1. The Services
By entering into an Agreement with us on these Terms, you undertake to promote DW and DW’s products on the social media accounts you and we agree upon (the “Account(s)”) in accordance with the Agreement. We will agree upon how many posts you shall create and upload on your Account(s) (individually a “Publication”, collectively the “Publications”). The Publication(s) shall always be exclusively about DW.
The Publications will consist of pictures/videos and texts, as agreed upon between the Parties (the “Content”). More detailed information and requirements with respect to the Publications are set out below as well as in the briefings and/or other information provided to you by DW. The services mentioned above shall hereinafter be referred to as the “Services”.
2. Content and Publication Requirements
The following conditions and requirements apply on all Publications:
a) The pictures/videos used in the Content must be in high quality resolution, without blurs, and any audio shall be loud and clear. The products provided by DW must have a central position in the Content and, if a watch, the watch and the face of the watch must be shown in the Content with the Daniel Wellington logotype on the watch clearly visible and readable. All written text shall be made in a clear and legible font and size. No other accessory, brands, or distractions, which draws attention from the products, may be visible in the Content without prior written approval from DW.
b) The Content shall be in accordance with and include what has been mentioned in these Terms, in the Agreement, as well as in any brief shared by DW. DW has the right to demand that posted Publications shall be removed, and/or edited, and re-uploaded if the publication is not in accordance with the briefing or agreement.
c) The Creator must send the Content to its DW contact (pictures shall be sent in JPEG format) for approval as soon as possible. Unless the Creator and the DW contact has agreed otherwise, the Content shall be sent for approval no later than three (3) business days before the agreed time of posting.
d) The Creator shall not post any other commercial publications on the Account(s), within a period of twelve (12) hours before and twelve (12) hours after posting any Publications pursuant to the Agreement.
e) The Publications shall be permanent and may not be actively removed unless otherwise instructed by DW in writing. f) The Creator undertakes to be exclusive for DW during one (1) month before and one (1) month after each Publications posting date, meaning that the Creator shall not, during this period, initiate or carry out any existing business relations with a DW competing company (being a company selling watches or accessories), to market the competitor’s products. This will include, but not be limited to, mentioning the competing brand in a text or hashtag.
The Creator and DW will agree on the compensation for the Services in the Agreement. Unless the Parties agree otherwise, compensation shall be given by DW to the Creator when the Services have been provided in full in accordance with the Agreement, and all and any taxes (including, if applicable, VAT), charges, fees etc. that may be applicable on the performance of the Services under the Agreement shall be borne by the Creator.
The Creator is not entitled to any other compensation than what is explicitly agreed upon in the Agreement between the Parties. DW will thus not cover any expenses for creating the Content, traveling expenses, accommodation expenses etc. unless the Parties agree to such compensation in writing in advance. If the Creator is entitled to compensation for expenses, DW will only compensate the actual cost and will not pay any additional charges or fees. The Creator will be asked to submit receipts or invoices for the expenses before any compensation of them is paid.
4. Advertising commitment
The Creator must comply with all applicable laws and regulations regarding advertising and marketing, as well as any platform terms applicable on the Account(s), when performing any marketing services for DW or otherwise when performing its obligations under the Agreement. This includes (but is not limited to) inserting disclosure language such as #SPONSORED or #AD (or any additional information required by applicable laws, including but not limited to necessary language translations) in the caption, in order to make it directly clear to the viewers of the Publications that the Publications are advertisement for DW. The disclosures cannot be hidden. Disclosures must instead be made in a clear and prominent way in the beginning of a Publication and above the “show more”-button, if any, on the Account(s). In videos, the Creator must also orally disclose that the video is advertisement for DW in the beginning of the video. Regardless of the circumstances, the Creator shall always be obligated to comply with this section 4, always and in each case. This means, for example, inserting necessary disclosures, in accordance with local laws and standards, into a caption provided by DW.
As DW’s collaboration partner, the Creator agrees to comply with the following:
a) Not to make any false statements about, regarding or relating to DW, its business or its products or present information that otherwise is not consistent with DW’s image (such as fraudulent, violent or sexual content), misleading towards consumers or not compliant with applicable regulations and the user terms and conditions of the platform where the act or omission has taken place.
b) The Creator is not entitled to any rights regarding DW’s intellectual property rights and may for the sake of clarity, the Creator is thus not entitled to include any of DW’s trademarks (including logos) in any profile information, domain name or user/account name on a website, social media platform, application or elsewhere.
c) If a certain Content does not correspond to what has been agreed, the Creator shall as soon as practically possible, keeping the agreed upon deadlines in mind, 1) correct the Content or 2) create new Content which is correct. DW reserves the right to decide which of the two alternatives that should apply in each case. Any actions under this clause c) shall never result in additional compensation to be given by DW.
