Last Updated October 20, 2022
This Agreement provides terms and conditions applicable to your participation in the Money Manual Influencer Marketing Program (the “Influencer Program”) that are in addition to any terms and conditions that Client may have agreed to pursuant to another agreement with THE MONEY MANUAL. WHEREAS, THE MONEY MANUAL is in the business of creative and influencer marketing services, including, but not limited to, providing influencer marketing services on social media platforms and organizing promotional and other marketing opportunities and managing relationships; WHEREAS, Client is in the business of personal finance and sells student and auto loan refinancing, mortgages, personal loans, credit card, investing, and banking; WHEREAS, Client desires to retain THE MONEY MANUAL to provide influencer marketing services on social media platforms, in accordance with the level of service as set out in any applicable Insertion Order (the “Services”) and THE MONEY MANUAL accepts such appointment on the terms set out herein. NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1. “Social Media” means as any website, online application, or other form of electronic communication through which its users can create and share content, or which permits users to participate in social networking by sharing or viewing information, ideas, personal messages, and other content.
2. A “Social Media Platform” refers to any single Social Media provider, including, but not limited to, Facebook, TikTok, Twitter, Google+, Instagram, YouTube, Tumblr, Vimeo, Wikipedia, Pandora, LinkedIn, Kickstarter, Reddit, Pinterest.
3. “Social Media Presence” means the Client’s digital footprint on any Social Media Platform.
4. ”Influencer” is a blogger, personality, celebrity, or other individual engaged by THE MONEY MANUAL to post on Social Media Platform(s) for the purpose of this Agreement.
5. “Geo” means the country where the Services shall be provided as detailed in the relevant Insertion Order.
6. “Campaign(s)” means an influencer marketing campaign (or campaigns) promoting the goods or services of Client as detailed in each Insertion Order.
7. “Fees” means the applicable compensation in connection with a Campaign as set out in an Insertion Order Work Order and payable in accordance with Section 6.4 and Section 7 of the Framework Terms.
2. AGREEMENT
1. These Framework Terms for Influencer Services Framework Terms govern the overall relationship of the parties in relation to the services provided by THE MONEY MANUAL to the Client. The Parties have agreed a scope of services for a Campaign, as stated in the Insertion Order (“IO”) and Scope of Work (“SOW”).
2. The IO and SOW, together with these Framework Terms shall constitute one agreement between the Client and THE MONEY MANUAL (the “Agreement”). The terms of the IO and SOW shall control over any conflicting provisions in the Framework Terms. The Parties may also agree to further IOs which shall incorporate these Framework Terms, and the SOW may replace “IO” in these terms if an IO is absent.
3. The Parties each hereby represent and warrant as follows: (i) they have all requisite power and authority to enter into this Agreement; (ii) this Agreement has been duly and validly authorized by all necessary action on the part of THE MONEY MANUAL and the Client; and (iii) this Agreement has been duly executed and constitutes a legal, valid, and binding agreement, enforceable in accordance with its terms.
3. TERM
1. This Agreement shall commence on the date of the execution of the Insertion Order, with services being provided from the Start Date indicated in the relevant IO and SOW and shall continue for the duration of the Test Period with a minimum budget in place as described in the IO. The Test Period shall by default last for at least one (1) month, unless another duration is agreed by the Parties in the relevant IO, provided, however, that the Test Period may automatically end upon the Services meeting key KPIs agreed for this purpose by the Parties in the relevant IO. The Test Period may be extended as set out in clause 3(4).
2. After the Test Period, this Agreement shall automatically renew for consecutive three (3) month periods (“Rolling Term”, and together with the Test Period, the “Term”) with a minimum Fee budget in place as described in the IO, until such time as either Party terminates the Agreement by providing at least twenty-one (21)days written notice prior to the end of the applicable Rolling Term period. If a Party provides such written notice twenty (20) days or less prior to the end of the applicable Rolling Term period, the Agreement shall expire at the end of the next Rolling Term).
