Social Media Creator Agreement

Parties

This Agreement is made between:

(1) DERMA BOTANICA LTD., a company incorporated and registered in the State of Delaware with File Number 7692072, having its registered office at 254 Chapman Rd, Suite 208 #20288, Newark, DE 19702, USA (“Derma Botanica”); and

(2) The Creator, as identified in the relevant Insertion Order (“the Creator”).

Derma Botanica and the Creator are referred to individually as a “Party” and together as the “Parties.”

BACKGROUND

Derma Botanica wishes to engage the services of the Creator in relation to the promotion of the Brand, and the Creator has agreed to provide services (the Services) to Derma Botanica on the terms set out in this Agreement.

IT IS AGREED AS FOLLOWS:

1. Definitions and Interpretation

Advertising Materials means any advertising, marketing, promotional or other materials including (without limitation) any packaging, labels, containers, advertisements, posters, brochures, letters, and other promotional and/or display material, in any and all media by any form of electronic communication, manufactured or produced for the promotion of the Brand.

Analytics means the following anonymised data which must be provided by the Creator to Derma Botanica in a durable, electronic form, and which must be complete and accurate:

In relation to Instagram posts or stories: “reach”, “impressions”, and “engagements”.
YouTube: views, “engagements”, view-time, audience demographic metrics.
Facebook: “reach”, “impressions”, and “engagements”.
Twitter: “impressions” and “engagements”.
Other data as Derma Botanica may reasonably require.

Applicable Laws means all laws, regulations, codes, and advertising standards.

Brand means the brand specified in the Insertion Order.

Confidential Information means non-public business-related information.

Content means the deliverables to be created by the Creator.

Fees means the amount payable to the Creator, as stated in the Insertion Order.

Group Company includes Derma Botanica’s holding/subsidiary companies.

Creator means the individual identified in the Insertion Order.

Intellectual Property Rights include all IP rights globally, whether registered or unregistered.

Insertion Order means the specific agreement document outlining deliverables and fees.

Image Rights means rights to the Creator’s likeness for brand use.

Services means the activities outlined in the Insertion Order.

Term means 5 years or until all Services are completed, whichever is later.

Trade Secrets means proprietary business information including Fees.

1.2 References to clauses and schedules refer to those in this Agreement.

1.3 Clause headings are for convenience only and do not affect interpretation.

1.4 Words in the singular include the plural and vice versa. Gender references apply to all genders.

1.5 This Agreement binds and benefits the Parties and their permitted successors.

1.6 Statutory references include amendments and re-enactments.

1.7 References include all related subordinate legislation.

1.8 If this Agreement and Insertion Order conflict, this Agreement prevails.

2. Services

Derma Botanica hereby agrees to engage the Creator and, in consideration for the payment of the Fees, the Creator agrees to provide the Services and grant the rights to Derma Botanica on the terms and conditions set out in this Agreement.

3. The Creator’s Obligations

3.1 The Creator will provide the Services in a timely (time being of the essence) and professional manner and with a high degree of skill and care, and in compliance with all Applicable Laws, including by clearly and obviously identifying that it is promoting or advertising the Brand on a paid basis (if that is the case). The Creator acknowledges that Derma Botanica owes contractual and reputational obligations to the Brand, and that any failure by the Creator to comply with his or her obligations under this Agreement, and particularly this clause, may cause damage to Derma Botanica’s reputation and result in financial loss.

3.3 In providing the Services, the Creator will always abide by FTC Guidelines, ASA’s Code of Advertising Practice and any other applicable regulatory framework, and will ensure that all of his or her social media posts which promote the Brand, or the Brand’s products and/or services, are clearly identified as paid-for promotions.

3.4 If, for any reason, Derma Botanica is required to pay or withhold any federal, state, or local income taxes, self-employment taxes, penalties, or interest in connection with the payment of the Fees, Derma Botanica shall be entitled to deduct such amounts from any sums due to the Creator under this Agreement or recover them directly from the Creator.

3.5 The Creator hereby represents and warrants to Derma Botanica that:

(a) He or she is entitled and has the necessary rights to enter into this Agreement and to grant all rights and consents hereunder.
(b) He or she has not been convicted of a criminal offence (other than a minor road traffic offence not punishable by a custodial sentence) or carried on a course of conduct or been involved in any activity which (if it were to become known) might reasonably be expected to bring the Creator or Derma Botanica and/or the Brand into disrepute or cause harm.
(c) The Creator shall not carry on such conduct which may lead to a conviction of a criminal offence (other than minor road traffic offences).
(d) The Creator shall not carry on any conduct which, in Derma Botanica’s discretion, may cause embarrassment or ridicule to Derma Botanica and/or the Brand or bring them into public disrepute.

