Ghost Media Representation Agreement
Effective Date: July 2018
IMPORTANT — THIS AGREEMENT (“AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) ("YOU" or "YOUR") AND GHOST MEDIA INC. (HEREINAFTER "COMPANY," "WE", "AGENT", "US" OR “OUR”) THAT sets forth the legal terms and conditions for your use of www.Ghostmediainc.com and any other website owned and operated by Company (the "Website(s)") and Company services, including any software, COMPANY mobile applications (the "APP(s)") or other services offered by Company from time to time and other PRODUCTS OR services offered BY third parties USING Company functionality (collectively, "Service(s)").
The following constitutes the Agreement between Ghost Media (hereinafter “Agent”) and the performing Influencer "You" (hereinafter “Influencer”), effective upon successful completion of digital signature and credit card authorization, also referred to as "Sign Up".
WHEREAS Influencer desires Agent to provide management and promotion and to obtain Agent’s coordination, assistance and guidance, as defined herein, in the development of activation opportunities, as defined herein;
WHEREAS the nature and extent of the success or failure of the development and awareness of Influencer cannot be predetermined, and it is therefore the desire of Influencer that Agent’s compensation be determined in such manner as will permit Agent to accept the risk of failure and likewise benefit to the extent of the success of Influencer; and
WHEREAS Influencer wishes to appoint Agent, and Agent accepts such appointment, as the sole and exclusive Agent and personal representative of Influencer with respect to the Digital Marketing Industry, as defined herein, throughout the Territory, as defined herein, and the parties now desire to memorialize the terms of their agreement in writing,
NOW, THEREFORE, for and in consideration of the foregoing recitals and the terms, conditions, and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DESCRIPTION OF AGENT’S SERVICES:
a. Influencer hereby retains Agent to advise, assist, counsel, and guide Influencer in connection with all matters relating to Influencer’s digital marketing activities. Such services shall include, but shall not be limited to, advising, assisting, counseling, and guiding Influencer with regard to scheduling, travel, and management; the professional development of Influencer’s brand awareness and exposure to brand activation. Incidentally to Agent’s services, Agent further agrees to assist Influencer in procuring activation opportunities, brand partnerships and both paid and barter based opportunities. Primarily, the Agent will perform the following duties:
i. Inbound: Prompt responses, negotiation, coordination and execution of digital marketing activation opportunities that are sent directly to the Influencer via the Agent’s contact information.
ii. Client Portfolio: Introduction and proposition of Influencer to Agent’s client base for barter and paid activation opportunities.
iii. Brand Partnerships: Inclusion of Influencer in brand partnership and activation opportunities pitched to the Agent.
b. Influencer acknowledges that Agent’s services to Influencer hereunder are non-exclusive and that Agent may represent any other Influencer, performer, group, or individual, in any field, regardless whether any such Influencer, performer, group, or individual is in competition at any time with Influencer, and engage in any other activities without limitation whatsoever as Agent in Agent’s sole discretion shall decide.
c. Influencer shall not, without Agent’s prior consent, engage any other party to render any services of the kind required of Agent hereunder or which Agent is permitted to perform hereunder.
2. TERM: Influencer hereby irrevocably engages Agent as aforesaid for a period (hereinafter “Term”) of 1 year, commencing on the effective date above-written, subject to the terms of this Agreement. Upon expiration of the initial 1 year Term, and annually thereafter, the Term shall be extended automatically for one (1) additional year (hereinafter “Contract Year”) unless written notice to the contrary is given by either party at least sixty (60) days prior to the end of the then current Contract Year. Either party may terminate this agreement at anytime with a least thirty (30) days written notice.
3. TERRITORY: The term “Territory” as used herein shall refer to Influencer’s appointment of Agent as the sole and exclusive Agent and personal representative of Influencer with respect to the Industries throughout the following geographic territories and regions: United States, Europe, Canada & Asia.
