The parties to the contract of which these general terms form a part are:

Digital Voices Ltd (the agency), a digital marketing agency which targets potential consumers by contracting with content providers to create advertising, promotional or other marketing content to be published on social media platforms (the agency’s full details are set out in the appendix to these terms); and
The client that has engaged the agency to commission content to be created and posted on platforms in accordance with the insertion order agreed between the parties, as described below (the client’s full details are set out in the insertion order).

The contract

The parties enter into a contract by agreeing and signing an insertion order. The insertion order describes:

the campaign to promote the client’s business or products that the content will be supporting;
how long the campaign is intended to last;
the services that the agency will provide;
the content;
the platforms on which it is intended that the content will be published;
the estimated publication date(s) of the content;
whether the client may use the content or the content provider’s image and, if so, on what terms;
the agency’s fees and expenses; and
any other specific terms agreed between the parties.

Once signed by both parties, each insertion order forms a separate contract between the parties. Each insertion order incorporates these general terms (which are treated as forming part of the insertion order). The Appendix to these terms includes an explanation of the defined expressions used in these terms and each insertion order (where these are used for the first time, they appear in bold coloured type like this), together with some other information to help understand the insertion order and these terms. Where there is a reference to a specific section of the terms, a link is used to enable easier movement to the section referred to.

When the insertion order starts and ends

The insertion order specifies the date on which it comes into effect (the commencement date), together with how long the campaign under the insertion order is intended to last (the term). Unless it is terminated earlier in accordance with these terms, the insertion order will last until the end of the term and will then come to an end unless the parties agree in writing to extend it (the insertion order may also contain special terms with regard to its termination or extension). The date on which the insertion order ends is the termination date.

The agency’s role

Services to be provided by the agency

The agency will provide the services described in the insertion order. Unless the insertion order says otherwise, the services will include:

sourcing content orders;
commissioning content;
negotiating and agreeing content orders with the content providers;
communicating the client’s instructions to the content providers;
using its reasonable endeavours to ensure the publication of the content in accordance with each content order; and
reporting the results of the campaign to the client.

The agency warrants that the services provided by it will be provided in a competent and professional manner, with reasonable care and skill, and in all material respects accordance with the terms of the insertion order.

Terms as to intellectual property rights to be included in the content order

Except to the extent agreed otherwise between the parties in the content order, the agency will ensure that the content order includes the following obligations on the part of the content provider:

The content is the content provider’s own original work and not subject to the intellectual property rights of any third party (except to the extent that the inclusion of anything subject to a third party’s intellectual property rights has been agreed in advance and specified in the content order or content brief).
If anything that is subject to a third party’s intellectual property rights is included in the content, the content provider will ensure at its own cost that it is appropriately licensed for use as part of the content (this includes ensuring that it may be used by the agency or the client where a relevant licence to use the content has been granted to the agency or the client under the content order).
To the extent that the content provider grants a licence under the content order for the agency or the client to use the content or the content provider’s image, the use by the agency and/or the client (and/or anyone authorised by the agency and/or the client) of the content or the content provider’s image in accordance with the content order shall not infringe the intellectual property rights or any other rights of any third party.

The agency will ensure that the content order includes: the right on the agency’s part to terminate the content order in the event of breach by the content provider of any of the above terms; and an indemnity from the content provider in relation to any claim by a third party against the agency or the client arising from breach by the content provider of any of the above terms.

Other terms to be included in each content order

Except to the extent agreed otherwise between the parties in relation to a given content order, the agency will ensure that each content order includes the following obligations on the part of the content provider:

The content does not feature or include:

any branding that does not belong to the client or which is not otherwise authorised in advance by the client for inclusion in the content;
anything that is, or that might reasonably be considered to be, harmful to the reputation of the client, or likely to bring the client into disrepute.

The content provider will not remove from the content any client branding that has been included in the content.
The content shall not include anything that is, or that might reasonably be considered to be, defamatory, offensive, obscene, indecent, or otherwise unlawful.
The content complies with all laws, regulations, and codes of practice applicable to the content or its use for advertising and marketing purposes (including any applicable advertising and marketing regulations or codes of practice). This will include ensuring that the content is communicated in a way which is transparent and makes clear to users that the content provider has a commercial relationship with the client, in accordance with applicable regulations and codes of practice.
The content will not include anyone other than the content provider, or any personal information relating to anyone other than the content provider, except as specified in the content order or content brief, or as otherwise agreed in advance.
The content provider is not subject to any prior or existing contractual or other obligation that prevents, restricts, or adversely affects their capacity to:

enter into the content order;
provide the services in accordance with the content order; or
grant any rights or perform any obligations under the content order.

The content provider will provide their services:

with reasonable care and skill;
in a competent and professional manner; and
in all material respects in accordance with the terms of the content order.

The content provider has not at any time prior to entering into the content order published or communicated to the public, or caused to be published or communicated to the public, anything that might reasonably be considered prejudicial the client or the client’s legitimate interests, and such that the client (acting reasonably) would not (if it had known) have wished to become associated with the content provider, unless the content provider has prior to entering the content order disclosed all of the relevant circumstances and has received confirmation that the client still wishes the content order to be entered into with the content provider.
The content provider will not during the term:

publish or communicate to the public, or cause to be published or communicated to the public, by way of comment or otherwise anything derogatory about the client or the campaign;
be convicted or any offence, be subject to any legal proceedings, or otherwise behave in any manner which may reasonably be considered prejudicial to the client or the client’s legitimate interests and such that the client (acting reasonably) would no longer wish to continue its association with the content provider; or
enter into any media or other contractual commitment which may create any conflict with the performance of the content provider’s obligations under content order.