4. The Creator’s Image Rights

The Creator warrants that he or she has the power and right to grant, and hereby grants to Derma Botanica the Image Rights, sub-licensable to the owner of the Brand, to promote the Brand and its products and/or services during the Term.

Following the expiry of the Term, Derma Botanica and the Brand shall have:

(a) The perpetual right to reference or link to any publications resulting from the Creator’s performance of the Services.
(b) The right to refer to the Creator’s provision of the Services and historic connection with the Brand (e.g. in a public list of past partners).
(c) The right to retain copies of Advertising Materials for archival and library purposes in perpetuity.

5. The Content

5.1 The Creator shall provide the Content to Derma Botanica by the date and time set out in the relevant Insertion Order, and in any event in good time in advance of the time for the performance of the relevant Services, to allow Derma Botanica to approve (or otherwise) the Content.

5.2 The Creator shall not publish, or allow to be published, any Content without the prior written (including by email) consent of Derma Botanica which, subject to clause 5.1, shall not be unreasonably withheld or delayed.

5.3 The Creator warrants and represents that:

(a) The Content shall not be offensive, derogatory, or fail to comply with any Applicable Law.
(b) The Content will be original work created exclusively for fulfilling obligations under this Agreement, and neither it nor its use will infringe the rights of any third party.

5.4 Only the Creator and Derma Botanica may use or post the Content. Derma Botanica may sub-license this right (e.g., to the Brand). The Creator grants Derma Botanica a sole (exclusive of third parties), worldwide, irrevocable, sub-licensable, transferable, royalty-free licence to use the Content and any associated IP Rights for the period and purposes set in the Insertion Order. Derma Botanica may archive the Content after this period. The Creator shall not allow third-party use of the Content at any time.

5.5 Any use made of the Content by Derma Botanica and/or its licensees prior to the expiry of the above licence shall not be affected by such expiry. They retain the worldwide, irrevocable, royalty-free right to maintain any such publications, and the Creator shall have no right to demand deletion, removal, blurring, or archiving unless otherwise agreed.

5.6 The Creator hereby waives all moral rights (e.g., right to be identified as author, or to object to derogatory treatment) in all works produced under this Agreement, including the Content, as allowed under Chapter IV of the Copyright, Designs and Patents Act 1988 and equivalent global legislation.

5.7 If requested in writing by Derma Botanica, the Creator will remove specified Content from public view and prevent further access to it.

6. The Brand’s Intellectual Property Rights

6.1 Derma Botanica grants the Creator a non-exclusive, non-sublicensable, non-transferable, royalty-free licence to use the Brand’s Intellectual Property Rights during the Term solely for performing the Services.

6.2 Nothing in this Agreement constitutes a warranty by Derma Botanica or the Brand that use of their Intellectual Property Rights or any Content will not infringe Applicable Laws or third-party rights.

7. Fees

7.1 In consideration for the Services and rights granted herein, Derma Botanica shall pay the Creator the Fees set out in the applicable Insertion Order.

7.2 The Creator shall submit an invoice for the Fees in accordance with the Insertion Order instructions.

7.3 Subject to a valid invoice and satisfactory performance (including Content approval), Derma Botanica shall process payment as per the timeline and method specified in the Insertion Order.

7.4 All sums are exclusive of taxes. The Creator shall handle any applicable taxes and issue a valid tax invoice if required.

8. Confidential Information

8.1 The Creator acknowledges that the business of Derma Botanica, or any of its Group Companies, is a specialised and competitive business and that during the Term he or she may have access to Derma Botanica's Trade Secrets and the Brand’s Trade Secrets. The Creator further acknowledges that disclosure of any Trade Secrets to actual or potential competitors could seriously damage Derma Botanica and/or the Brand, financially or otherwise, and may cause irreparable harm.

8.2 The Creator agrees not to disclose any of Derma Botanica’s or the Brand’s Trade Secrets during or after the Term of this Agreement, except:

(a) To legal representatives who need the information for advising the Creator, provided they are bound by similar confidentiality obligations.
(b) As required by court order or regulatory authority, in which case, if not prohibited by law, the Creator will notify Derma Botanica in advance.
(c) If the information ceases to qualify as Trade Secrets through no fault of the Creator.