4. INFLUENCER’S DUTIES AND RESPONSIBILITIES
a. Throughout the Term of this Agreement, Influencer agrees to promptly inform Agent of any booking offers submitted outside said Agent’s contact information, or prospects with respect to Influencer’s engagements throughout the Territory and will refer any inquiries concerning Influencer’s engagements to Agent.
b. In the event the Agent secures an activation on behalf of the Influencer, who has agreed to participate in the activation and all its requirements, the Influencer will deliver the agreed number of posts on the agreed platforms on behalf of the Agent according to the delivery schedule specified by the Agent. The Services shall conform to the specifications and instructions of the Agent as outlined in detail, abide by the rules of the relevant social media platforms, and are subject to the Agent's acceptance and approval.
c. The Influencer agrees to avoid mentioning any and all agreed upon competitors of The Agent. The Influencer agrees to abide by all guidelines set in the Brand Rule Guidelines set forth by Clients. (For example, all blog posts, social media statuses, tweets, and/or comments should be in good taste and free of inappropriate language and/or any content promoting bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age).
d. Upon the execution of this Agreement, and thereafter throughout the Term of this Agreement and promptly upon the request of Agent, Influencer shall provide Agent with the following: (i) a current schedule of fees customarily charged by Influencer for its engagements; (ii) all technical requirements; (iii) copies of contracts; (iv) any union or labor agreements; (v) Influencer’s per diem requirements; (vi) all photos, brochures, press kits, or materials which Agent deems necessary, in Agent’s sole discretion, for Agent to effectively represent the Influencer.
e. Material disclosures and compliance with FTC Guidelines. When publishing posts/statuses about the Agent’s products or services, the Influencer must clearly disclose his/her “material connection” with the Agent, including the fact that the Influencer was given any consideration, was provided with certain experiences or is being paid for a particular service. The above disclosure should be clear and prominent and made in close proximity to any statements that the Influencer makes about the Agent or the Agent’s products or services. Please note that this disclosure is required regardless of any space limitations of the medium (e.g. Twitter), where the disclosure can be made via Hashtags, e.g. #sponsored. The Influencer’s statements should always reflect the Influencer’s honest and truthful opinions and actual experiences. The Influencer should only make factual statements about the Agent or the Agent's products which the Influencer knows for certain are true and can be verified.
5. AGENT’S COMMISSIONS:
a. In addition to all other rights and payments to which Agent is and shall be entitled under this Agreement, as compensation for Agent’s covenants and services, Agent is and shall be entitled to receive from Influencer, or directly from third parties, pursuant to the terms of this Agreement, during the Term of this Agreement, commissions (hereinafter “Commissions”) on Influencer’s gross earnings (as hereinafter defined) as follows:
i. 25% of all financial and transactional gross earnings for digital media endorsements (including but not limited to Instagram, Facebook, YouTube, Blog, SMS and other media).
ii. $250 per month for up to 5 hours of coordination for non barter based influencer activation opportunities. This fee will be waived so long as influencer is capable of producing and maintaining at least $1,000 in paid gross activations each month.
b. In the event Agent’s commissions are not paid within fifteen days of when due and owing, Influencer agrees to pay interest on all such outstanding commissions in the amount of 1 1/2% per month (18% per year). Notwithstanding the termination provisions of Section 2 of this Agreement, Agent reserves the right to terminate this Agreement at any time for nonpayment of any commissions.
c. Following the termination of this Agreement, regardless of the reason for such termination, Agent shall continue to be entitled to all applicable commissions pursuant to the terms of this Section 7. Influencer’s failure during the Term to continue to seek Agent’s services shall not in any manner affect Influencer’s obligation to pay Commissions and other monies to Agent as set forth herein.
6. ACCOUNTINGS AND PAYMENTS:
a. Agent shall account to Influencer within thirty (30) days after the close of each month specifying all gross compensations or other considerations received by Agent on behalf of Influencer, describing the sources thereof, and specifying all deductions made therefrom, including, but not limited to, all expenses incurred and expended on behalf of the Influencer, Agent’s commissions, and any loans or advances paid by Agent to Influencer or on Influencer’s behalf. Such accounting shall be accompanied by a payment to Influencer of the net sum shown to be due to the Influencer for the applicable accounting period.
b. Upon Agent’s request, Influencer shall render a written accounting statement to Agent setting forth the amount of gross compensations or other considerations, if any, received by Influencer or on Influencer’s behalf, directly or indirectly, and to pay Agent’s commission in connection with such gross compensations or other considerations as well as any and all other sums payable to Agent in according with the terms of this Agreement.
c. Either party shall have the right to audit the other party’s books and records as they relate to the subject matter hereof not more than once per year and not more than once in connection with any statement rendered hereunder. Such audit shall be conducted at the cost and expense of the auditing party by an independent certified public accountant on at least thirty (30) day’s prior written notice and shall be conducted during normal business hours at the location where such books are regularly maintained.
