This agreement shall commence on the Effective Date and shall continue (unless terminated earlier in accordance with its terms) until expiry of the Live Period (Term), when it shall terminate automatically without notice.
2.1 The parties agree to comply with their respective obligations and duties as set out in this agreement including, without limitation, the Agreement Details.
2.2 The Influencer agrees to:
(a) perform the Services:
(i) in good faith;
(ii) in accordance with all applicable laws and regulations;
(iii) in a competent manner and to the best of their skill and ability;
(iv) in accordance with all VisitScotland's reasonable instructions, and
(v) within any VisitScotland brand guidelines, as may be notified to the Influencer from time to time;
(b) not make any derogatory statement relating to VisitScotland in public, online (including on the Media and any other social media), to the press or elsewhere;
(c) create the Deliverables and perform any other Services in accordance with the relevant Media platform's terms of use, the law, the UK Code of Non Broadcast Advertising and Direct Promotional Marketing (CAP) and the UK Code of Broadcast Advertising (BCAP) advertising codes, the Competition and Markets Authority's guidance on social media endorsements and all other applicable regulatory guidance, as updated from time to time. Without limiting the foregoing, the Influencer shall use an appropriate disclosure (such as #ad) and the disclosures stated in the Agreement Details in the Deliverables in a way that is clear and comprehensible before the consumer engages with the content; and
(d) at the request of VisitScotland remove posts of the Deliverables and any posts which are derogatory of VisitScotland over which it has control both from the Media and any other media as soon as practicably possible.
2.3 The Influencer acknowledges and agrees that:
(a) all activities undertaken by them (and/or by any of its agents, officers, employees, representatives or contractors) in connection with the Services are undertaken at the their own risk and VisitScotland shall have no liability or responsibility to the Influencer or any third party in relation to death or personal injury (other than death or personal injury arising from VisitScotland's negligence) or any other costs, expenses, claims or liabilities that are suffered or incurred by the Influencer (or by any of its agents, officers, employees, representatives or contractors) in connection with the Services;
(b) it shall be the sole responsibility of the Influencer to ensure that they have in place adequate insurance in relation to all activities (including, but not limited to travel, accommodation, vehicle hire and excursions) that the Influencer and/or any of the Influencer's agents, officers, employees, representatives or contractors may undertake in connection with the Services, and regardless of whether such activities are funded (in whole or in part) by the VisitScotland Contribution. The Influencer will provide evidence of all insurances put in place by or on behalf of the Influencer in connection with the Services at any time on request by VisitScotland;
(c) they shall be solely responsible for arranging (and shall bear all costs, expenses and liabilities associated with) all aspects of any visit(s) to Scotland (other than the items specifically listed in the VisitScotland Contribution) for the purposes of or in connection with the Services (or otherwise in connection with its business or operations), including, but not limited to, obtaining valid identification and compliance with all travel and health requirements (i.e. passports, visas), customs clearances, having in place adequate policies of insurance in connection with the Services and all travel associated with the Services and for ensuring that they and anyone accompanying them have no impediment to entering Scotland. VisitScotland will not replace any lost, mutilated, or stolen tickets, travel vouchers or certificates and VisitScotland will have no liability in relation to any costs or expenses that may be incurred in connection with any lost, mutilated, or stolen tickets, travel vouchers or certificates; and
(d) the provision of all travel, accommodation, van or car hire, transportation and other items that are provided and/or facilitated by VisitScotland pursuant to the VisitScotland Contribution will be subject to the relevant operator's terms and conditions, and the Influencer will indemnify and keep VisitScotland indemnified on demand from and against all charges, costs, claims, expenses, demands and/or liability that VisitScotland and/or any of its employees, officers, agents, contractors or partners may suffer or incur in connection with any breach, negligence, default and/or act or omission by the Influencer (or any of its employees, officers, agents, contractors or partners) in connection with any of the items that are provided and/or facilitated by VisitScotland pursuant to the VisitScotland Contribution.
3.1 In consideration for provision of the Services, VisitScotland will pay to the Influencer the Fee and the Expenses (if any), all of which are inclusive of UK VAT, if applicable.