3. In the event that neither Party wishes this Agreement to continue beyond the expiry of the Test Period, then such Party shall provide the other Party with at least two (2) business days written notice before the scheduled end of the Test Period (the “Break Notice”). Should a party validly exercise a Break Notice then the Term of this Agreement shall automatically end at the end of the Test Period.
4. Any proposed Start Date or proposed duration of any Test Period will be accepted at THE MONEY MANUAL’s discretion and THE MONEY MANUAL reserves the right to pause or extend the Test Period in the event that any sums remain in the Test Period budget. Subject always to the foregoing and to clause 6(4), each of the Client and THE MONEY MANUAL may by written notice to the other delay the agreed end of the Test Period one time only. Changes to the Test Period for any other reason must be agreed by both parties in writing.
4. APPOINTMENT
1. The Client hereby appoints THE MONEY MANUAL to manage Client’s Social Media Presence for the duration of the Term as set out in the IO and THE MONEY MANUAL accepts such appointment.
2. THE MONEY MANUAL shall, at its own discretion, hires Influencer(s)to provides its Services, and THE MONEY MANUAL may act itself as an Influencer.
3. If THE MONEY MANUAL is retaining an Influencer to enhance Client’s Social Media Presence, the Client authorizes THE MONEY MANUALto negotiate and execute an agreement with such Influencer for THE MONEY MANUAL to perform its Services.
4. In consideration of the payment by Client to THE MONEY MANUAL of the Fees as set out in the Order Form, THE MONEY MANUAL agrees during the Term to procure the Services with reasonable and due care in accordance with and subject to these Framework Terms.
5. SERVICES
1. THE MONEY MANUAL shall provide the Services in accordance with the terms and subject to the conditions set forth in the relevant IO and to this Agreement.
2. THE MONEY MANUAL may provide content creation services as part of the Services(“THE MONEY MANUAL Content”).THE MONEY MANUAL shall retain all right, title, and interest in and to THE MONEY Content,subject to the license granted to Client under this Agreement.
3. If THE MONEY MANUAL engages an Influencer to promote Client’s products or services, THE MONEY MANUAL shall manage the Influencer, including making decisions on which Influencer shallbe part of the Campaign and which Social Media Platform(s) will be used.
4. THE MONEY MANUAL shall enter into a written agreement with Influencers that(a) sets forth requirements for the posts and the social media platforms to be used;(b) requires Influencers to disclose their material connection to Client clearly and conspicuously in their postings;(c) advises Influencers how to access the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials(the “FTC Guides”),and require Influencer to read the FTC Guides; (d) includes a copy of Client’s social media endorsement policy, if so provided by Client and; (e)includes a list of any claims about the products/services that Client has substantiated and has provided to THE MONEY MANUAL for distribution to Influencers.
5. During the term of any Influencer Campaign THE MONEY MANUAL shall monitor Influencers’ posts to ensure that all Influencers (i) disclose their material connection to Client clearly and conspicuously; (ii) do not make any unsubstantiated claims about Client’s products/services; and (iii) otherwise comply with Client’s social media endorsement policy, if available.
6. CLIENT’S OBLIGATIONS
1. Client will act in good faith towards THE MONEY MANUAL.
2. Client will cooperate with THE MONEY MANUAL in the creation of content for its Social Media Presence. and, where necessary and as THE MONEY MANUAL may request in order to carry out the Services in a timely manner, shall provide to THE MONEY MANUAL, in a timely fashion, material from which content may be created for Client’s Social Media Presence, including, but not limited to, logos, photographs, videos, event details, news articles, advertising and promotional materials from print and other media, and the like (collectively, “Client Materials”) and shall ensure that they are complete and accurate in all material respects. Such information must be provided in a digital format capable of conversion to a format usable on Social Media. To the extent that Client possesses brand manuals or other existing guidelines with regard to the [productor service. Client will provide such materials to THE MONEY MANUAL.THE MONEY MANUAL shall not be responsible for the return of Client Materials after their use for the purpose of the Services, unless Client specifically requests their return.
3. The Client covenants with THE MONEY MANUAL that it shall not partner with any other agency or influencer service provider providing performance and/or influencer services for the duration of the Term.
