This Agreement is made on the commencement date, between:
- Influize Ltd, a private limited company incorporated and registered in England and Wales with company number 12570440, whose registered office is at The Old Tannery, Eastgate, Accrington, Lancashire, BB5 6PW, United Kingdom, trading as Influize (“we”, “us”, “our”);
- The Client (“you”, “your”).
Influize provides social media marketing services for brands and influencers who want to grow their following on Instagram by providing celebrity growth campaigns (“Services”). The Client wishes to engage Influize for the provision of their Services. Influize is willing to provide Services to the Client in accordance with the terms of this Agreement, and as set out in Schedule 1.
BY USING OUR SERVICE, THE PARTIES AGREE TO THE FOLLOWING TERMS
- Commencement and Duration
- Influize’s Services
- Influize’s Responsibilities
- Client’s Obligations
- Change Control
- Charges and Payment
- Quality of Services
- Intellectual Property Rights
- Limitation of Liability
- Consequences of Termination
- Force Majeure
- Rights and Remedies
- Agreement in Full
- Third Party Rights
- Governing Law and Jurisdiction
1.1 The following definitions and rules of interpretation apply in this Agreement:
1.1.1 “Agreement” or “Contract” means this agreement between the Client and Influize that is made up of The Contract Details, The Agreed Terms, and Schedule 1.
1.1.2 “Business Day” means 8am to 8pm Monday to Saturday, and 10am – 4pm Sunday (excluding public holidays in England and Wales).
1.1.3 “Commencement Date” means the date that this Services Agreement was made, which can be found at the top of your Invoice.
1.1.4 “Confidential Information” means any information of a confidential nature as described in clause 9.
1.1.5 “Client’s Equipment” means any equipment, systems, or facilities provided by the Client and used directly or indirectly in the supply of Services. This is extended to apply to any equipment, systems, or facilities which are accessed remotely.
1.1.6 “Deliverables” means all Documents, products, and materials developed by Influize or its agents, subcontractors, consultants, or employees in relation to the Services provided in any form.
1.1.7 “Document” includes (in additional to any document in writing) any drawing, plan, diagram, design, image, tape, disk, or any other device or record embodying information in any form.
1.1.8 “Force Majeure Event” has its definition in clause 15.1.
1.1.9 “Influize’s Equipment” means any equipment including tools, systems, or facilities provided by Influize or its agents, subcontractors, consultants, or employees and used directly or indirectly in the supply of the Services which are not the subject of a separate agreement between the parties, under which, title passes to the Client.
1.1.10 “Influize’s Team” means all directors, managers, employees, consultants, engineers and specialists, agents, and subcontractors engaged in relation to the Services.
1.1.11 “In-put Material” means all Documents, information, and materials provided by the Client, relating to the Services.
1.1.12 “Intellectual Property Rights” or “IPR“ means patents; utility models; rights to inventions; copyright, neighbouring, and related rights; trademarks and service marks; business names and domain names; rights in get-up and trade dress, goodwill, and the right to sue for passing off or for unfair competition; rights in designs; database rights; rights to use, and to protective confidentiality of, confidential information (including know-how and trade secrets); and all other intellectual property rights, in each case whether registered or unregistered, and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection, which subsist or will subsist, now or in future, in any part of the world.
1.1.13 “Pre-existing Materials” means all Documents, information, and materials provided by Influize or its agents, subcontractors, consultants, or employees, relating to the Services, which existed prior to the Commencement Date.
1.1.14 “VAT” means value added tax, chargeable under the Value Added Tax Act 1994.
1.1.15 References to clauses and schedules are to the clauses and schedules of this Agreement, and references to paragraphs are to the paragraphs of the relevant schedule or appendix.
1.1.16 Clauses and paragraph headings shall not affect the interpretation of this Agreement.
1.1.17 Unless the context otherwise requires, words in the singular shall include the plural, and words in the plural shall include the singular.
1.1.18 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.1.19 Any words following the terms “including”, “include”, “in particular”, “for example”, or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase, or term, preceding or following those terms.
1.1.20 A reference to “writing” or “written” includes fax and e-mail.
1.1.21 A reference to a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.1.22 A reference to a party shall include that party’s personal representatives, successors, and permitted assigns.
