INFLUENCER MANAGEMENT TERMS

11. Interpretation

The following definitions, terms and conditions are deemed to be incorporated into the Talent Management Agreement.

11.1. Definitions

Business Day means any day that is not a Saturday, Sunday, or Public Holiday observed in the jurisdiction which governs this Agreement.

GST has the same meaning as in the the A New Tax System (Goods & Services Tax) Act 1999 (Cth).

Insolvent means where a person becomes bankrupt or insolvent, is unable to pay its debts as they fall due, goes or is put into liquidation or dissolution (other than by way of merger or reconstruction), makes any compromise, assignment or composition with its creditors generally, has a trustee in bankruptcy, receiver, manager, secured creditor or other custodian appointed to or taking possession of all or a substantial part of its assets or business, or otherwise any act to take advantage of bankruptcy or insolvency laws in Australia.

Management Services means the following:

  1. (a)  seeking or finding work opportunities for the Influencer;

  2. (b)  negotiating terms of an agreement for, and the conditions of, Professional Contracts for Professional Activities;

  3. (c)  finalising arrangements relating to the payment of the Influencer,

  4. (d)  negotiating arrangements relating to the attendance of the Influencer at a Professional Activity;

  5. (e)  administering the agreement between the Influencer and a client;

  6. (f)  making arrangements for publicity attendances and related publicity responsibilities of the Influencer; and

  7. (g)  seeking to amplify and accelerate the reputation, career, and career development of the Influencer.

12. Sole Agent

12.1.   Influencer expressly acknowledges and agrees that this agreement is a sole agency agreement.

12.2.  In the event that the Influencer accepts an Engagement introduced by an agent other than Neon, the Influencer will owe, and must pay, the Fee to Neon.

  1. 12.3.  The Influencer will not owe the Fee to Neon for an Engagement where:

    (a)  the Influencer is approached directly by the client; and

    (b)  no agent is involved in the introduction of the parties or the negotiation of that Engagement.

    13. Acknowledgements of the Influencer

    The Influencer acknowledges and agrees that:

    (a)  the Influencer is not allowed to take on any Freelance Engagements within an Exclusive Management Agreement;

    (b)  the Influencer is solely responsible for the management of their own financial and legal affairs and obligations as a person in business for themselves;

    (c)  Neon will not advise or be required to advise the Influencer in relation to investments, taxation or business affairs, but will assist the Influencer to source professional services in these areas if requested;

    (d)  no employer-employee relationship exists between Neon and the Influencer;

    (e)  Neon will not be liable in respect of any accident, injury, loss, theft or damage to personal property incurred or suffered by the Influencer and on the termination of this agreement, the Influencer will have no claim against Neon under employee protection legislation;

    (f)  to the maximum extent permitted by law, the Influencer agrees to defend, indemnify and hold harmless, Neon against any and all claims, liabilities, costs, expenses, damages and losses howsoever arising from or in connection with the Influencer’s Posts, Professional Activities and Engagements.

14. Neon’s Further Obligations

14.1. During the Management Period, Neon Agrees:

(a)  to have the exclusive right to negotiate all Engagements on behalf of the Influencer in respect to Professional Activities and employment;

(b)  to provide the Management Services in a lawful manner in accordance with the instructions of the Influencer throughout the Management Period;

(c)  to use reasonable endeavours to obtain the Influencer’s approval (which must not be unreasonably withheld) before accepting any offer on behalf of the Influencer for any Engagement in respect to Professional Activities or other employment or income producing activities;

(d)  to disclose all material facts known by Neon to the Influencer which relate to the subject of the Influencer’s contract negotiations;

(e)  not to engage in any other activity which creates an actual conflict of interest with the effective representation of the Influencer, without discussing such conflict of interest with the Influencer (as soon as practicable after the relevant facts have come to the knowledge of Neon) and securing their consent to such conflict; and

(f)  to disclose the existence of any arrangement Neon and/or any third party engaged by it has to receive fees, commissions, money or any other benefits from a third party in relation to services provided to the Influencer or for recommendation, endorsement or referral of the third party to the Influencer by Neon and/or any third party engaged by it.

14.2.  Neon does not and is in no way obligated to hold any kind of insurance for or on behalf of the Influencer.

14.3.  It is further understood and agreed that Neon is acting for the Influencer as a personal manager only and does not operate as an employment agency.