d) The Creator grants DW and its affiliated companies a royalty-free, perpetual, worldwide license to freely use, repost, reproduce, and edit the Content in all internal and external digital, print and motion media, including but not limited to OOH, DOOH, print, PR, magazines, newsletters, online, on DW’s and its affiliated webpages, social media marketing, POS, instore screens, and trade fairs/events. DW may refer to the Creator in accordance with legal requirements and common business practice, but in a manner to be decided by DW in its sole discretion. To the extent permittable in law the Creator waives its moral rights to the Content. This license to the Content can also be transferred and sublicensed by DW and its affiliated companies to third party collaborators for the purpose of promoting products under the Daniel Wellington brand.
e) DW has the right (but no obligation), by monetary means, to advertise the Publications via Instagram/Facebook/TikTok to boost the visibility of the Publications. The Creator shall therefore give DW advertiser rights to each Publication when uploading a Publication (i.e., by clicking on “Allow business partners to promote” in advance settings on the Account(s) or similar procedure available on the applicable platform), and maintain such advertiser rights for each and every Publication during the term of the Agreement.
f) The Creator guarantees that it has all the rights to the Content, including but not limited to copyright, trademark rights, licenses from copyright collecting societies (if any) and paid any fees related to the same. The Creator also guarantees that it has obtained all necessary consents of any individuals appearing in the Content and that it has the right to grant DW the free use of the Content for the purpose described in these Terms. For the avoidance of doubt, DW shall have the right, but no obligation to publish or otherwise make use of the Content on its own accounts.
g) The Creator must keep all communication the Creator has with DW confidential, including information the Creator receive about how DW carries out its operations in social media, new product releases, or any other information that might be sensitive to DW from a business perspective. This confidentiality obligation shall survive any termination of the Agreement between the Parties.
h) If the Creator has received unreleased DW products by DW, for the purpose of creating Content in which the unreleased DW products are visible, such DW products are covered by the confidentiality undertaking in these Terms, and the Creator may not wear, publish, distribute, share or otherwise show the unreleased DW products before the launch date, as specified by DW in writing.
i) The DW products needed for the collaboration will be sent to the address provided by the Creator.
6. About the Parties and the Creator warranties
The Creator represents and warrants that it holds all and any licenses that may be required to comply with its obligations under these Terms, including (but not limited to) all required tax certificates.
The relationship between the Parties is that of independent contractors. Nothing contained in these Terms, or the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between DW and the Creator. Neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. As such, DW shall have no obligation to carry out specific payments (other than those explicitly mentioned herein or as otherwise agreed between the Parties in writing). DW shall not be responsible for any taxes, employee benefits or similar (i) to, (ii) on behalf of, or (iii) for the benefit of, the Creator.
The Creator acknowledges and agrees that DW will not provide the Creator with any insurance and that the Creator will solely maintain the obligation to pay all taxes and costs (including payroll taxes and social security fees) payable in connection with any compensation (being monetary, beneficial, or other form of compensation) (or similar) of any kind provided under this Agreement to the Creator.
7. Damages and liability
In no event shall DW be liable for any consequential, incidental, indirect, exemplary, punitive, special, or other damages, including but not restricted to damage to property and/or person, whatsoever resulting from the Creator’s performance or failure to perform under the Agreement. If the Creator is required by law or regulation in applicable jurisdiction to hold a license for performing any of the Services and fails to possess such license, DW shall have no liability for any non-compliance with such regulations by the Creator. The Creator agrees to defend, indemnify, and hold DW harmless from and against all claims, liabilities, costs, expenses, damages and losses arising from a breach of these Terms and the Agreement.
8. Formation of agreement, term and termination
A binding agreement between the Parties have been entered into when confirmed in writing, email being sufficient, by an authorized representative of DW. These Terms will be an integrated part of the Agreement. The Parties will agree upon dates for performing the Services and, unless the Parties agree otherwise, the Agreement is terminated when all Services have been performed or when DW has fully compensated the Creator, whichever comes last.
If the Creator does not comply with the terms of the Agreement (which, for the sake of clarity includes these Terms), DW is entitled to either immediately terminate the Agreement upon written notice and/or to receive reasonable compensation for each breach, such as additional Content created and posted by the Creator, at DW’s sole discretion. If DW terminates the Agreement in accordance with this point, DW has no obligation to compensate the Creator. In that case, DW has the right to request the Creator to pay for any DW products it has received from DW and/or to repay any compensation paid by DW.
In addition to the foregoing, DW reserves the right to terminate the Agreement with immediate effect upon written notice if DW, in good faith, believes that the business relation between DW and the Creator has or will seriously damage DW’s reputation or brand (acting reasonably with documented facts).
The Terms and the Agreement are construed in accordance with and shall be governed by the laws of Sweden. Any dispute controversy or claim arising out of or in connection with this contract, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration in accordance with the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce for expedited arbitration procedure. The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English, unless the Parties agree to use Swedish.