1.1.23 A reference to a company shall include any company, corporation, or other corporate body, wherever and however incorporated or established.
1.1.24 A reference to a holding company or a subsidiary means a holding company or subsidiary as defined in section 1159 of the Companies Act 2006, and a company shall be treated for the purposes only of the membership requirement contained in section 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person, by way of security or in connection with the taking of security, or (b) its nominee.
1.1.25 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.1.26 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. COMMENCEMENT AND DURATION
2.1 This Agreement shall commence on the Commencement Date and continue until the Services are complete unless the Agreement is terminated by one of the parties giving the other at least 7 days notice in writing (unless this Agreement is terminated in accordance with clause 12).
2.2 Influize shall provide the Services from the Commencement Date and shall continue to provide the Services throughout the term.
2.2.1 Influize shall be entitled at their discretion to change the date of the campaign at any time and without prior notice.
3. INFLUIZE’S SERVICES
3.1 Influize work with high profile celebrities who will promote a free to play giveaway/sweepstakes to win prizes. The promoter will ask followers to enter by following Influize’s brand on Instagram and following all brands that are included on the campaign. The campaign will generate new followers for the Client.
3.2 The Client shall sponsor Influize’s giveaway/sweepstake to be included in the campaign.
3.3 It is the Client’s responsibility to make the relevant Instagram profile public during the campaign. Influize are not responsible or liable for any issues that arise due to the Client’s profile being or becoming private during the time of the campaign, including the number of followers the Client may receive as a result.
3.4 Influize cannot guarantee the total number of followers the Client will receive as a result of the campaign.
3.5 Further description of Services can be found on your Invoice.
4. INFLUIZE’S RESPONSIBILITES
4.1. Influize shall:
4.1.1. Use reasonable endeavors to perform the Services and deliver any Deliverables to the Client in accordance with this Agreement and shall allocate sufficient resources (including all equipment, tools, or other items required) to the Services to enable it to comply with this obligation.
4.1.2. Ensure that all goods, materials, standards, and techniques used in providing the Services are of good quality and are free from defects in workmanship, installation, and design.
4.1.3. Ensure Influize’s Team use reasonable skill and care in the performance of the Services.
4.1.4. Comply with all applicable laws and regulations relating to the provision of the Services; and provided that Influize shall not be liable under the Agreement if, as a result of such compliance, they are in breach of any of their obligations under this Agreement.
4.1.5. Use commercially reasonable endeavors to meet any deadlines as to performance dates specified.
4.1.6. Co-operate with the Client in all matters relating to the Services.
4.1.7. Take Reasonable care of any of the Client’s Equipment and In-Put Material in Influize’s possession and make them available for collection by the Client on reasonable notice and request. Influize may dispose of the Client’s Equipment or In-Put Material if the Client fails to collect them within a reasonable period after termination of this Agreement.
4.1.8. Send updates to the Client in respect of the Services pre and post campaign.
5. CLIENT’S OBLIGATIONS
5.1 The Client Shall:
5.1.1 Co-operate with Influize in all matters relating to the Services and appoint as it thinks fit a manager in relation to the Services, who shall have the authority contractually to bind the Client on matters relating to the Services.
5.1.2 Provide such information as Influize may reasonably request, and the Client considers reasonably necessary in order to carry out the Services in a timely manner and to ensure that it is accurate in all material respects.
5.1.3 Pay all invoices submitted by Influize in accordance with clause 7.
5.1.4 Have a public profile so that people can follow the Client and so Influize’s systems can track the number of followers gained for reporting purposes.
5.2 If Influize’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, Influize shall:
5.2.1 Not be liable for any costs, charges, or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.
5.2.2 Be entitled to payment of the charges despite any such prevention or delay.
5.2.3 Be entitled to recover any additional costs, charges, or losses that Influize sustains or incurs that arise directly or indirectly from such prevention or delay.
5.3 The Client acknowledges and agrees:
5.3.1 Unless otherwise agreed in writing by the Client is not buying followers or any other quantifiable growth. The fees payable under the agreement are for the Client to sponsor the campaign only. Influize therefore gives no guarantee as to the number of followers the Client will obtain as a result of the campaign.
5.3.2 No refunds shall be given once the campaign starts, and followers have been received to the Clients social media profile.