3.2 Except to the extent expressly approved by VisitScotland in advance, all elements of the VisitScotland Contribution will be arranged by VisitScotland in its sole discretion and the associated costs will be paid directly by VisitScotland to the relevant third party and will not be paid or payable by VisitScotland to the Influencer.
3.3 VisitScotland shall not be obliged to make any contribution (whether financial or in-kind) to the Services in excess of or in addition to the VisitScotland Contribution, unless VisitScotland expressly agrees (in writing and in advance) to the contrary. No cash equivalent to all or any part of the VisitScotland Contribution will be provided by VisitScotland in any circumstances.
3.4 The Influencer shall submit invoices for the Fees and any approved Expenses, plus UK VAT if applicable, to VisitScotland as specified in the Agreement Details. Each invoice shall include all reasonable supporting information required by VisitScotland. VisitScotland shall pay each invoice due and submitted to it within 30 days of receipt.
3.5 Where the Influencer has an agent, the Influencer irrevocably authorises and requests VisitScotland to pay all money due to the Influencer under this agreement to the Influencer's Agent, on submission of invoices by the Influencer's Agent.
4.1 VisitScotland agrees that all intellectual property rights in:
(a) all materials created by the Influencer in providing the Services (including without limitation the Deliverables and any other photographs, audio-visual content, artwork, graphics, designs, performance and any other material protected by intellectual property rights) (“Influencer Materials”); and
(b) the Influencer's pre-existing trademarks, service marks, logos, other materials connected with the Influencer's brand, names (including nicknames and stage names), biography, signature, image, voice and likeness (“Influencer Assets”), shall vest in and remain the sole property of the Influencer at all times.
4.2 The Influencer grants VisitScotland, for the Term, a non-exclusive worldwide licence to use, and to authorise others to use, the Influencer Materials and the Influencer Assets for the purpose of promoting the Influencer's association with, and provision of Services to, VisitScotland including by using and promoting the Deliverables on VisitScotland's own websites, social media pages and other marketing and publicity material in any medium in connection with the Campaign and VisitScotland's marketing activities, operations and/or the promotion of tourism in Scotland.
4.3 The Influencer acknowledges that VisitScotland is not responsible for third parties' use of the Influencer Materials and Influencer Assets or for their removal from media outside its control.
4.4 VisitScotland may provide materials to the Influencer in connection with the Services (“VisitScotland Materials”). VisitScotland grants the Influencer, for the Term, a non-exclusive worldwide licence to use VisitScotland Materials solely for the purpose of creating the Deliverables and performing the Services. Other than under this licence and clause 4.7, the Influencer shall not acquire any right in or title to VisitScotland Materials.
4.5 Any goodwill derived from the use of VisitScotland Materials by the Influencer shall accrue to VisitScotland. VisitScotland may, at any time, call for a document confirming the assignment of that goodwill and the Influencer shall immediately execute it.
4.6 If either party wishes to include in the Deliverables materials protected by intellectual property rights owned or controlled by third parties (“Third-Party Content”) it shall:
(a) identify such Third-Party Content to the other party and, in the case of the Influencer, not include such Third-Party Content without VisitScotland's prior written consent (save where it is so minor or incidental as not to infringe third-party rights); and
(b) unless otherwise agreed by the other party on a case-by-case basis, secure any licences, consents and waivers required for the use of such Third-Party Content by both parties as envisaged in this agreement, including without limitation its incorporation in the Deliverables as posted on the Media and provide evidence of its having done so on reasonable notice and request. Where such rights have been obtained, each party shall comply with any restrictions or conditions on the use of Third-Party Content notified to it by the party responsible for securing rights in it.
4.7 Each party may during and after the Term use any Deliverables approved by VisitScotland for posting on the Media for: its own internal archiving purposes; industry awards; (in the case of VisitScotland) for training, investor communications and other internal and not primary advertising purposes; and (in the case of the Influencer) to promote its Services to other potential clients in a section of its media accounts only accessible to potential clients or via the Influencer's Agent.
