influencer; or (iii) is required to be disclosed by Influencer to any governmental agency or pursuant to any subpoena, summons, order or other judicial decree, provided that Influencer immediately notifies the Company of such required disclosure, asserts any applicable privileges available with respect to such disclosure and, upon the Company’s request, reasonably cooperates with the Company in seeking confidential treatment of such Confidential Information or other available relief.
- Influencer agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for any breach of Influencer’s obligations under this Section 13, that any breach will result in irreparable harm to the Company and therefore, that upon any breach or threat thereof, the Company shall be entitled to equitable relief in addition to all remedies it may have at law.
- GOVERNING LAW; EXCLUSIVE JURISDICTION. This Agreement shall be governed by and construed in accordance with the laws of Australia, without regard to conflict of law principles. Influencer and the Company irrevocably and unconditionally submit to the exclusive jurisdiction of and agree to submit any dispute to the state or federal courts in Australia.
- This Agreement (including all Schedules and SOWs) constitutes the entire agreement, and supersedes all prior representations and agreements (whether oral or written), between the parties hereto with respect to the subject matter hereof. In the case of inconsistency or conflict between the provisions of this Agreement and the terms and conditions of any purchase order (“PO”), invoice or other such document that may be issued by Influencer or the Company with respect to the Services, the provisions of this Agreement (including all Schedules and SOWs) will control. This Agreement may only be amended in writing between the parties. Due to the personal nature of this Agreement, Influencer may not assign or novate Influencer’s rights and obligations under this Agreement to anyone else. If any provision of this Agreement is held by a court or tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be severed to the extent of the illegally, invalidity or unenforceability. This Agreement may be executed and delivered in counterparts, all of which together shall constitute one and the same instrument. The parties hereto agree that (a) this Agreement may be signed through the use of facsimile, pdf, email or commercially available electronic software which results in confirmed signatures delivered electronically to each of the parties and (b) execution and delivery by any of these means shall have same force and effect as execution and delivery of an original document with original signatures. As used herein, “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with the Company; and “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.
The parties below, hereby agree to be bound by the terms of this Agreement pursuant to execution on the Statement of Work #1 and all subsequent SOWs as agreed between Influencer and the Company.