5.3.3 Influize accepts no responsibility for any followers that the Client loses after the campaign ending and the Client shall hold Influize harmless for any such loss of followers. All follower numbers tracked and delivered by Influize limited will be based on when the campaign starts and ends.
5.3.4 Influize is not responsible for any followers that do not engage with content on your profile.
5.3.5 Influize is not responsible in any way for anything related to the Client’s Instagram or other social media accounts. The Client shall remain wholly responsible for everything relating to the profile, including receiving more or less engagement, story views, likes and comments, or if the Client’s profile is suspended, deleted, or otherwise disabled.
5.3.6 Influize is not responsible for any followers received on the campaign and accepts no responsibility for the demographic (whether wrong or otherwise) that are received by the Client following the campaign.
5.3.7 If the Client creates a charge back with any payment providers used to pay (for example Stripe, Paypal, etc) this will be deemed a materially breach of contract. The full sum shall become payable by the Client. In these circumstances Influize will seek to take legal action against the Client to recover payment.
6. CHANGE CONTROL
6.1. If either party wishes to change the scope or execution of the Services, it shall submit details of the requested change to the other in writing.
6.2. If either party has made any request to make a change to the scope or execution of the Services, Influize shall, within a reasonable time, provide a written estimate to the Client of:
6.2.1. The likely time required to implement the change.
6.2.2. Any necessary variations to Influize’s charges arising from the change.
6.2.3. Any other impact of the change on this Agreement.
6.3. Unless both parties consent to a proposed change, there shall be no change to this Agreement.
6.4. If both parties consent to a proposed change, the change shall be made only after the agreement of the necessary variations to Influize’s charges, the Services, and any other relevant terms of this Agreement has been varied in accordance with clause 16.
6.5. If Influize requests a change to the scope or execution of the Services in order to comply with any applicable safety or statutory requirements, and such changes do not materially affect the nature or scope of, or the charges for the Services, the Client shall not unreasonably withhold or delay consent to it. Unless Influize‘s request was attributable to the Client’s non-compliance with the Client’s obligations, neither the Influize’s charges nor any other terms of this Agreement shall vary as a result of such change.
7. CHARGES AND PAYMENT
7.1. In consideration of the provision of the Services by Influize, the Client shall pay the charges as set out on our website, detailed on our Invoice, and in accordance with this clause.
7.2. The Client shall pay the total price in advance of the campaign. Influize may at their discretion agree to take a 20% deposit to secure the Client’s place, however the Client must pay the remaining balance within 72 hours of commencement of the campaign.
7.2.1 All deposits are non-refundable but may be used towards a place on a future campaign at Influize’s complete discretion.
7.3. Refunds will not be provided to Clients who drop out of a campaign part-way through.
7.4. The charges and payments by the Client exclude VAT, which Influize shall add to its invoices at the appropriate rate.
7.5. All payments are processed in United States Dollars (“USD”). The charges shall be paid in USD or unless otherwise agreed in writing by Influize. Where Influize agree to another currency, the price of the campaign shall be converted into the respective currency and presented to the Client.
7.6. Influize accepts BACS transfers and direct debit payments with all debit and credit cards and via PayPal, Stripe, Apple, and Google Pay.
7.7. All amounts due under this Agreement from the Client to Influize shall be paid in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law).
7.8. If Influize accepts a deposit and the Client fails to make full payment, Influize may suspend all Services until the remaining balance has been paid. Influize also reserves the right to terminate this Agreement if any money payable to them is not paid on the due date.
7.9. The parties agree that Influize may review and increase the charges from time to time and that a quote is only valid for the quoted campaign.
8. QUALITY OF SERVICES
8.1. Influize warrants to the Client that:
8.1.1. Influize will perform the Services with reasonable care and skill, and in accordance with generally recognised commercial practices and standards in the industry for similar services.
8.1.2. The Services will materially conform with all descriptions provided to the Client by Influize found in Schedule 1.
8.1.3. The Services will be provided in accordance with all applicable legislation from time to time in force, and Influize will inform the Client as soon as it becomes aware of any changes in that legislation.
8.1.4. The Client’s rights under this Agreement are in addition to the statutory terms implied in favour of the Client by the Supply of Goods and Services Act 1982 and any other statute.
