Influencer Agreement: Website, App And Marketplace Risk Points

Online businesses and startups often turn to influencers to boost their brand, reach new audiences, and drive sales. However, many founders and operators underestimate the legal and operational risks that can arise from poorly drafted influencer agreements. Common mistakes include using generic templates, overlooking disclosure rules, and failing to coordinate influencer contracts with website or app terms. This guide addresses the key risk points for influencer agreements in the context of websites, apps, and marketplaces, and provides practical steps to help you protect your business, reduce disputes, and comply with US law.

What Is an Influencer Agreement?

An influencer agreement is a contract between a business and an individual or entity (the influencer) who promotes the business's products, services, or brand to their audience. These agreements are crucial for setting clear expectations, defining deliverables, and managing legal risk. For online businesses, influencer agreements often interact with other platform policies, such as website terms of service, app user agreements, privacy policies, and marketplace rules.

Influencer agreements typically cover:

• The scope of work (what the influencer will do and where)
• Payment terms (how and when the influencer is paid)
• Content ownership and usage rights
• Disclosure and compliance requirements
• Brand guidelines and approval processes
• Exclusivity or non-compete obligations
• Termination, refunds, and dispute procedures
• Liability, indemnity, and governing law

While federal law, such as FTC guidelines, sets a baseline for influencer marketing, state contract law and industry-specific rules can change how agreements are interpreted and enforced. For example, a California-based business working with a Texas influencer may need to consider both states' laws when drafting the agreement.

Federal and State Legal Requirements for Influencer Agreements

At the federal level, the Federal Trade Commission (FTC) enforces rules around advertising, endorsements, and influencer marketing. The FTC requires influencers to clearly disclose any material connection to the brands they promote. This includes payment, free products, or any other benefit. Disclosures must be clear, conspicuous, and placed where the audience will see them, such as at the beginning of a social media post or video.

Key federal requirements include:

• Disclosure Obligations: Influencer agreements should require influencers to follow FTC guidelines for disclosures, such as using "#ad," "#sponsored," or similar language in posts. The agreement should specify that disclosures must be visible and understandable to the intended audience.
• Truthful Endorsements: Influencers must not make false or misleading claims about your products or services. The agreement should require influencers to only make statements they can substantiate and to avoid exaggerations or unverified claims.
• Monitoring and Enforcement: The FTC expects brands to monitor influencer compliance. Your agreement should allow your business to review influencer posts and require influencers to correct non-compliant content.

State law governs the enforceability of contracts, including influencer agreements. While most states follow similar principles (offer, acceptance, consideration), there are important differences:

• Governing Law and Venue: Specify which state's law applies and where disputes will be resolved. For example, a New York choice of law clause may be interpreted differently in California or Texas courts.
• Non-Compete and Exclusivity: Some states, like California, restrict non-compete clauses, while others allow them if they are reasonable in scope and duration.
• Contract Formalities: Certain states require specific language for waivers, releases, or liquidated damages clauses to be enforceable.

Industry-specific rules may also apply. For example, health, financial, or alcohol-related endorsements are subject to additional federal and state regulations. If your business operates in a regulated industry, your influencer agreement should address those requirements explicitly.

Key Terms to Include in an Influencer Agreement

To reduce risk and set clear expectations, your influencer agreement should address the following points in detail:

• Scope of Work: Define what the influencer is expected to do, including the number and type of posts, platforms used, deadlines, required hashtags, and campaign themes. For example, "Influencer will create three Instagram posts and two TikTok videos featuring Product X, using the hashtag #BrandPartner, to be published between June 1 and June 30."
• Payment Terms: Specify how and when the influencer will be paid. This could be a flat fee, per post payment, affiliate commission, or product gifts. Include payment triggers (e.g., after content approval or after posting) and what happens if deliverables are missed or unsatisfactory.
• Content Ownership and Usage Rights: Clarify who owns the content created. Does your business have the right to reuse, modify, or republish influencer content on its own channels? For example, "Influencer grants Business a non-exclusive, worldwide, royalty-free license to use, reproduce, and display the content for marketing purposes."
• Disclosure and Compliance: Require influencers to comply with FTC guidelines and any additional industry rules. Include specific disclosure language if needed, and require influencers to correct any non-compliant posts promptly.
• Brand Guidelines and Approval: Provide detailed brand guidelines and specify whether your business must approve content before publication. For example, "All content must be submitted for review and written approval by Business at least 48 hours before posting."
• Exclusivity and Non-Compete: State whether the influencer can work with your competitors during or after the campaign. For example, "Influencer will not promote competing skincare brands during the term of this agreement and for 30 days after its conclusion."
• Termination and Refunds: Explain how the agreement can be terminated, what happens to payments if work is incomplete, and how refunds or chargebacks are handled. For example, "If Influencer fails to deliver required content, Business may terminate the agreement and recover any prepaid amounts."
• Indemnity and Limitation of Liability: Address who is responsible if a post causes legal trouble. For example, "Influencer agrees to indemnify and hold Business harmless from any claims arising from Influencer's content or conduct." Limit your business's liability where possible under state law.
• Dispute Resolution: Specify how disputes will be resolved (mediation, arbitration, court) and which state law applies. For example, "Any dispute arising under this agreement will be resolved by binding arbitration in the State of New York."