9. Status and Authority of the Creator

9.1 The Creator is engaged as an independent contractor. Nothing in this Agreement renders the Creator an employee, agent, or partner of Derma Botanica or the Brand. The Creator must not present themselves as such.

9.2 While the Creator may describe themselves as a “partner” or “advisor” during performance of the Services, this does not create a legal partnership. The Creator may not pledge the credit of Derma Botanica or the Brand, sign contracts on their behalf, or act as their agent. The Creator shall indemnify Derma Botanica and the Brand for any losses or liabilities resulting from a breach of this clause.

10. Indemnity

10.1 The Creator agrees to indemnify and hold harmless Derma Botanica and the Brand against any liabilities, losses (including direct, indirect, or consequential losses, reputational damage, or legal costs), damages, or expenses resulting from:

(a) Any federal, state, or local taxes, penalties, or interest related to the Creator's compensation, including disallowed deductions or credits claimed by Derma Botanica.
(b) Any breach of the warranties set out in clause 5.
(c) Any unauthorised act, negligence, or breach of duty by the Creator.
(d) Any conduct by the Creator that results in reputational damage to Derma Botanica or the Brand, or brings them into public disrepute.

11. Term and Termination

11.1 This Agreement shall commence on the date set out in the relevant Insertion Order and shall continue until the end of the Term unless terminated earlier in accordance with this clause.

11.2 Derma Botanica may terminate this Agreement at any time by written notice to the Creator or if the Creator:

(a) Commits a material breach of this Agreement and fails to remedy it within 14 days of written notice from Derma Botanica.
(b) Is in persistent breach of the material terms of this Agreement.
(c) Suspends or is unable to pay debts, or admits inability to pay debts as they fall due.
(d) Enters negotiations or arrangements with creditors to reschedule debts.
(e) Becomes subject to bankruptcy proceedings or has a bankruptcy order made against them.
(f) Becomes subject to administration proceedings or has an administrator appointed.
(g) Has a receiver appointed over their assets.
(h) Has any part of their assets seized or becomes subject to enforcement actions not discharged within 14 days.
(i) Is subject to similar insolvency proceedings in any jurisdiction.
(j) Suspends or ceases substantial business operations.

11.3 The Creator may terminate this Agreement immediately by written notice if Derma Botanica:

(a) Commits a material breach not remedied within 14 days of notice.
(b) Is in persistent breach of the Agreement.
(c) Suffers an Insolvency Event.

11.4 Expiration or termination of this Agreement shall:

(a) Be without prejudice to any claims arising from prior breaches.
(b) Not affect provisions intended to survive termination, including clauses 1, 3.5, 4, 5.5, 5.6, 9, 11, 12.4, and 13.

12. General

12.1 No variation of this Agreement shall be effective unless in writing and signed by both Parties.

12.2 The Creator shall not assign, transfer, or subcontract their obligations without prior written consent from Derma Botanica.

12.3 The Creator warrants that their performance will not infringe any third-party rights or contractual obligations.

12.4 Notices must be in writing and sent by email (to the address in the Insertion Order) or by registered post or courier to the relevant Party’s registered address.

12.5 This Agreement does not confer rights on third parties except that Derma Botanica may enforce any clause benefiting them.

12.6 Each Party acknowledges that it has not relied on any oral or written representations not expressly included in this Agreement.

12.7 This Agreement constitutes the entire understanding and supersedes all previous agreements on the same subject.

12.9 Waivers must be in writing. Failure or delay to exercise a right is not a waiver of that or other rights.

12.10 This Agreement may be executed in counterparts. All signed copies together constitute one agreement.

12.11 This Agreement and any dispute arising out of it shall be governed by the laws of the State of New York. The Parties submit to the exclusive jurisdiction of the courts located in New York.

13. No Liability for Creator and Product Use

13.1 Disclaimer of Creator Liability:
The Parties acknowledge that any Creators associated with the Brand, including those appearing in promotional content or providing endorsements, shall not be liable for any claims, damages, or losses arising from or related to skin irritation, allergic reactions, or other adverse effects experienced by consumers as a result of using the Brand’s products. Consumers are expressly advised to consult their own healthcare provider prior to using any skincare product, particularly if they have known sensitivities, allergies, or medical conditions.

13.2 Notice of Claims:
The Creator shall immediately notify Derma Botanica in writing of any complaints, claims, or allegations made by consumers regarding any skin irritation, allergic reactions, or other adverse effects allegedly caused by the Brand’s products. The Creator shall not make any statements or representations regarding such complaints without the prior written consent of Derma Botanica.