7. INFLUENCER’S WARRANTIES:
a. Influencer warrants and represents that: (i) Influencer is not a minor; (ii) Influencer has the full right, power and authority to enter into this Agreement and to grant all rights granted herein; (iii) Influencer is not under, nor will Influencer be under during the Term of this Agreement, any disability, restriction or prohibition with respect to the rights to fully perform in accordance with the terms and conditions of this Agreement and that there shall be no liens, claims or other interests which may interfere with, impair or be in derogation of the rights granted herein; (iv) Influencer is not (and will not so become during the Term of this Agreement) under contract to any other personal Agent in the Territory of this Agreement; (v) the rights granted under this Agreement will not violate or infringe upon any common law or statutory right of any person, firm or corporation including, without limitation, contractual rights, copyrights, and rights of privacy; (vi) Influencer owns or controls 100% of the rights granted under this Agreement; and (vii) Influencer has not heretofore made and will not hereafter enter into or accept any engagement, commitment or agreement with any Party which will, can or may interfere with the full and faithful performance of the covenants, terms and conditions of this agreement or interfere with Agent’s full enjoyment of Agent’s rights and privileges hereunder.
b. Influencer hereby represents and warrants that Influencer shall pursue diligently and faithfully the career of Influencer to the best of the ability of Influencer, to do all things necessary and desirable to promote such digital marketing opportunities and maximize earnings therefrom and to refrain from unlawful or offensive conduct.
c. Influencer understands and agrees that Influencer shall provide all services required of Influencer by Agent, and otherwise fully cooperate with Agent in all respects, in and in connection with the performance of Agent’s services under this Agreement.
d. The representations and warranties of this Section shall survive termination of this Agreement, regardless of the reason for such termination.
8. INDEMNIFICATION: Influencer shall indemnify and hold harmless Agent and Agent’s successors, distributors, sub-distributors and assigns, and the respective officers, directors, agents and employees of each of the foregoing, from and against any claims, loss, damages, injuries, liabilities, costs and expenses, including reasonable attorneys' fees and court costs actually incurred, resulting from or arising out of, wholly or in part: (a) any breach of any representation or warranty made by Influencer under this act or omission of Influencer, its agents, subcontractors, members or employees; and (c) personal injury, death, property loss or damage resulting from or arising out of any live performance or personal services of Influencer; and (d) any claim that any of the existing media and publicity materials of Influencer, or which Influencer directs Agent to use in the performance of Agent’s services, infringes any intellectual property rights or other rights of any third party. The express obligation shall include, without limitation, all liability, damages, loss, claims, and actions on account of libel, defamation, invasion or privacy or right of publicity, or infringement of copyright or trademark. In the event Influencer fails to reimburse or indemnify Agent, Agent may, in addition to its other rights, deduct such payments from any and all gross earning received by Agent hereunder. The indemnification provisions of this Section shall survive termination of this Agreement, regardless of the reason for such termination.
9. TERMINATION: At Agent’s sole discretion, and without limiting Agent’s rights, Agent shall have the right to suspend the operation of this Agreement, if for any reason whatsoever Influencer is unwilling for a period of thirty (30) consecutive days to render Influencer’s services and provided further that Agent has given Influencer written notice of such unwillingness and Influencer has failed to cure such unwillingness for a period of thirty (30) days. Such suspension shall commence upon written notice to Influencer and last for the duration of any such unavailability or unwillingness to render services.
At Agent’s election, a period of time equal to the duration of such suspension shall be added to the Term of this Agreement, provided that in no event shall any such suspension cause the Term to run longer than seven (7) years from the date of this Agreement. In addition, if Influencer fails to render Influencer’s services as aforesaid, Agent may, in addition to other remedies provided for herein, terminate this Agreement upon written notice to Influencer. Notwithstanding the foregoing, Influencer understands that Agent has the right, in Agent’s sole discretion, to terminate this Agreement at any time, for any reason, by serving written notice to Influencer. Furthermore, Influencer may elect to terminate this agreement with sixty (60) days written notice. Should any pending activations, coordinations or opportunities during the active term ultimately be completed after such termination, the Agent will be entitled to any and all fees and compensation.
10. WORK PERMITS, VISAS, AND LICENSES: Unless otherwise agreed upon by the parties, Influencer will provide, at Influencer’s sole expense, all necessary visas, work permits, licenses, customs clearances, and other authorizations for Influencer’s performances, including performance rights, licenses, and rentals.
