1.1 The following definitions and rules of interpretation apply to this Agreement:
Agreement: these General Terms and Conditions together with all terms stated in the Booking Form;
Booking Form: the Contribution Agreement Order Form issued by Akita in respect of the Contributor and the Services;
Brand: the Brand specified in the Booking Form;
Akita: Akita Brands Inc. (t/a Fable & Mane) of 45 Park Avenue, Suite 1902, New York, NY 10016;
Company Materials: any documents, copy, artwork, logos and any other materials or information owned by or licensed to Akita and/or the Brand that is provided to Contributor by or on behalf of Akita and/or Brand in connection with this Agreement;
Contributor: the Contributor specified in the Booking Form;
Deliverables: the Deliverables specified in the Booking Form;
Effective Date: the date of signature of the Booking Form by the Contributor or the date upon which the Contributor starts to provide services to Akita, whichever shall be the earlier;
Fees: the sums payable for the Services specified in the Booking Form;
General Terms and Conditions: these terms and conditions;
Intellectual Property Rights: copyright and neighbouring and related rights, moral rights, trade marks 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 unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information, and all other intellectual property rights, in each case whether registered or unregistered which subsist or will subsist now or in the future in any part of the world;
Services: the services specified in the Booking Form, including services which are incidental or ancillary to such services;
Special Terms: the special terms set out in the Booking Form;
Usage: the usage rights specified in the Booking Form;
Term: the term specified in the Booking Form.
1.2 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 those terms.
2. AGREEMENT & SERVICES
2.1 The Contributor shall provide the Services and Deliverables to Akita in accordance with the terms of this Agreement.
2.2 This Agreement shall commence on the Effective Date and shall continue, unless terminated earlier in accordance with its terms and conditions, until the last day of the Term.
2.3 The Contributor shall:
(a) provide the Services and the Deliverables in accordance with the terms and within the timetable specified in the Booking Form;
(b) perform the Services with the highest level of care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
(c) perform the Services in accordance with all applicable laws;
(d) ensure that the Deliverables are pre-approved by Akita in writing before they are posted or otherwise published by the Contributor.
(e) co-operate with Akita in all matters relating to the Services, and comply with Akita’s instructions;
(f) not do or omit to do anything which may cause Akita to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business.
2.4 At any time (including after the Agreement expired or is terminated) upon written request from Akita, Contributor shall, within one Business Day, remove and delete (i) all Contributor Materials posted by or on behalf of Contributor from any or all Contributor channels (including blog(s), website(s), social network accounts or any other medias), (ii) all content featuring and/or otherwise referring or relating to Akita and/or the Brand (including social media post, caption, amplification, blog, vlog, audio visual recording, sound recording, photograph or image) posted by or on behalf of Contributor from any or all the Contributor’s channels and (iii) all references to and associations with Akita on the Contributor channels or elsewhere.
3. PAYMENT AND REMUNERATION
3.1 In consideration for provision of the Services, the Fees will be invoiced to and paid by Akita to Contributor in accordance with the payment terms specified in the Booking Form.
3.2 All sums payable by Akita to Contributor under this Agreement are exclusive of Value Added Tax (“VAT”) which shall be paid to Contributor subject to receipt by Akita of a valid Value Added Tax invoice from Contributor.
3.3 Contributor shall be responsible for making all deductions from payments and fees received hereunder and performing all acts and making all payments necessary under any legislation in force in the United Kingdom including, Income Tax and National Insurance. For the avoidance of doubt, Akita shall not make such deductions from the Fees.
4. AKITA OBLIGATIONS
4.1 Akita will supply to Contributor any Company Materials reasonably required by Contributor to provide the Services.
4.2 Akita shall be responsible for all management of and communication with the Brand and all aspects relating to the use of the Deliverables.
5. WARRANTIES & UNDERTAKINGS
Contributor hereby warrants and undertakes that:
(a) it is able to provide the Services and the Deliverables and has the legal capacity to enter into this Agreement and that by doing so to the best of its knowledge and belief the Deliverables will not, when used in accordance with this Agreement, infringe the intellectual property rights of any third party;
(b) it will not be in breach of any obligation to or right of a third party;
(c) the Deliverables (excluding the Company Materials) to the best of its knowledge and belief are truthful, do not infringe any third-party rights, do not infringe any copyright, data protection or other laws or regulations in the UK;
(d) it is solely responsible for all income tax and national insurance contributions due in respect of provision of the Services under this Agreement;
(e) if any agency is acting on behalf of the Contributor, that it has legally appointed such agency to be its lawful representative and to accept and sign this agreement on its behalf.