15. Neon’s Right to Remuneration

15.1.  in the in the ordinary course of events, Neon will be entitled to receive its Fee for performance of the Management Services under this Agreement once the compensation upon which the Fee is based is received.

15.2.  Except where this Agreement is terminated under clause 16.2, Neon remains entitled to receive from the Influencer, payment of the component of the Fees on income earned by the Influencer from marketing and promotional arrangements arising from an agreement effectively introduced or negotiated by Neon during the Management Period of this Agreement.
15.3 The Client expressly acknowledges and agrees that the end user will be required to enter into contract with NEON where the end user is responsible for paying the service fee. 

16. Termination

16.1.  Where the Influencer is in material default of their obligations under this Agreement and such default is not remedied within 14 days of the Influencer receiving written notice from Neon of such default, Neon may terminate this Agreement by providing written notice to the Influencer in accordance with this clause. Termination in this manner will not exclude the obligation of the Influencer to pay Neon the Fee Neon is duly entitled to under this Agreement.

16.2.  Where Neon is in material default of its obligations under this Agreement and such default is not remedied within 14 days of Neon receiving written notice from the Influencer of such default, then the Influencer may terminate this Agreement by providing written notice to Neon.

16.3.  Either party may terminate this Agreement in writing immediately upon the other becoming Insolvent, following which, Neon will not be entitled to receive any further fees and will refund a pro-rata portion of any advance fee payment received as it relates to the period post-termination.

16.4.  The Influencer may terminate this Agreement without cause by providing 30 days' notice to Neon of such termination in compliance with clause 16.

16.5.  The Influencer agrees to conduct themselves with propriety and dignity, and to do nothing on an Engagement or otherwise that may tend to injure the reputation and goodwill of the Influencer or Neon, nor to do any act or thing which impairs the Influencer's capacity to at all times fully comply with the terms of this Agreement, or which impairs the Influencer's physical or mental qualities and abilities. The Influencer further agrees to abide by all rules and policies of Neon with regard to behaviour on castings and Engagements. Neon may, upon 5 days’ notice to the Influencer, terminate this Agreement for breach of this clause 16.5. An Influencer who does not attend castings, jobs, or photo shoots without a reason to the satisfaction of Neon will have been deemed to have breached this Agreement. If the Influencer is deemed to be unavailable over an extended period of time, at the determination of Neon, they will have breached this Agreement.

17. Independent Contractor

17.1. The parties acknowledge that Neon provides Management Services as an independent contractor of the Influencer. Neon’s services are not exclusively provided to the Influencer and Neon must be permitted to perform the same or similar services for other parties or devote time to other business activities provided that they do not conflict with Neon’s obligations to the Influencer as set out in clause 4.

18. Disputes

18.1.  If a dispute arises in connection with this Agreement, a party to the dispute must give to the other party a notice specifying the dispute and requiring its resolution under this clause (Notice of Dispute).

18.2.  Neon and the Influencer or their nominated representatives must confer within 3 days after the Notice of Dispute is given to try to resolve the dispute.

18.3.  If the dispute is not resolved within 7 days after the parties meet, then the dispute is by this clause submitted to mediation. The mediation must be conducted in Sydney, New South Wales, Australia by a mutually agreed upon Nationally Accredited Mediator or failing agreement as to the identity of the mediator then a mediator as nominated in writing by the Resolution Institute. The Resolution Institute’s Rules (at the date of this Agreement) apply in relation to the mediation, except to the extent modified or excluded by this clause.

18.4.  The Parties must pay the mediator’s remuneration in equal shares. Each party must pay its own costs of the mediation.

18.5.  Despite anything in this clause, a party at any time may commence court proceedings in relation to any dispute or claim arising under or in connection with this Agreement where that party seeks urgent interlocutory relief by way of injunction or other court order.

