INFLUENCER TERMS AND CONDITIONS

  1. INTRODUCTION
    1. Brand Influence CC (registration number: 2011/084678/23) with registered office is at Suite 704, The Point, 7th Floor, 76 Regent Rd, Sea Point, Cape Town, 8005 (“Brand Advisor” “us” “our”) is an influencer marketing company that engages with brands and influencers in connection with influencer marketing campaigns and related services.
    2. You (“you”) are about to register or are registered as an REALfluencer and wish to apply to participate in the Campaign.
    3.  By ticking “Accept” where indicated or submitting the Campaign Application you understand and agree that you shall be bound by these Terms and Conditions.
    4.  Please read these Terms and Conditions carefully as they contain important information about your rights and responsibilities as a REALfluencer in the Campaign.
  2. INTERPRETATION In these Terms and Conditions, unless inconsistent with the context, the following words and expressions shall bear the meanings assigned thereto and cognate words and expressions shall bear corresponding meanings:
    1. “Agreement” means the binding agreement between Brand Advisor and you which is made up of these Terms and Conditions together with the Deliverables Letter;
    2. “Brand” means the brand that Brand Advisor has been instructed to work with in relation to the Campaign as detailed in a Deliverables Letter;
    3. “Brand Advisor Materials” means any materials or information owned by or licensed to Brand Advisor and/or Brand that are provided to you in connection with this Agreement;
    4. “Campaign” means the influencer marketing campaign involving a Brand and you as detailed in each Deliverables Letter;
    5. “Campaign Application” means the application or survey completed or to be completed by you for the purposes of signing up to participate in the Campaign, which application will be in the form of a Recruitment or Opt-in Survey;
    6. “Campaign Term” means the duration of the Campaign as detailed in Campaign application and Deliverables Letter;
    7. “Content” means the social media content created and uploaded on Media by you in relation to the Campaign;
    8. “Deliverables Letter” means the statement of work provided to you by Brand Advisor if your Campaign Application is accepted, which shall include, without limitation:
      1. a Campaign Brief which will include the scope and details of the Campaign;
      2. the required Services in relation to the Campaign;
      3. the Campaign Period;
      4. the social media platform targets; and
      5. the dates on which you must upload your Content on your social media accounts;
      6. details relating to the REALfluencer incentive program as contemplated in clause ‎‎13 below;
      7. any other terms relevant to the Campaign.
    9. “Deliverables” means the proceeds of your Services as required in connection with each Campaign and as detailed in each Deliverables Letter, including but not limited to the creation of the Content and the uploading thereof on the Media;
    10. “Intellectual Property Rights” means any and all present and future, patents, trade secrets and other confidential information, trademarks, service marks, logos, emblems, insignia, identifying music and sounds, get-up, moral rights, performance rights, registered designs, copyrights, design rights and other intellectual property rights of whatever nature, in each case whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world.
    11. “Media” means any website, social media platform or place where the Content is posted and/or displayed including but not limited to those specific sites detailed in each Deliverables Letter;
    12. “Product” means the product(s) forming the subject matter of the Campaign;
    13. “REALfluencer” means an influencer with a registered account with Brand Advisor for the purposes of participating in influencer marketing campaigns;
    14. “REALfluencer’s Premises” means the physical address reflected in your Campaign Application;
    15. “Services” means the services that you are required to provide in connection with a Campaign (including but not limited to the provision of the Deliverables) as detailed in each Deliverables Letter;
    16. ”Term” means the Campaign Term;
    17. “Terms and Conditions” means these terms and conditions as read with Brand Advisor privacy policy available of the Brand Advisor website (www.brandadvisor.co.za);
    18. “Territory” means the Republic of South Africa.
  3. CAPACITY By submitting the Campaign Application, you warrant and represent that:
    1. you are at least 18; or
    2.  if you are younger than 18, you have your parents’ prior permission to participate in the Campaign. If you are a parent or guardian providing permission for a child younger than 18 to participate in the Campaign and to provide the Services, then you agree to accept full responsibility for that child’s participation in the Campaign and provision of such Services.
  4. CAMPAIGN APPLICATION
    1. In order to participate in the Campaign, you will need to complete and submit a Campaign Application. Brand Advisor is under no obligation to accept a Campaign Application submitted by you. If your Campaign Application has been accepted you will receive written confirmation of such acceptance from Brand Advisor.
    2. The Parties have agreed to work together in accordance with the terms and conditions contained herein as read with the Deliverables Letter.