These terms help set expectations and reduce the chance of misunderstandings or disputes. For online platforms, ensure your website or app terms of use do not conflict with your influencer agreements or other contracts your business uses.

Website, App, and Marketplace-Specific Risks

Engaging influencers through your website, app, or marketplace introduces additional risks and operational challenges. Here are some scenarios and practical examples to consider:

• Platform Terms vs. Influencer Agreements: Your platform may have standard terms of use for all users. If your influencer agreement allows certain content or activities that your platform terms prohibit, this can create confusion or legal risk. For example, if your website bans explicit content but your influencer agreement is silent on this, an influencer might post content that violates your platform rules. Review both sets of terms to ensure consistency.
• Third-Party Content and IP Issues: Influencers often use music, images, or video clips they do not own. Your agreement should require influencers to only use content they have rights to and indemnify your business against infringement claims. For example, "Influencer represents that all music and images used in content are properly licensed."
• Refunds and Customer Complaints: If your platform facilitates transactions between influencers and customers (such as a marketplace for sponsored posts or shoutouts), clarify who is responsible for refunds, chargebacks, or customer complaints. For example, "Influencer is responsible for refunding customers if deliverables are not provided as agreed."
• Data Privacy and Security: If influencers collect or access user data through your platform, your agreement should require them to comply with privacy laws and your privacy policy. For example, "Influencer will not collect, use, or disclose any user data except as permitted by Business's privacy policy and applicable law." This is especially important if your platform serves users in states with strong privacy laws, such as California (CCPA) or Virginia (CDPA).
• Automated or AI-Generated Content: If your platform allows influencers to use AI tools to generate content, address who is responsible for reviewing and approving AI-generated posts, and how copyright or disclosure rules apply. For example, "Influencer is responsible for ensuring that AI-generated content complies with all applicable laws and platform policies."
• Marketplace Liability: If your business operates a marketplace connecting brands and influencers, clarify your platform's role. Are you acting as an agent, or are brands and influencers contracting directly? Your agreement should address liability, payment flows, and dispute resolution for all parties.

Each of these points can create legal or reputational risk if not addressed in your influencer agreement and platform policies. Review your website or app terms regularly to ensure they align with your influencer contracts and any other agreements you use in your business.

Example: Suppose your marketplace connects fitness brands with influencers. A brand hires an influencer to promote a supplement. The influencer posts a video with unsubstantiated health claims and fails to disclose the paid relationship. The FTC investigates, and a customer files a complaint about a misleading claim. If your agreements and platform policies do not clearly address disclosure, content approval, and liability, your business could face regulatory action and reputational harm.

Checklist: What to Review Before Signing an Influencer Agreement

• Confirm that the agreement clearly defines the scope of work and deliverables.
• Check that payment terms, triggers, and refund policies are specific and realistic.
• Ensure content ownership and usage rights are addressed (who can use the content, and how).
• Verify that the agreement requires compliance with FTC disclosure rules and any industry-specific regulations.
• Review brand guidelines and content approval processes.
• Assess any exclusivity or non-compete clauses for reasonableness and compliance with state law.
• Check that termination, refund, and dispute resolution procedures are clear and practical.
• Review indemnity and liability clauses to understand your business's exposure.
• Make sure the agreement aligns with your website, app, or marketplace terms of use and privacy policy.
• Consider state law differences, especially if parties are in different states.

Use this checklist for each influencer campaign or onboarding process. Regularly review and update your agreements as your business grows or legal requirements change.