(f) they are 18 years of age or older and they agree to provide Akita with identification to confirm their age if required to do so by Akita;
(g) they do not have any unspent criminal convictions of any kind subsisting at the date of this agreement;
(h) the Deliverables will be wholly original to them (save to the extent that it incorporates material provided by Akita) and will not infringe the copyright or any other rights of any third party;
(i) the Deliverables will not contain any defamatory matter nor breach any contract or law nor breach any duty of confidentiality, infringe any copyright or data protection rights, nor constitute contempt of court or obscenity;
(j) they have disclosed in writing to Akita all material facts that are relevant to their engagement under this agreement, including the nature and duration of past and existing endorsement agreements between the Contributor and third parties and endorsement agreements that are likely to be concluded during the term of this agreement.
6.1 Nothing in this Agreement shall exclude or in any way limit either Party’s liability for fraud, death or personal injury caused by its negligence or any other liability to the extent the same may not be excluded or limited as a matter of law.
6.2 The Contributor (“Indemnifying Party”) agrees to indemnify and keep Akita(“Indemnified Party”) indemnified against any or all losses incurred by the Indemnified Party arising from any breach by the Indemnifying Party of any warranties or undertakings set out in this Agreement. In the event of a third party claim arising against the Indemnified Party where such claim is the subject of an indemnity under this Agreement:
(a) the Indemnifying Party must promptly notify the Indemnified Party in writing of such claim;
(b) the Indemnifying Party agrees that the Indemnified Party has express written authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim (and if requested shall provide a written authority to the Indemnified Party);
(c) the Indemnifying Party must provide the Indemnified Party with all available information and assistance in relation to such claim as the Indemnified Party may reasonably require at the Indemnifying Party’s cost and expense.
6.3 The terms of and obligations imposed by this clause 6 shall survive the termination of this Agreement for any reason.
7. RIGHTS TO MATERIALS
7.1 Contributor acknowledges that ownership of Company Materials and ownership of all Intellectual Property Rights in any Company Materials (including any modifications or adaptations of such Company Materials produced in the course of the Services) shall remain vested in Akita or its clients and licensors as applicable. Akita hereby grants to Contributor a non-exclusive non-transferable, non-sub-licensable, worldwide, royalty-free licence during the Term to use the Company Materials solely for the purposes of providing the Services.
7.2 The Deliverables shall remain on the Contributor’s Instagram account throughout the Term and for 6 months thereafter.
7.3 Throughout the Term, Akita and its clients shall have the Usage rights specified in the Booking Form.
8.1 Either Party may terminate this Agreement immediately upon written notice to the other in the event of:
(a) any breach of this Agreement by the other Party which breach is not remediable or, if remediable, is not remedied within twenty one (21) days after the service by the Party not in default of a written notice on the other Party, specifying the nature of the breach and requiring that the same be remedied; or (b) the other Party becoming insolvent, entering into liquidation, whether voluntary or compulsory, passing a resolution for its winding up, having a receiver or administrator appointed over the whole or any part of its assets, making any composition or arrangement with its creditors or taking or suffering any similar action in consequence of its debt.
8.2 Akita may terminate this Agreement (without prejudice to its other rights and remedies) with immediate effect upon written notice to Contributor if Contributor:
(a) is incapacitated from rendering the Services;
(b) convicted of any criminal offence;
(c) has conducted itself, in Akita’s opinion, in such a manner that offends against decency or morality;
(d) has breached any of the warranties provided at clause 5;
(e) has breached any of the obligations set out in this Agreement; or
(f) is in persistent breach of this Agreement.
8.3 Akita may terminate this Agreement for convenience at any time upon 20 Business Days’ written notice to Contributor.
8.4 On termination or expiry of this Agreement if terminated pursuant to clause 8.3:
(a) Akita shall pay to Contributor remuneration due under this Agreement up to the date of the event giving rise to termination;
(b) each Party shall immediately deliver to, or dispose of as directed by the other Party, any and all materials and property belonging or relating to the other Party, including all confidential information, and all copies of the same, then in its possession, custody or control; and
(c) provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
8.5 Notwithstanding termination or expiration of this Agreement for any reason each Party will remain entitled to enforce any claim against the other Party arising from any breach of this Agreement that may have occurred before termination.
9. CONFIDENTIALITY AND NON-DISPARAGEMENT
9.1 The Parties acknowledge that the terms of this Agreement are confidential and must not be disclosed to any third party, excluding agents and representatives, or to otherwise enforce the provisions hereto. Neither Party shall make any press announcements regarding this Agreement without the other Party’s prior written consent, except as required by law.
9.2 Akita and the Contributor agree that they will not, either themselves or through third parties or associates, disparage or ridicule the other Party, its products, work products, services, or affiliates.
9.3 Contributor agrees not, either personally or by other means, to make any statement or disclose any confidential information to any third party relating to the Services, the Deliverables, the Company Materials, or the general affairs of Akita and its clients and licensors, unless Akita gives its prior written consent.
10. DATA PROTECTION
Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 and the General Data Protection Regulation ((EU) 2016/679) as retained in UK law. This clause is in addition to, and does not reduce, remove or replace, a party's obligations arising from such requirements.
11. GOVERNING LAW
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law ofNew York.
Each party irrevocably agrees that the courts of New York shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.