8.1.5. The provision of this clause shall survive any performance, acceptance, or payment pursuant to this Agreement and shall extend to any substituted or remedial services provided by Influize.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Influize shall own all Intellectual Property Rights in existence as at the Commencement Date and which are created in the provision of the Services. Nothing in this Agreement is intended to transfer any title, right, or interest in such Intellectual Property Rights to the Client.
9.2. In relation to any claim (including threats) or dispute brought to the Client’s attention which relates to this Agreement or the Services, the Client shall:
9.2.1. Upon becoming aware, notify Influize of such a claim (including threats) or dispute.
9.2.2. Allow Influize (at Influize’s discretion) to conduct all negotiations and proceedings to settle the IPR’s claim.
9.2.3. Provide Influize with reasonable assistance regarding the IPR’s claim.
9.2.4. Not, without prior consultation with Influize, make any admission in relation to the IPR’s claim or attempt to settle it, provided that Influize considers and defends any IPR using competent counsel, and in such a way as not to bring the reputation of the Client into disrepute.
10.1. Both parties undertake that each shall not, at any time during this Agreement, and for a period of 5 years after termination of this Agreement, disclose to any person any In-put Material (in the case of Influize), Pre-existing Material (in the case of the Client), technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature, or any other confidential information concerning the disclosing party’s business or its products which the receiving party may obtain in connection with entering into this Agreement, except as permitted by clause 10.2.
10.2. Both parties may disclose Confidential Information:
10.2.1. To its employees, agents, consultants, or subcontractors (and in the case of Influize, Influize’s Team) as is needed for the purpose of discharging its obligations under this Agreement. The party in receipt of such information shall ensure that its employees, agents, consultants, or subcontractors to whom it discloses the Confidential Information, comply with this clause 10.
10.2.2. As may be required by law, a court of competent jurisdiction, or any governmental or regulatory authority.
10.3. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this Agreement.
10.4. All materials, equipment and tools, drawings, specifications, and data supplied by one party to the other, shall at all times be (and remain) the exclusive property of the party supplying such materials, equipment and tools, drawings, specifications, and data, but shall be held by the receiving party in safe custody at its own risk, and maintained and kept in good condition by that party until returned to the supplying party, and shall not be disposed of or used, other than in accordance with any written instruction or authorisation.
11. LIMITATION OF LIABILITY
11.1. Influize’s total liability under or in connection with this Agreement shall be limited to the greater of:
11.1.1. 150% the total value of this Agreement; or
11.2. This limit shall apply howsoever that liability arises, including, and without limitation, a liability arising by breach of contract, arising by tort (including, and without limitation, the tort of negligence), or arising by breach of statutory duty.
11.3. Nothing within this clause shall exclude or limit liability for:
11.3.1. Death or personal injury caused by negligence.
11.3.2. Fraud or fraudulent misrepresentation.
11.4. Influize will not be liable to the Client, whether in contract, tort, or restitution, or breach of statutory duty, or otherwise, for any:
11.4.1. Loss of profit.
11.4.2. Loss of goodwill.
11.4.3. Loss of business.
11.4.4. Loss of business opportunity.
11.4.5. Loss of anticipated saving.
11.4.6. Loss of corruption of data or information.
11.4.7. Loss of contracts.
11.4.8. Loss of use of money.
11.4.9. Loss of actual savings.
11.4.10. Loss of revenue.
11.4.11. Loss of reputation.
11.4.12. Ex gratia payments.
11.4.13. Loss of operation time.
11.4.14. Loss of opportunity.
11.4.15. Special, indirect, or consequential damage or loss suffered by the Client, arising under or in connection with this Agreement.
10.5 Nothing in this Agreement shall or shall not be deemed to relieve the Client of any common law duty to mitigate any loss or damage incurred by it.
12.1. Influize may terminate this Agreement with immediate effect by giving written notice to the Client if:
12.1.1. The Client fails to pay any amount due under this Agreement on the due date for payment and remains in default for more than 14 days after being notified in writing to make such payment.
12.1.2. The Client commits a material breach of any term of this Agreement where the breach is irremediable, or if such a breach is remediable, fails to remedy that breach within a period of 14 days.
12.1.3. The Client repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.
12.1.4. A petition is filed, a notice is given, a resolution is passed, or an order is made for or in connection with the winding up of the Client’s business activities.