The content provider will not knowingly or intentionally use, enable, or facilitate any fraudulent traffic in relation to any content to the extent that the content concerned is communicated to the public by the content provider (for example, via the content provider’s social media channels).

The agency will ensure that the content order includes the right on the agency’s part to terminate the content order in the event of breach by the content provider of any of the above terms.

The agency’s liability for services to be provided by the content providers:

The agency will use its reasonable endeavours to ensure that the content provider:

does not publish any content except to the extent that the client has approved the content beforehand; and
otherwise complies with the terms of the content order.

Disclaimer

It is not a term of the insertion order that the agency’s services or those of the content providers:

will lead to positive reviews of the client’s business, products, or services;
will increase the client’s profitability, turnover, or sales of any products or services; or
will improve or enhance the client’s goodwill or reputation (or that of any of the client’s products or services);

and neither the agency nor or the content provider enters into any contractual obligation to this, or any similar, effect.

The client’s role

Content brief

The parties may agree a content brief, which will provide guidelines for the content providers to follow in creating the content. The agency will make compliance with the content brief (if any) a term of each content order and will use its reasonable endeavours to ensure that, when creating the content, the content provider complies with the content brief.

Client branding and client material

If any of the client’s branding (client branding) or other material (client material) is to be included in the content, the client will provide this to the agency, together with instructions for using it, and the agency may provide it to each content provider together with the instructions. The agency will ensure that it is a term of the content order that the content provider may only use the client branding or client material for creation of content under the content order, and not for any other purpose, and the client hereby licenses the agency and the content provider to use the client branding and client material accordingly.

Approval of content by the client before publication

The client will have a right of approval (acting reasonably) of the content, and the agency will use its reasonable endeavours to ensure that the content provider does not publish any content except to the extent the client has approved the content beforehand. Unless the content does not comply with the content brief, there shall be a maximum of only two rounds of review and approval in relation to the content. Any content approved by the client will be treated as complying in all material respects with the content brief. The client must approve content (or tell the agency that it is not approved, explaining its reasons) within 3 working days, starting with the working day after the content is provided to the client for approval.

Performance data

The client will provide the agency with the required final destination URL and complete back-end development of any websites relevant to the campaign that are specified in the insertion order. The agency shall implement UTM tracking on the final destination URL provided by the client to measure traffic resulting from publication of the content. The client shall share accurate anonymised and aggregated data on resulting traffic and sales resulting from the content, including granting the agency access to its Google Analytics and Shopify (if relevant) data from channels, pages, and platforms on which the content is featured.

Warranty (client branding and client material)

The client warrants that use of the client branding or client material by the agency or the content provider in accordance with the insertion order will not infringe the intellectual property or other rights of a third party.

Intellectual property rights

Content

All intellectual property rights in and relating to the content (except any client branding incorporated into the content) will be owned by the content provider or any relevant third party licensors. The client will have no right to copy, communicate to the public, or use the content other than as set out in the insertion order, or as otherwise agreed in writing with the agency in relation to specific content. Any use of the content by the client that is expressly permitted under the content order (usage rights) will be restricted to the period specified in the content order or otherwise to the term and may be subject to payment by the client of an additional fee.

Client branding

All intellectual property rights in and relating to the client branding will be owned by the client or any relevant third party licensors. Neither the agency nor the content provider will have any right to copy, adapt, communicate to the public, or otherwise use the client material except as set out in the insertion order, or as otherwise agreed in writing with the client in relation to the client branding.

Indemnities

Indemnity by the agency

The agency will use reasonable endeavours to procure that the content provider indemnifies the client in respect of any claim against the client by a third party arising from breach by the content provider of the terms set out in 4.2 Terms as to intellectual property rights to be included in the content order).

Indemnity by the client

The client will indemnify the agency and/or the content provider in respect of any claim:

against the agency, by the content provider or a third party; and
against the content provider, by a third party;

arising from:

the use by the agency or the content provider of any client branding or client material in accordance with the terms set out in 5.2 Client branding and client material, above; or
the use by the client of any content other than in accordance with the usage rights granted to the client under the insertion order.

Conditions of indemnity

The indemnities set out above are subject to the following terms:

The party subject to the claim by a third party (the indemnified party) must notify the party providing the indemnity (the indemnifying party) as soon as possible upon being notified of the claim, and promptly provide the indemnifying party with all information available to the indemnified party in relation to the claim.
The indemnified party must not make or enter into any admission of liability, agreement, or compromise in relation to the claim without the prior written consent of the indemnified party.
The indemnified party must give the indemnifying party sole authority to deal with the claim (including defending or compromising the claim).
The indemnified party must give the indemnifying party all assistance (including access to staff and documents) reasonably requested by the indemnifying party.

Fees and payment

The agency’s fees

The agency’s fees are as set out in the insertion order.

Expenses and third-party charges

Brand Agreement