Influencer Agreement

What is an influencer agreement?

An influencer agreement can be used by a business/brand to engage the services of an influencer. An influencer is an individual who uses social media and online platforms in order to influence and encourage other internet users to buy the goods and services of the brand.

What are the different types of influencer agreements?

An influencer may be instructed to:

• complete a single project
• complete several ongoing projects as and when required by the brand

Is it mandatory to have an influencer agreement?

No. It is not mandatory to have a written influencer agreement. However, it can be helpful to have a written agreement so that each party sufficiently understands their rights and obligations in relation to the arrangements.

What does intellectual property mean?

Intellectual property is something that is created by a person's mind. Intellectual property can include:

• trademarks – names logos and jingles
• designs – the appearance/shape of a product
• copyrights – such as writing and artistic work and content
• patents – inventions and products

An influencer agreement will need to address the matter of any intellectual property owned by each party and how the other party may use that property without taking ownership of it. This is achieved by granting a licence.

What is not allowed in an influencer agreement?

It is not possible to exclude certain types of liability* in an influencer agreement. In particular, it is not possible to exclude liability for the following:

• any breach of the relevant legal provisions about the title of any goods involved in the agreement (the brand owner's right to sell any relevant goods)
• defective products as defined by law
• death or personal injury caused by negligence
• fraud or fraudulent misrepresentation

Liability means the legal responsibility of a party for something. If a party's liability is successfully excluded in relation to a particular issue, this means that they will have no legal obligations concerning that matter, including no requirement to pay legal damages.

What are the prerequisites of an influencer agreement?

Discussions and negotiations will generally have taken place prior to the influencer agreement commencing. The brand may wish to make use of a letter of intent when making an offer or discussing the proposed terms.

Who can enter into an influencer agreement?

The brand owner can be:

• a sole trader
• a company
• a LLP
• a partnership

The influencer will be an individual natural person. A natural person who is entering into a legal agreement should have full capacity (meaning that they are of sound mind). Generally speaking, they should be over the age of 18*.

Entering into a contract with a child is complex, and specialist advice should be sought in those circumstances.

What can be the duration of an influencer agreement?

The agreement will be fixed for a specific term, as agreed between the parties. Typically this will be between 6 months to 3 years.

The agreement will provide a clause to explain how the agreement may be terminated before the expiration of the term.

What must be done once the influencer agreement is ready?

Once the influencer agreement is ready, each party should sign the agreement. Each party should retain a copy that contains the signatures of both parties.

What documents should be attached to the influencer agreement?

A template project brief will be attached to the agreement, which should be completed so that the influencer has instructions for the project which must be undertaken as part of the agreement.

Are the services provided by influencers regulated?

Marketing and advertising carried out by influencers is overseen and regulated by:

• The Advertising Standards Authority's (ASA)
• The Committee of Advertising Practice (CAP)
• The Competition and Markets Authority (CMA)

What happens if a party does not adhere to the terms of an influencer agreement?

If one party breaches the terms of an agreement the other party may wish to:

• send a formal warning to the other party
• terminate the agreement
• consider sending a letter before proceedings
• make a court claim in the Civil Court

What should an influencer agreement contain?

An influencer agreement should:

• confirm the parties to the agreement
• summarise the agreed definitions that will apply to the agreement
• define the start date and the duration (term) of the agreement
• define the services to be provided by the influencer – the projects which they must carry out under the agreement
• define how the influencer will be renumerated for completing the projects
• grant appropriate licences in relation to any intellectual property
• explain any types of liabilities that may be excluded or limited
• explain how and in what circumstances the agreement may be terminated

What laws apply to an influencer agreement?

The Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277 is the main legal provision which governs the advertising activities of brands.

The Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 and the Consumer Protection Act 1987 may apply to any connected goods and services.

Where the content created falls within the Advertising Standards Authority's (ASA) definition of an advertisement, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing ('CAP Code') will apply.

The Online Safety Act 2023 is due to come into effect in 2024, which will be relevant to the activities of influencers online.

The Unfair Contract Terms Act 1977 will apply to the contract.

The agreement will also be subject to the general laws of contract.

Help from a lawyer

You can choose to consult a lawyer if you need help.

The lawyer can answer your questions or help you through the process. You will be offered this option when you complete the document.

How to modify the template?

You fill out a form. The document is created before your eyes as you respond to the questions.

At the end, you receive it in Word and PDF formats. You can modify it and reuse it.