19. Notices

19.1.  A notice, consent, approval or other communication (each a notice) under this Agreement must be

  1. signed (electronically or in wet ink) by or on behalf of the person giving it, addressed to the person to whom it is to be given and

    (a)  delivered to that person’s address;

    (b)  sent by prepaid mail to that person’s address; or

    (c)  sent by electronic mail (e-mail) to that person’s last known e-mail address.
    19.2.  A notice given to a person in accordance with this clause is treated as having been given and received –

    (a)  if delivered to a person’s address, on the day of delivery if a Business Day, otherwise on the next Business Day;

    (b)  if sent by prepaid mail, on the seventh Business Day after posting; or

    (c)  if transmitted by e-mail a person’s address, on the day of transmission if a Business Day,otherwise on the next Business Day. For the avoidance of doubt, a delivery report received by the sender of an email, evidencing the e-mail was properly delivered into the receiver’s e-mail store, will be deemed as conclusive proof of the transmission of an e-mail.
    19.3.  For the purposes of this clause the address of a person is the address set out at the beginning of this Agreement or another address of which that person may from time to time give notice to each other person.

20. Confidentiality

The terms and conditions of this Agreement are confidential and must not be made available to any third parties without the prior written consent of the other party to this Agreement. The parties each agree not to disclose at any time, whether during the Management Period or after its expiry, to any person any Confidential Information obtained during the Management Term, except for the purposes of obtaining legal and financial advice, as otherwise required by law, or as agreed in writing by each party prior to such disclosure. For the purposes of this Agreement 'Confidential Information' means information relating to each party’s business operations and includes but is not limited to trade secrets, ideas, concepts, know-how, plans, secret or commercially sensitive information, processes, methods or dealings.

21. Power of Attorney

  1. The Influencer appoints Neon to be the Influencer’s true and lawful attorney and authorises the attorney in the Influencer’s name and on the Influencer’s behalf to execute any contracts, agreements, notices, forms, nominations and other documents in relation to the Influencer’s Professional Contracts or other employment or contract or to do anything necessary for or incidental to the Influencer’s Professional Activities provided that this Power of Attorney will cease to be of any effect at the end of the Management Period or the earlier termination of this Agreement but without affecting the validity of anything done by the Influencer’s attorney prior to the date of such Power of Attorney ceasing to have any effect.

  2. The Influencer declares that each and all of the documents and things which must be given, made, executed or done by Neon as the Influencer’s attorney for the abovementioned purposes will be good, valid and effectual to all intents and purposes as if they had been signed, given or made or done by the Influencer.

  3. The Influencer undertakes at all times to ratify whatever Neon as the Influencer’s attorney will lawfully do or cause to be done by virtue of this Power of Attorney and to indemnify and keep Neon indemnified from and against any liability incurred in the valid exercise of this Power of Attorney.

22. General

22.1. Counterparts

This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument.

23. Validity of Execution

23.1.  This Agreement may be exchanged by exchanging electronic copies of the Agreement duly executed by the parties.

23.2.  Delivery of an executed counterpart of a signature page to this Agreement, signed with wet ink or electronically signed (e.g. DocuSign), in electronic format (e.g., ".pdf") or by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement.

23.3.  A validly executed counterpart received by a party by email is deemed to be the original.

23.4.  The signed copies may be dated by the recipient the date electronic copies of the duly executed Agreement were exchanged.

23.5.  In the event of the use of DocuSign or other electronic signing technology, each Party represents and

  1. warrants to each other Party that:

    (a)  it acknowledges that this Agreement has been transmitted and/or executed electronically by DocuSign or via an online platform via digital signing technology;

    (b)  the effectiveness of any such signatures shall have the same force and effect as manually-signed originals and shall be binding on all parties and it does not and will not dispute the validity of its digital and/or electronic signature; and the Party has the power and authority to enter into this Agreement and does not require any further approvals to do so.
    24.  Assignment

    This agreement is personal to the Influencer. The Influencer must not transfer any right or liability under this agreement. Neon may assign its rights and obligations under this Agreement at any time without need of consent of the Influencer.

    25.  Amendment

    This Agreement may only be amended by mutual agreement in writing signed by the parties.

    26.  Entire Agreement

    This Agreement forms the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of this Agreement. All representations, communications and prior agreements in relation to the subject matter are merged into and superseded by this Agreement.

    27.  Time

    Time is of the essence under this Agreement.

    28.  Intention to Form a Legal Relationship

    If this Agreement is being completed electronically, by clicking on the button or checkbox marked with words to the effect of: I accept the terms and conditions of this Agreement

    you are indicating your acceptance of this Influencer Management Agreement and the Influencer Management Terms which is included by reference, and agree to be legally bound by the terms and conditions therein.