5.1 VisitScotland warrants, represents and undertakes that:
(a) it has full power and authority to enter into this agreement and that by doing so it will not be in breach of any obligation to or right of any third party;
(b) VisitScotland Materials will not, when used in accordance with this agreement, infringe the intellectual property rights or other rights of any third party; and
(c) VisitScotland Materials will comply with the relevant Media platform's terms of use, the law and the CAP and BCAP advertising codes and all applicable regulatory guidance, as updated from time to time and be accurate, truthful and complete in all material respects.
5.2 VisitScotland shall indemnify the Influencer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by the Influencer arising out of or in connection with any third-party claims or any action, adjudication or decision taken against the Influencer by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach of clause 5.1 subject always to VisitScotland’s liability under this clause not exceeding £100,000 in respect of each event or series of connected events.
5.3 VisitScotland and the Influencer anticipate that this Agreement shall not constitute an employment relationship. The Influencer agrees to reimburse VisitScotland (on an after-tax basis) any amounts VisitScotland is required to pay to a tax authority in respect of income tax, national insurance contributions or any like taxes, together with interest and penalties thereon.
5.4 The Influencer warrants, represents and undertakes that:
(a) they have the legal capacity and are free contractually to enter into and to perform this agreement and have not entered and will not enter into any professional, legal or other commitment which would or might conflict with or prevent their doing so;
(b) the Influencer Assets and the Influencer Materials (excluding VisitScotland Materials) are wholly original and their use in accordance with this agreement will not infringe the intellectual property rights of any third party
(c) the Influencer Assets and the Influencer Materials (excluding VisitScotland Materials) will not contain any defamatory matter, breach any contract, law or duty of confidentiality, infringe data protection rights or constitute contempt of court or obscenity;
(d) the Influencer Assets and the Influencer Materials (excluding VisitScotland Materials) will comply with the relevant Media platform's terms of use, the law, the CAP and BCAP advertising codes, the Competition and Markets Authority's guidance on social media endorsements and all other applicable regulatory guidance, as updated from time to time;
(e) they have not used paid followers, bots or other forms of technology to artificially inflate their follower numbers or make their posts appear more popular;
(f) they shall comply with the obligations applicable to influencers in the Incorporated Society of British Advertisers (ISBA) Influencer Marketing Code of Conduct in their dealings with VisitScotland, provided that this agreement shall take precedence if it conflicts with such Code; and
(g) the Influencer completed the VisitScotland influencer questionnaire, fully and accurately.
5.5 The Influencer shall indemnify VisitScotland against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by VisitScotland arising out of or in connection with any third-party claims or any action, adjudication or decision taken against VisitScotland by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach of clause 5.4.
6.1 References to liability in this clause 6 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.
6.2 Nothing in this agreement shall limit any liability:
(a) under clause 5.5;
(b) which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation; or
(c) for either party's deliberate default.
6.3 Subject to clauses 6.2 and 5.2:
(a) each party's total liability to the other shall not exceed £50,000;
(b) neither party shall have any liability to the other for:
(i) loss of profits or income;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; or
(vii) indirect or consequential loss; and
(c) VisitScotland shall have no liability for loss of publicity or loss of opportunity to enhance the Influencer's reputation.
7.1 Without affecting any other right or remedy available to it, either party to the agreement may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 2 working days in respect of VisitScotland and 2 days in respect of the Influencer after being notified in writing to do so;
(b) the other party takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 7.1(b);
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on business;
(d) the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy;
(e) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation; or
(f) there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010.
7.2 Without prejudice to its rights under clause 7.1 above, VisitScotland may terminate this agreement:
(a) at any time (and for any reason) on providing not less than one month's notice to the Influencer;
(b) with immediate effect if VisitScotland becomes aware that the performance of all or any part of this agreement is or is likely to be in contravention of any laws; or
(c) with immediate effect if it comes to VisitScotland's attention that the Influencer has committed an act or omission or has become involved in a situation which in VisitScotland's reasonable opinion has (or is at real risk of having) a material adverse effect on VisitScotland's reputation or standing and/or a material adverse effect on the reputation or standing of Scotland and/or the Scottish tourism industry.