4. The Client shall ensure that proposed Start Dates are aligned with its marketing and app development schedules. Should the Client wish to request a change to Start Dates, the Client shall provide THE MONEY MANUAL with at least seventy-two (72) hours’ written notice prior to the agreed Start Date. Acceptance of any request shall be at THE MONEY MANUAL’s discretion, and without limitation an additional fee equal to 10% of the total Campaign Fee (including, for the avoidance of doubt, THE MONEY MANUAL’s Management Fee) shall be charged (i) if the Client fails to give the requisite prior notice of its first requested change; and (ii) in any case for the second and each subsequent change to the Start Date.
5. Subject always to clause 10, the Client shall provide THE MONEY MANUAL upon demand (and in any event within one week) with relevant install data (including organic install data) which shall be used by THE MONEY MANUAL solely for purposes of the Agreement, including but not limited to optimization and analysis of the Campaign.
6. The Client shall promptly respond to any THE MONEY MANUAL’s request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for THE MONEY MANUAL to perform the Services in accordance with the requirements of this Agreement.
7. FEES & CHANGE CONTROL
1. Fees of THE MONEY MANUAL may be, as detailed in the relevant IO, (a) based on views and impressions calculated at a cost per thousand (“CPM”) of a U.S. dollar amount as set in the applicable IO, tobe calculated and paid by the Client to THE MONEY MANUAL on a monthly basis, provided that the applicable CPM rate can be modified by THE MONEY MANUAL, at its sole discretion, to reflect prevailing market rates; (b) a Management Fee, as detailed in the relevant IO (the “Management Fee”) ; or (c) a combination of CPM and Management Fee.
2. Client shall pay THE MONEY MANUAL the Fees set out in the IO without deduction or set-off (with VAT) in accordance with the payment terms set out in the relevant IO. In the absence of such payment terms or any contrary term in the IO, (i) Client shall pay any amount due to THE MONEY MANUAL within seven (7) days of receipt of a valid invoice, and (ii) the Client shall pay 50% of the Fees due for the Test Period as an advance payment, which shall be payable immediately following the date of execution of the Agreement and (without limitation of THE MONEY MANUAL’s rights) must be received in cleared funds on or prior to the beginning of the Test Period. THE MONEY MANUAL shall not be obliged to commence the Test Period until receipt of this advance payment.
3. THE MONEY MANUAL shall be entitled to charge interest on any unpaid balance outstanding for thirty (30) or more days at the rate of 1.5% per month (or the highest rate allowed by applicable law, if less) until paid in full. Client shall also reimburse THE MONEY MANUAL for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
4. Without limitation of clause 4(3), THE MONEY MANUAL may charge additional Fees in accordance with its standard rates in the event of:
6. All and any Changes to the Services shall be reflected and accompanied by appropriate amendments to the Order Form and Fees and shall not become effective until a replacement IO is signed and dated by both parties. Until such point, THE MONEY MANUAL will continue to perform and be paid for the Services as if the Change had not been proposed.
7. All Fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. THE MONEY MANUAL shall be responsible for any taxes imposed on, or with respect to, THE MONEY MANUAL’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
8. UNAVAILABILITY OF INFLUENCERS
1. The engagement of Influencer(s)with respect to the Services shall be subject to Client’s prior written approval.
2. In the event that the Influencer(s) engaged by THE MONEY MANUAL is unavailable or unwilling to provide their services (outside the reasonable control of THE MONEY MANUAL), THE MONEY MANUAL will promptly inform the Client and will replace the Influencer with a suitable alternative, having the skill to replace Influencer, with the Client’s prior written approval.