    3. Should your Campaign Application be accepted by Brand Advisor, the Deliverables Letter will be delivered to you together with the Product to the REALfluencer Premises.
  5. DURATION OF OUR AGREEMENT This Agreement shall begin on the date set out in a Deliverables Letter and shall continue until the end of the Campaign Term unless terminated in accordance with clause ‎‎17.
  6. PRODUCT DELIVERY
    1. Brand Advisor shall deliver the Product together with the Deliverables Letter to you at the REALfluencer’s Premises. It is your duty to inspect the Product on receipt, and by signing the delivery note you shall be deemed to have confirmed receipt of the goods in good order, except to the extent of any damage thereto which is endorsed on the delivery note.
    2. In exchange for the Product, you shall provide the Services described in a Deliverables Letter subject to the terms of the Agreement.
    3. You agree that no other compensation of any kind shall be due to you for the performance of the Services.
  7. YOUR OBLIGATIONS
    1. You agree to co-operate with and act in good faith towards Brand Advisor and, where necessary, provide such materials including those Deliverables listed in the Deliverables Letter.
    2. You agree to keep the applicable page and/or profile on which the Deliverables are posted on the relevant Media accessible to the public (i.e., not private) for the duration of the Campaign Term as set out in the Deliverables Letter.
    3. You shall ensure that the Deliverables include such tags, links and titles as require by Brand Advisor in terms of the Deliverables Letter.
    4. You will need to register as a REALfluencer on the Brand Advisor website (www.brandadvisor.co.za), link your REALfluencer user  account with a valid Facebook, Instagram, YouTube, Twitter, TikTok or such other social media account as applicable (each such account, a “Third-Party Account”) and allowing Brand Advisor to access your (as applicable) Third-Party Account, as is permitted under the applicable terms and conditions that govern the use of each Third-Party Account, so that Brand Advisor can track performance of Deliverables in relation to the Campaign.
  8. WARRANTIES AND REPRESENTATIONS
    1. You warrant and represent that:
      1. you are able to provide the Services and that by doing so you will not be in breach of any obligation to or right of a third party;
      2. you have the necessary skills and knowledge to carry out the Services under this Agreement;
      3.  the Services shall be provided in accordance with the Deliverables Letter (and as otherwise set out herein) and such Services shall be provided with all due care, skill and ability;
      4. the manner in which the Deliverables are used on the Media will not have any adverse effect on Brand Advisor and/or the Brand;
      5. as of the date of commencement of the Term and for the duration of the Campaign Term, you have not and will not at any time commit any act or omission which brings, or is likely to bring, Brand Advisor and/or the Brand (at Brand Advisor and/or Brands sole reasonable discretion) into disrepute, scandal or embarrassment, including without limitation any connection with any criminal activity;
      6. the Deliverables will be your original work and creation and will be decent, honest and factual and will not include content that is unlawful, harmful, threatening, abusive, harassing, defamatory, offensive, vulgar, obscene, sexually-explicit, profane or hateful, or racially, ethnically or otherwise objectionable content of any kind, which content includes but is not limited to:
        1. any content that may fall within the scope of Section 9 of the Constitution of the Republic of South Africa, which prohibits discrimination on the grounds of, inter alia, race, sex, gender, marital status, religion; or
        2. any content that encourages conduct that would constitute a criminal offence or give rise to civil liability, or otherwise violate any applicable local, provincial, national, or international law; or
        3. any content that constitutes an invasion of privacy; or
        4. any content that is an infringement of any intellectual property right; or
        5. any content that contains software viruses; or
        6. any content that constitutes a political statement, commercial solicitation, or “Spam”;
        7. any content that is not compliant with the terms and conditions of the Media being used.
      7. where required and on Brand Advisor’s request, you shall provide Brand Advisor with full details of the performance of the Deliverables including but not limited to viewer engagements, likes, impressions and views;
      8. unless prevented by ill health or accident, you shall devote such time as is necessary to the carrying out of the Services as may be necessary for their proper performance;
      9. you shall not hire any third parties to provide services in connection with the Services;
      10. to the extent necessary in law, you shall obtain such licences, waivers or consents in respect of existing materials (excluding Brand Advisor Materials) incorporated into the Deliverables as shall be necessary in order that Brand Advisor and/or Brand can use the Deliverables for the purposes set out in this Agreement;
      11. you will advise Brand Advisor, as soon as reasonably practicable, in the event that you are unable to provide the Services due to illness, injury or other emergency.