11. ENFORCEMENT THROUGH INJUNCTION: Influencer understands
and agrees that, upon a breach of the provisions appointing Agent as the sole and exclusive Agent and personal representative of Influencer with respect to Digital Marketing throughout the Territory, Agent’s interests will be irreparably injured, the full extent of Agent’s damages may be impossible to ascertain, monetary damages will not be an adequate remedy for Agent, and Agent will be entitled to enforce this provision by an injunction or other equitable relief without the necessity of posting bond or security, in addition to its right to seek monetary damages or any other remedy. Influencer agrees that Agent may notify any future or prospective employer or third party business with which Influencer may contract of the existence of this Agreement.
12. RIGHT TO CURE: No failure by Agent to perform any of Agent’s obligations hereunder shall be deemed a breach hereof, unless Influencer gives Agent written notice of such failure and Agent fails to cure such nonperformance within thirty (30) days after the date of such notice.
13. FORCE MAJEUR: If the performance of any of the covenants of this Agreement by Agent or Influencer shall be prevented, interrupted, delayed or suspended by any Act of God, the acts or regulations of public authorities, labor difficulties, union strike, civil tumult, war, acts of terrorism, epidemic, interruption or delay of public transportation services, or any other cause beyond the reasonable control of Agent or Influencer, either party may suspend this Agreement without any liability on either part and each shall be relieved of any and all of its obligations hereunder with respect to the period during which such performances are so prevented.
14. NOTICES: All notices hereunder shall be sent certified mail, return receipt requested, or delivered by hand to the applicable address set forth below unless and until written notice, via registered mail, to the contrary is received by the applicable party.
If to Agent: 4500 Park Granada #202, Calabasas, CA 91302
If to Influencer: "Will utilize address information provided on billing unless informed otherwise."
Notwithstanding the foregoing, all accounting statements and payments may be sent by regular mail. Except as required by law, the date of mailing of such notice shall be deemed the date upon which such notice was given or sent.
15. INDEPENDENT CONTRACTOR: Influencer shall be an Independent Contractor and not an employee, partner, or joint venturer of or with Agent. Agent shall not withhold on behalf of Influencer any sums for income tax, unemployment insurance, social security or any other withholding or benefit.
16. ASSIGNMENT: This Agreement may not be assigned by the Influencer. However, Agent may assign this Agreement.
17. MISCELLANEOUS PROVISIONS: (a) This Agreement constitutes the entire Agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. (b) Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. (c) As used in this Agreement, the word “Influencer” shall include any corporation owned (partially or wholly) or controlled (directly or indirectly) by Influencer, and Influencer agrees to cause any such corporation to enter into an agreement promptly with Agent on the same terms and conditions are as are contained herein. (d) As used in this Agreement, “Person” or “Party” shall mean any individual, corporation, partnership, association or other organized group of persons or legal successions or representative of the foregoing. (e) Monies to be paid to Influencer under this agreement will not be assignable by Influencer without Agent’s consent, which it may withhold in its unrestricted discretion. (f) Any controversy or claim arising out of or relating to this Agreement or any breach thereof shall be settled by arbitration in accordance with the Rules of the American Arbitration Association. The parties select expedited arbitration using one arbitrator as the sole forum for the resolution of any dispute between them. Such arbitrator shall be experienced in performing arts and entertainment matters. The arbitrator may make any interim order, decision, determinations, or award he deems necessary to preserve the status quo until he is able to render a final order, decision, determination or award. The determination of the arbitrator in such proceeding shall be final, binding and non-appealable. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to reimbursement for costs and reasonable attorney's fees. (g) The laws of the State of New York shall govern the construction and interpretation of this Agreement. If any of the provisions of this Agreement shall contravene, or be invalid under, the laws of the State of New York, such contravention or invalidity shall not invalidate the entire agreement, but it shall be construed as if not containing the particular provision or provisions held to be invalid, and the rights and obligations of the parties shall be construed and enforced accordingly. (h) The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as thereafter waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. (i) The parties hereto stipulate and agree that the rule of construction to the effect that any ambiguities are to be or may be resolved against the drafting party shall not be employed in the interpretation of this Agreement to favor any party against another. (j) In the event that either party files any legal action to enforce any of the provisions of this Agreement, the unsuccessful party shall pay to the successful party, in addition to all the sums that the unsuccessful party may be called on to pay, a reasonable sum for the successful party’s attorneys' fees.