9. NON-SOLICITATION
1. The Client understands and acknowledges that THE MONEY MANUAL has expended and continues to expend significant time and expense in selecting its Influencers and that the loss of any such Influencer relationship or goodwill will cause significant and irreparable harm to THE MONEY MANUAL. In order to protect the legitimate business interests of THE MONEY MANUAL, the Client agrees and covenant not to directly or indirectly solicit, or attempt to solicit, hire, or accept the offer of services of an Influencer providing Services hereunder in the United States without THE MONEY MANUAL’s prior written approval, for the duration of the Term as set out in this Agreement and for a period of twelve (12) months following the termination of this Agreement. This non-solicitation clause explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, TikTok, Facebook, LinkedIn, Instagram, and Twitter, and any other social media platform, whether or not in existence at the time of entering into this Agreement. For the avoidance of doubt, this includes both the direct and indirect solicitation or acceptance of Influencer services through both offers for paid collaboration and offers made by any business which is similar to and in competition with THE MONEY MANUAL.
2. Should the Client breach its obligations under clause 9(1), THE MONEY MANUAL may (in addition to any other remedy that may be available to it) seek (a)a decree or order of specific performance to enforce the observance and performance of such covenant and (b) an injunction restraining such breach or threatened breach.
10. CONFIDENTIALITY
1. From time to time during the Rolling Term and during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section 10by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law.
2. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
11. INTELLECTUAL PROPERTY
1. Subject to the remainder of this Section11, the relevant Influencer, whether or not THE MONEY MANUAL is the relevant Influencer, will retain all right in the content created by it in the provision of the Services, excluding any content or intellectual property provided by THE MONEY MANUAL and/or the Client (“Influencer Contribution”).
2. The Client agrees that the relevant Influencers only obliged to keep the Influencer Contribution on the Social Media Platforms, in the Geo and for the Term as set out in the relevant IO. Following the expiry of the Term, the Influencer Contribution may be removed.
3. The Client shall grant THE MONEY MANUAL a non-exclusive, limited, royalty-free, worldwide license to use and display Client’s name, logo and trademarks, and any other content in connection with an IO, in the form and manner specifically described in the applicable IO for all purposes relating to this Agreement (the “Client Intellectual Property) and warrants that it is fully entitled to grant THE MONEY MANUAL these rights and that such content is free of racist, defamatory, obscene and other legally restricted material.
4. THE MONEY MANUAL shall have the right to sublicense the Client Intellectual Property, but only to the relevant Influencer and solely as necessary for the relevant Influencer to perform its obligations under this Agreement and only during the Term hereof, unless otherwise expressly authorized herein.
5. If an Order Form indicates that the Client may use the Influencer Contribution on its own channels then subject to the Client paying THE MONEY MANUAL the Fees, it is the intention of the parties that Client should hold a license for such Influencer Contribution. Therefore, upon receipt by THE MONEY MANUAL of the Fees, THE MONEY MANUAL shall procure that the Influencer grants to the Client a non-exclusive license to use of the Influencer Contribution for the purpose described in the IO in the Geo and on the Social Media Platform(s)set out in the IO and only for the Term.
6. THE MONEY MANUAL shall use reasonable efforts to procure that the Influencer Contribution does not infringe the copyright, trademark right, or right of publicity of any third party.
7. The Client is expressly forbidden from using the Influencer Contribution in connection with any racist, defamatory or obscene material (including, without limitation, pornographic material) or other legally restricted material.
8. Client shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials and Client Intellectual Property, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of any jurisdiction throughout the world therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
12. INDEMNIFICATION
Client shall defend, indemnify, and hold harmless THE MONEY MANUAL, and its officers, directors, managers, members, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), arising out of or resulting from any third-party claim alleging: (a) breach by Client of any representation, warranty, covenant, or other obligations set forth in this Agreement; (b)gross negligence or more culpable act or omission of Client (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; and (c)that any Client Materials or Client Intellectual Property or THE MONEY MANUAL’s receipt or use thereof in accordance with the terms of this Agreement infringes any intellectual property right or any other right of a third party.
13. TERMINATION
1. Either party shall be entitled to terminate this Agreement upon the other party’s material breach (including without limitation non-payment of any sum due) unless the breaching party remedies such breach within fourteen (14) days of its occurrence.