Common Mistakes and How to Avoid Them

Many startups and online businesses make similar mistakes when working with influencers. Here are some of the most common, along with practical tips to avoid them:

• Using Generic Templates: Generic influencer agreements often miss key terms or fail to address your specific business model. For example, a template may not cover marketplace-specific issues like third-party payments or dispute resolution. Tailor your agreement to your platform and consider seeking legal advice.
• Ignoring Disclosure Requirements: Failing to require clear disclosures can lead to FTC enforcement actions, fines, and reputational damage. Include specific disclosure language in your agreement and monitor influencer compliance. For example, require influencers to use "#ad" at the beginning of every sponsored post.
• Unclear Payment or Refund Terms: Vague payment triggers or refund policies can lead to disputes. For example, if it is not clear whether payment is due before or after content approval, both parties may have different expectations. Be specific about when payments are due, what happens if deliverables are missed, and how refunds are handled.
• Overlooking Content Ownership: If you do not clarify who owns the content, you may not be able to reuse or promote influencer posts. Address intellectual property rights in your agreement and consider whether you need a license or assignment of rights.
• Missing State Law Differences: If your business or influencers are in different states, failing to specify governing law and dispute resolution can complicate enforcement. For example, a non-compete clause valid in Florida may not be enforceable in California.
• Not Aligning Platform and Influencer Terms: Conflicting terms between your website/app policies and influencer agreements can create confusion and risk. Review both sets of terms together and update them as needed.
• Not Addressing Data Privacy: If influencers access user data, failing to include privacy and security requirements can expose your business to liability, especially under state privacy laws.
• Neglecting Monitoring and Enforcement: The FTC expects brands to monitor influencer compliance. Your agreement should allow you to review posts and require influencers to correct non-compliant content. Set up a process for regular monitoring.

To avoid these mistakes, create a standard onboarding process for influencers that includes contract review, training on disclosure requirements, and regular compliance checks. Keep records of all agreements and communications with influencers.

FAQs

Do influencer agreements need to be in writing?

While oral agreements can be legally binding in some situations, a written influencer agreement is strongly recommended. A written contract provides clear evidence of the terms, reduces misunderstandings, and is easier to enforce if a dispute arises. Many platforms require written agreements for all influencer relationships. Some states, such as New York, require certain types of contracts (like those involving intellectual property assignments) to be in writing to be enforceable.

What disclosures are required in influencer marketing?

The FTC requires influencers to clearly disclose any material connection to a brand, such as payment, gifts, or other compensation. Disclosures must be clear, conspicuous, and placed where the audience will see them. Common disclosure formats include "#ad," "Sponsored," or a statement in the content itself. Your agreement should require compliance with these rules. State law may impose additional requirements, especially for endorsements of regulated products.

Can I require exclusivity from an influencer?

Yes, you can include exclusivity or non-compete clauses in your influencer agreement, but these must be reasonable in scope and duration. State law may limit how restrictive these clauses can be. For example, California generally does not enforce broad non-competes, while Texas and Florida may allow them if they are narrowly tailored. Specify exactly what competitors or products are covered and for how long, and consult legal advice if you have questions about enforceability in specific states.

Who is liable if an influencer makes a false claim?

Both the influencer and the business can be held liable if a post contains false or misleading claims. Your agreement should require influencers to only make truthful statements and indemnify your business against claims arising from their content. Monitor influencer posts for compliance and address issues quickly. In regulated industries, such as health or finance, liability for false claims can be particularly severe.

What happens if an influencer does not deliver as agreed?

Your agreement should specify what happens if deliverables are missed, such as payment reductions, refunds, or termination rights. Clear terms help prevent disputes and provide a process for resolving issues if an influencer fails to meet their obligations. For example, "If Influencer does not deliver required content by the deadline, Business may terminate the agreement and recover any prepaid amounts."

Key Takeaways

• Influencer agreements are essential for online businesses working with influencers through websites, apps, or marketplaces.
• Federal FTC rules require clear disclosures and truthful advertising, but state contract law and industry rules can add extra requirements.
• Key contract terms include scope of work, payment, content ownership, disclosures, brand guidelines, exclusivity, termination, and liability.
• Align your influencer agreement with your platform's terms of use and privacy policy to avoid conflicts and reduce risk.
• Common mistakes include using generic templates, unclear payment terms, missing disclosure or IP clauses, and not addressing data privacy or monitoring obligations.
• Review and update your agreements regularly as your business or legal requirements change. Consider seeking legal advice for complex or high-value campaigns.

If you need help reviewing or drafting an influencer agreement for your website, app, or marketplace, contact our team at (888) 449-8437 or team@sprintlaw.com. Where legal services are required, they are delivered by licensed lawyers at trusted US law firms through the Sprintlaw platform.