    2. Brand Advisor warrants and undertakes that it shall be responsible for the management of and communication with the Brand and that it shall provide you with the Brand’s creative briefs in relation to the applicable Campaign and in connection with the Services.
  9. HONESTY
    1. You shall not misrepresent the size of your audience or the numbers of followers or engagement. Followers must be obtained organically and not through unethical behaviour, such as, but not limited to, purchasing followers, likes or engagement.
    2. In the event that Brand Advisor suspects that you are not complying with the provisions of clause  ‎9.1, Brand Advisor reserves the right to terminate this Agreement.
  10. CHANGES
    1. In the event that a Brand requires any change or alteration to the provisions of the Deliverables Letter, Brand Advisor shall provide you with written notice of any such change or alteration.  The Brand shall have the right to request any changes to the content of the Deliverables Letter that are reasonably required to bring the Deliverables / Services into scope of the Brand’s creative brief as applicable to the Campaign.
    2. Brand Advisor does not review Deliverables prior to you posting same on the applicable Media however Brand Advisor does reserve the right, in its sole discretion, to:
      1. request any amendments to Deliverables for any reason whatsoever, including but not limited to, the rectification of any inaccuracies (“Amendment Request”);
      2. request that Deliverables be removed from the applicable Media, for any reason whatsoever, including but not limited to those circumstances where the Deliverables, in Brand Advisor’s opinion, breach the provisions of this Agreement by you, including but not limited to clauses ‎7 and ‎8.1 (“Removal Request”), in such event, you shall be required to make such changes or remove the Deliverables, as the case may be, from the applicable Media within 6 hours of the Removal Request or the Amendment Request, as the case may be.
  11. UNAVAILABILITY OF INFLUENCERS In the event that you are unavailable or unwilling to provide the Services, you agree to inform Brand Advisor immediately and Brand Advisor will arrange for the Product to be collect from you, alternatively you will provide the Services during such other period as may be acceptable to Brand Advisor. Should Brand Advisor arrange for any courier to collect the Product from you, you shall reimburse Brand Advisor for the reasonable cost thereof
  12. COMPETITION. During the Campaign Period, you undertake not to market any products that compete with the Products or publish any Content for a brand that can reasonably be regarded as a competitor of the Brand.
  13. REALFLUENCER INCENTIVE
    1. The Deliverables Letter may include provisions relating to REALfluencer incentives (“REALfluencer Incentive”). In this event, subject to the terms and conditions contained in the Deliverables Letter, the REALfluencer who, in Brand Advisor’s sole opinion:
      1. has been the most active during the Campaign Term; and
      2.  produces the best performing Deliverables based on the relevant social media engagement generated by such Deliverables;
    2. The winner of the REALfluencer incentive is chosen at the discretion of Brand Advisor and no correspondence will be entered into.
  14. CONFIDENTIALITY To the full extent reasonably possible, each party agrees and undertakes to and in favour of the other party
    1. not to disclose any of the terms and conditions contained in this agreement to any third Person; and
    2. not to utilise or disclose to any third Person any trade secrets or confidential information of the other of them, which trade secrets or confidential information is not in the public domain, disclosed or made available to it under and by virtue of this Agreement and/or during the course of the implementation thereof, 
  15. INTELLECTUAL PROPERTY
    1. Unless otherwise agreed in a Deliverables Letter, Brand Advisor will own, exclusively and in perpetuity, all rights in and to the Deliverables created by you in terms of this Agreement and any and all Intellectual Property Rights thereto, including but not limited to the right to sub-license the Deliverables to the Brand. Notwithstanding the aforegoing, you may delete the Deliverables from the relevant Media after a period of 2 (weeks) following the expiry of the Campaign Period or such other period as may be provided for in the Deliverables Letter (subject always to the terms and conditions of the relevant Media platform)
    2. Any Intellectual Property Rights in Brand Advisor Materials provided by Brand Advisor and/or the Brand which shall remain the property of Brand Advisor and/or the Brand (as applicable).
    3. In the event that any right, title or interest in and to any of the Deliverables does not vest in Brand Advisor, for any reason, then you hereby grant to Brand Advisor and/or the Brand a perpetual, irrevocable, royalty-free, non-exclusive  and unrestricted licence to use, copy, reproduce, publicly display and exploit, in whole or in part, the Deliverables you provided on or through the applicable Media and for the purpose described in the Deliverables Letter in the Territory in any manner or format whatsoever, including but not limited to, print, broadcast or the internet.