12.1.5. An application is made to court (or an order is made) for the appointment of an administrator, or if notice of intention to appoint an administrator is given over the other party.
13. CONSEQUENCES OF TERMINATION
13.1. On termination of this Agreement for any reason, the Client shall immediately pay to Influize, all sums due and owing to it in connection with this Agreement.
13.2. If the client cancels the Agreement within 24 hours from the campaigns allocated time to go live, no refund will be available due to Influize being unable to fill the slow at this stage.
13.3. Both parties shall return, destroy, or otherwise deal with, any Confidential Information as the disclosing party shall wish for it to be dealt with.
13.4. On termination or expiry of this Agreement, the following clauses shall continue in force: clause 9, clause 10, clause 11, clause 13, clause 16, clause 18, clause 19, clause 20, clause 21, and clause 23.
13.5. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations, or liabilities of the parties that have accrued up to date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
14.1. If any Services are not supplied in accordance with Schedule 1 or Influize fails to comply with any terms of this Agreement, the Client shall be entitled (without prejudice to any other right or remedy) to require Influize to carry out such additional work as is necessary to correct its failure.
15. FORCE MAJEURE
15.1. A Force Majeure Event is any circumstance not within a party’s reasonable control. This includes, without limitation:
15.1.1 Acts of God such as flood, drought, earthquake, tsunami, or other natural disaster, epidemic, or pandemic.
15.1.2 War, or threat of or preparation for war (including terrorist attack, armed conflict, civil war, civil commotion, or riots).
15.1.3 Imposition of sanctions.
15.1.4 Nuclear, chemical, or biological contamination.
15.1.5 Sonic boom.
15.1.6 Fire, explosion, or accident (including collapse of building).
15.1.7 Interruption or failure of utility services.
15.2. Provided it has complied with this clause 15, if a party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the affected party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.3. The corresponding obligations of the other party will be suspended and its time for performance of such obligations extended to the same extent as those of the affected party.
15.4. The affected party shall:
15.4.1. As soon as practicable after the start of the Force Majeure Event, but no later than 7 Business Days from its start, notify the other party in writing of the event, the date on which it started, its likely or potential duration, and the effect of the event on its ability to perform any obligations under this Agreement.
15.4.2. Use reasonable endeavors to mitigate the effect of the event on the performance of its obligations.
16.1. No variation of this Agreement shall be effective unless it is in writing and signed by the parties or their authorised representatives.
17.1. A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach.
17.2. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy.
18. RIGHTS AND REMEDIES
18.1. The rights and remedies provided under this Agreement are in addition to and not exclusive of any rights or remedies provided by law.
19.1. If any provision or part provision of this Agreement becomes invalid, illegal, or unenforceable, this shall not affect the validity and enforceability of the rest of this Agreement.
19.2. If it comes to the attention of either party that any provision or part provision of this Agreement is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable.
20. AGREEMENT IN FULL
20.1. This Agreement, including any schedules and appendixes, constitutes the entire agreement between the parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and assurances between them, whether written or oral.
20.2. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties or constitute any party the agent of another party.
21. THIRD PARTY RIGHTS
21.1. No one, other than a party to this Agreement, shall have any right to enforce any of its terms. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999.
22.1. Any notice or other communication given to a party in connection with this Agreement shall be in writing, and shall be:
22.1.1. Delivered either by hand, by pre-paid first-class post, or by other next working day delivery service, at the receiving party’s postal address provided in this Agreement unless otherwise stated; or
22.1.2. Sent by email to email@example.com.
22.2. Any notice or communication shall be deemed to have been received:
22.2.1. If delivered by hand, at the time the notice is left at the proper address.
22.2.2. If sent by pre-paid first-class post, or by other next working day delivery service, at 9am on the second Business Day after posting.
22.2.3. If sent by email, at the time of the transmission, or if this time falls outside business hours in the place of receipt, when business hours resume.
21.3 This clause does not apply to the service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
23. GOVERNING LAW AND JURISDICTION
23.1. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes), shall be governed and construed in accordance with the law of England. We both agree that the courts of England will have exclusive jurisdiction.
BY USING OUR SERVICE THIS AGREEMENT YOU AGREE TO THESE TERMS AND CONDITIONS