2. 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, communications outages, cyberattacks (or threats thereof), fire, flood, war or act of God. However, the Party whose performance is so delayed must use good faith efforts to minimize the effects of such delay and resume performance as soon as practicable.
3. Client may not cancel its order of the Services or otherwise terminate this Agreement (save for a proven material breach by THE MONEY MANUAL of a fundamental term of this Agreement) at any time without payment of the Fees in full.
14. LIMITATION OF LIABILITY
1. Subject to Clause 14.2 below, THE MONEY MANUAL’s liability to Client for any loss or damage direct or otherwise caused whether in tort (including negligence), contract or otherwise shall not exceed the Fees invoiced by THE MONEY MANUAL to Client for the Services under the IO to which such liability relates.
2. Neither party shall be liable to the other party for any indirect or consequential loss or damage.
3. When instructions or advice are given or received orally by THE MONEY MANUAL, it shall have no liability to Client for any misunderstanding or representation which may arise in relation thereto except in relation to fraudulent misrepresentations.
4. THE MONEY MANUAL shall have no liability to Client in respect of the Client Materials, provided that THE MONEY MANUAL adheres to any restrictions with the Client Materials as notified by Client to THE MONEY MANUAL prior to the Client Materials being delivered.
5. Client acknowledges that Campaign planning is predicated on both the Campaign and the Client’s products and services being permitted under the terms of service of TikTok or any other platform on which the Campaign is to be carried out from time to time (“Terms of Service”). The Agreement has been entered into by the Client subject to the risks arising from a change in the Terms of Service and such a change shall not vitiate the Agreement or relieve Client of its obligations. In the event of a change to the Terms of Service which renders it impossible or impracticable to complete the Campaign as planned, (i)THE MONEY MANUAL’s only obligation will be to use all reasonable commercial efforts to deliver Services equivalent to the agreed Campaign (which may include making changes to the content, Campaign structure, choice of influencers and/or the platforms used); and (ii) the Client shall not be entitled to the return of any advance payments or deposits or be relieved of its obligation to pay for all influencer content already created, together with any associated management fees.
15. NO OTHER WARRANTIES EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEEMENT THE MONEY MANUAL HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
16. CLIENT’S PRODUCTS
1. Client shall be responsible for and notify THE MONEY MANUAL of all and any applicable rules, regulations, codes of practice and laws relating to marketing or advertising of the Client Materials or the Client’s goods/services.
17. GENERAL
1. The Parties understand that THE MONEY MANUAL is an independent contractor with respect to Client, and this Agreement creates no agency, partnership or joint venture relationship between the Parties. The Parties agree that no employee or contractor of THE MONEY MANUAL will be an employee of Client. Neither Party shall have express or implied authority to act on behalf of or make any representations whatsoever on behalf of the other.
2. Client understands that THE MONEY MANUAL has other clients and that THE MONEY MANUAL may offer similar Services to other clients. THE MONEY MANUAL retains the right to perform the same or similar type of services for third parties, including, but not limited to, for third parties in client’s industry during the Rolling Term and during the Term.
3. Except as specifically set forth herein, this Agreement may be amended or terminated only by a written instrument executed by an authorized representative of each Party.
4. If any provision of this agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions in this agreement shall remain in full force and effect.
5. The failure of either party to demand strict performance by the other party of any term of this Agreement shall not be construed as a waiver of such term and either party may at any time demand strict performance by the other party of such term.
6. Neither Party may assign this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the other Party’s prior written consent.
7. During the Term of this Agreement and for the twelve (12) month period following termination, neither Party shall solicit any of the other’s employees involved in the Services to consider alternate employment.
8. This Agreement shall be governed and construed in accordance with the laws of the State of New York, without giving effect to principles of conflict of law and any dispute arising in connection with this Agreement will be tried in a federal or state court of law in New York County, New York. To the fullest extent permitted by law, each party hereby expressly waives (on behalf of itself and on behalf of any person or entity claiming through such party) any right to a trial by jury in any action, suit, proceeding or counterclaim of any kind arising out of or in any manner connected with this Agreement or the subject matter hereof to the fullest extent permitted by law.