    4. Notwithstanding any expiry or termination of any licence granted further to clause ‎15.3 above, you agree that Brand Advisor and/or the Brand may continue to use the Deliverables on a royalty free basis strictly for non-commercial purposes, including but not limited to intra-company, research, award, press, publicity, file and/or reference purposes.
    5. Where applicable, you acknowledge and agree that in order to promote you to our commercial network of brand and to maximise commercial opportunities available to you as a REALfluencer, we may use, in any and all media now known or hereafter devised, your approved name, picture, image, likeness, social media handle(s), avatar (s), signature, voice, and biographical information, as incorporated into the Deliverables and/or other social media content, in their original or modified form, provided always that such use is for non-commercial purposes and credits you in accordance with the terms of this Agreement.
    6. Brand Advisor grants you a non-exclusive royalty free licence to use the Brand Advisor Materials for all purposes relating to this Agreement and warrants that it is fully entitled to grant you these rights and that the Brand Advisor Materials are free of racist, defamatory, obscene and other legally restricted material.
    7. The provisions of clause 15.3 shall constitute a stipulatio alteri in favour of the Brand.
    8. Upon expiry and/or termination of this Agreement the provisions of this clause 15 shall continue to apply on or after such expiry or ending of the Agreement
  16.  YOUR PERSONAL INFORMATION For information about Brand Advisor’s data protection practices, please read the Brand Advisor Privacy Policy. You agree that Brand Advisor may process your personal information in accordance with the Brand Advisor Privacy Policy available on the Brand Advisor website (www.brandadvisor.co.za).
  17. TERMINATION
    1. Either party shall be entitled to terminate this Agreement upon the other party’s material breach unless the breaching party remedies such breach within fourteen (14) days of its occurrence.
    2. You may not terminate this Agreement during the Campaign Term (save for a proven material breach by Brand Advisor of a fundamental term of this Agreement).
    3. Neither party will be liable in any amount for failure to perform any obligation hereunder if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation, internet outages, pandemic, communications outages, fire, flood, war or act of God. In such circumstances the affected party shall be entitled to a reasonable extension of time for performing such obligations. If the period of delay or non-performance continues for a period of more than one (1) month, the party not affected may terminate the Term of this agreement by giving fourteen (14) days’ written notice to the affected party.
    4. Upon expiry and/or termination of this Agreement any term of this Agreement which is intended to survive the Term shall continue to apply on or after such expiry or ending of the Agreement.
  18.  LIMITATION OF LIABILITY 
    1. Brand Advisor shall never be liable to you or any third party for damages that arise from the content of any Deliverables.
    2. Brand Advisor shall never be liable to you for any loss of profits, reputation, business, goodwill or for any consequential damages.
  19. INDEMNITY You hereby indemnify and hold Brand Advisor or any of its employees, servant or agents harmless from any and all loss, injury, damage, and claims of whatsoever nature and description, sustained by Brand Advisor, arising from or connected with:
    1. the provisions of Services and/or use of the Deliverables or breach of any provisions of this Agreement by you; or
    2. any act, omission or statement made by you, at any time, that is not aligned with the Brand’s culture and adversely affects the reputation of the Brand.
  20. GENERAL
    1. You shall at all times act as an independent contractor and nothing contained herein, whether express or implied shall constitute Brand Advisor and you as employer/employee, company/agent, or create any partnership or joint venture whatsoever between them, nor will anything herein contained authorise you or Brand Advisor to incur any liability on behalf of the other of them.
    2. Except as specifically set out in this agreement, no addition to or variation, consensual cancellation or novation of this agreement and no waiver of any right arising from this agreement or its breach, cancellation or termination shall be of any force or effect unless reduced to writing and signed by all the parties or their duly authorised representatives.
    3. If any provision in this agreement is found to be unlawful, unenforceable or invalid or in conflict with any applicable present or future laws or regulation it shall be deemed to be separate and severable from the remaining provisions hereof and to the extent that same is unlawful, unenforceable or invalid, be deemed to be pro non scripto and the remaining provisions of the Agreement shall remain in full force and effect.
    4. You hereby choose as its domicilium citandi et executandi for all purposes arising out of these terms and conditions, the address set forth on the Campaign Application and undertakes to notify Brand Advisor forthwith in writing of any change of address.
    5. You shall not cede, assign, delegate or transfer the rights and/or obligations of this Agreement without the prior written consent of Brand Advisor.
    6. This Agreement shall be governed and construed in all respects in accordance with the laws of the Republic of South Africa and the Parties agree to submit to the exclusive jurisdiction of the courts of the Republic of South Africa.