7.3 On termination or expiry of this agreement for any reason:
(a) without prejudice to its rights of set-off, VisitScotland shall, subject to receipt of appropriate invoices, pay the Influencer sums properly due under this agreement up to the date of termination;
(b) the Influencer shall, if requested by VisitScotland, remove any and all posts of the Deliverables from the Media as soon as practicably possible; and
(c) each Party shall promptly deliver to the other Party (or dispose of as directed by it) all materials and property belonging or relating to the other Party and all copies of the same, to the extent that such materials are in the relevant Party's possession or control and it is practicable to do so.
7.4 Termination of this agreement shall not affect accrued rights and obligations of the parties under this agreement at the date of termination or any provisions in this agreement that will expressly or by implication survive such termination. Without prejudice to the generality of the preceding sentence of this clause 7.4, the parties acknowledge and agree that clauses 2.2, 2.3, 3.3, 4, 5.4, 5.5, 6, 7.4, 7.5, and clauses 8 - 21 inclusive shall survive expiry or earlier termination of this agreement.
7.5 In the event that this agreement is terminated (for any reason) prior to the date that the Influencer has provided all of the Deliverables to VisitScotland's reasonable satisfaction, the Influencer shall pay to VisitScotland (within 30 days of VisitScotland's demand) the full amount of the VisitScotland Contribution (being the amount set out in VisitScotland's demand pursuant to this clause 7.5).
8.1 For the purposes of this clause 8, Confidential Information means all information of a confidential nature disclosed (whether verbally or in writing) by either party to the other whether before or after the Effective Date, relating to such party's business, customers, personnel, suppliers, products, operations, methodologies, processes, developments, know-how and/or business affairs.
8.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 8; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
8.4 The Influencer acknowledges that VisitScotland, as a public sector body in Scotland, is subject to the requirements of certain access to information legislation, including the Freedom of Information (Scotland) Act 2002, the Access to Environmental Information (Scotland) Regulations 2004 and the Public Services Reform (Scotland) Act 2010 (the “Information Laws”). The Influencer acknowledges that VisitScotland may be obliged under the Information Laws to disclose information relating to the Influencer. VisitScotland shall not have any liability to the Influencer in connection with the disclosure of any information pursuant to the Information Laws.
8.5 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 UK General Data Protection Regulation. This clause is in addition to, and does not reduce, remove or replace, a party's obligations arising from such requirements.
8.6 VisitScotland will collect and process the Influencer’s personal data for the purposes of this agreement. The lawful reason for processing is contract. Where accessibility and dietary requirements are recorded they are processed on the basis of explicit consent and are deleted upon termination of the contract. The residual personal data will be retained for maximum of seven years for audit purposes. Influencer personal data will be processed in the UK. Data subjects have rights regarding how their personal data is used, including the right to complain to the regulator (the ICO in the UK). For full information about rights and how to complain, visit our privacy centre.
Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two weeks, the party not affected may terminate this agreement by giving five days' written notice to the affected party.
Neither Party shall assign, novate, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
(a) This agreement constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
(a) If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
(b) If any provision or part-provision of this agreement is deemed deleted under clause 14 (a), the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at the address specified in the Agreement Details or such other address as that party may have specified to the other party in writing in accordance with this clause; or
(ii) sent by email to the addresses set out in the Agreement Details.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
(d) For the purposes of this clause, a Business Day shall mean a day other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business. Business Hours shall mean the period from 9.00 am to 5.00 pm on any Business Day.
Unless it expressly states otherwise, this agreement does not give rise to any right under the Contracts (Third Party Rights) (Scotland) Act 2017 to enforce any term of this agreement. For the avoidance of doubt, the Influencer’s Agent (if one is named in the Agreement Details) may enforce clause 3.5.
Nothing in this agreement is intended to nor shall create any partnership, joint venture or agency, the parties being with respect to one another independent contractors.
This agreement may be executed in any number of counterparts. Where executed in counterparts this agreement shall not take effect until each of the counterparts has been delivered. Delivery shall take place on the effective date.
Where this agreement is executed by electronic signature (whatever form the electronic signature takes) this method of signature is as conclusive of our intention to be bound by this agreement as if signed by each party's manuscript signature.
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 Scottish law.
Each party irrevocably agrees that the Scottish courts shall have non-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.