Why Every Influencer Agreement Needs a Force Majeure Clause

Influencer marketing only stands to get more popular in the years to come, as consumers increasingly seek out more authentic and practical relationships with brands. But to properly craft these relationships, you must have a clear and consistent relationship with the influencers you bring on.

For many, this clarity and consistency is achieved through the use of an influencer agreement. Designed to outline the terms, compensation, and brand image that these professionals must adhere to, agreements can pave the path for a long-lasting and fruitful partnership. And yet, without a force majeure clause in your influencer agreement, you’re not fully protected from conflict.

French for “superior force,” a force majeure clause is designed to outline what happens if circumstances beyond the control of either a brand or an influencer intervene and impact the work. Venable LLP makes the important note of what happens when an agreement fails to set these terms:

In the absence of a force majeure clause, parties to a contract are left to the mercy of the narrow common law contract doctrines of “impracticability” and “frustration of purpose,” which rarely result in excuse of performance.

Put another way: without these clauses, brands and influencers may not be able to agree about the conditions under which services can’t be rendered- and this could cause a fracture in the relationship. To safeguard against these fractures, consider fortifying your agreements against the following force majeure-level circumstances:

Platform Outage

“Frustration of purpose” seems like an odd term to include in a contract, but this first set of circumstances is a perfect example: what use can an influencer be if their medium of choice is unavailable? Platform outages, such as Facebook’s widespread outage in early March 2019 or YouTube’s October 2018 outage, can understandably affect how an influencer goes about doing their work.

Even if the outage is brief or localized to certain markets, it still benefits you to prepare for the possibility in any agreement you might enter into. Venable LLP advises that “the force majeure clause should be drafted to excuse liability not just with nonperformance […] but also with underperformance.” That is to say, posts may go up but they may not hit defined targets for engagement or conversion. Write these terms into your agreement.

Regional or National Crisis

Given that these influencer posts appear on feeds alongside all manner of news, diversion, and distraction, there are times when it’d simply be in poor taste or poor practice to uphold the terms of an agreement.

During times of natural disaster, regional or national crisis, or national mourning, consider allowing for the pause or deferment of agreed-to content. In this way, your influencer’s time and energy can be saved for when their work might have more impact—while also remaining respectful of your audience and the circumstances.

Operative Term: “Beyond Their Control”

A force majeure clause is designed to standardize a response to circumstances that can’t be anticipated or controlled. With that said, there are a few other scenarios where you may want to specify your preferred course of action:

• It should go without saying that your influencers should not post should your organization be the one in a time of crisis or controversy. And yet I’d recommend saying it anyway- in no uncertain terms, in a written agreement.
• Conversely, an influencer should not post on behalf of your organization if they themselves are embroiled in controversy. Although this may seem intuitive, companies like JerryMedia and individuals like Logan Paul- each entities that have invited their share of scrutiny- do have relationships with brands. And those brands had to make a call on how to proceed when this scrutiny descended upon them.
• Finally, consider defining clearly what behaviors or mentions are off the table, should this individual represent your brand through their own account. Can they mention competitors? What personal behaviors or topics of conversation would you prefer they not engage in? Defining these terms and limits at the outset will prevent embarrassment or missteps in the long run.

Influencer relationships can be incredibly rewarding and highly effective when executed correctly. These agreements can minimize confusion, create a sense of brand safety and protection, and bring a sense of professionalism to the arrangement. And we’ll be speaking at length about the role of influencers in marketing at Social Media Week New York next month- we hope you’ll join us!

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