Reviewer's Disagreement - Tested Technology

I’m loath to use the term “Fake News”. But America’s strange President has got one thing right: there’s a lot of it about.

I’d generally assumed that the rise of the Influencer—the amateur enthusiast who’s discovered there’s money, or even a career, to be made by exercising that enthusiasm on social media—was a grass-roots phenomenon. And, as such, to be encouraged.

Influencers work fast. They might get things wrong. They might even be tempted to stray a little from the truth for personal gain. Some of them do sometimes. You get Fake News. These things happen.

But it’s turning nasty. Once you understand that IT reviews may now be underpinned by legal arrangements like the so-called “agreement” I received from Synology yesterday, things fall apart.

Who can you trust?

SYNOLOGY INC, FOUNDED AT THE TURN of the century by a couple of ex-Microsoft employees, is a Taiwanese manufacturer of NAS devices.

Damn good ones, too. Their on-going rivalry with QNAP, the other, slightly newer, NAS manufacturer in their homeland, has kept both companies on their toes. Together, in less than two decades, they’ve captured a market created and once briefly owned by the Japanese.

Tested Technology has so far reviewed only one of Synology’s products. This is something I was keen to correct. Over the past five years we’ve published 16,000 words and a total of eight different articles about QNAP. It seemed only fair, to Synology but chiefly to readers, to redress the balance.

Having only covered Synology’s very basic, single-drive DS119j, I looked forward to reviewing more of their devices and exploring the DSM operating system in greater depth than that entry-level hardware allowed.

But it seems that’s not going to happen. Here’s why.

Background: On Monday, October 14th, Tested Technology received an email from Synology, evidently a round robin to multiple IT product reviewers. On the face of it, this was a fairly standard PR offering of a product for review:

Hello media partners!

We have exciting news! We currently have our new unit the DS120j releasing very soon and limited stock available for review purposes.

The DS120j is the brand-new 1-bay NAS designed with NAS starters in mind. With a dual-core CPU and 512MB DDR3 memory, DS120j delivers an easy-to-use personal cloud storage solution for storing, sharing and protecting personal data.

As we had reviewed an earlier, less powerful version of the NAS this seemed like a good opportunity for a follow-up. I wrote back saying we’d like to go ahead.

Synology’s response gave us the first hint that things wouldn’t be quite as straightforward as we’d assumed.

Thank you for taking the interest in wanting to review our latest product. We have very limited supply of this new unit and a large influx of people who would like to test it too.

Please can I ask where you intend to publish the review and your initial plans for content?

In other words, Synology now seems to be saying: We bunged out our first email in quantity with little thought of who we were sending it to (although earlier that year Tested Technology had been in close touch with the company over the review of the previous product). The response to our deluge has been a “vast influx” of requests, so please tell us more about yourself so we can judge if you are worthy.

I decided to ignore the poor relationship management in evidence here and responded cheerfully with a reminder of the earlier review, suggesting that covering the new product would bring things up to date for our readers.

It seems that we now passed muster. Synology’s next email appeared encouraging until I read:

If you’re happy moving forward we would like to firstly send you over a written agreement which you will be required to sign. It will include areas of what to include in your review, where you can post, use of vulgar language and how to resolve controversial opinion etc.

Oh, wait…

“Required to sign” wasn’t too bad. After 30+ years as an IT reviewer I must have put my autograph to dozens of non-disclosure and loan agreements. And “vulgar language” will never appear in Tested Technology. If a product turns out to be a piece of shit, readers won’t ever see that phrase—because we just won’t waste their time with that review.

But seeking to dictate “areas of what to include in your review” started to ring alarm bells.

My relationship with vendors and manufacturers has always been based on: You deliver the kit. I’ll kick it around as long as necessary to find out all about it. I’ll tell the readers about it all. Then you get the kit back, if that’s what you want. If you’re happy to leave it with us for future reference, that’s useful. I’ll tell the readers about the donation.

Synology said they’d be sending the agreement over shortly and they’d deliver the unit once I’d signed it.

The “agreement”, when it arrived a fortnight later, turned out to be a shocker.

You don’t have to read it all (I didn’t) to understand that it was, as I wrote back to Synology the same day, “Completely impossible for me—or indeed, any independent reviewer trusted by their readers—to sign”.

What’s wrong with it?

Everything.

Firstly, it’s drawn up as a contract of employment. The underlying assumption is that the reviewer is working for the Company.

Yes, in my heyday I have written White Papers and technology articles as a hired hack for various IT companies. These have never been untruthful but may have been, shall we say, optimistically slanted. To separate this from my journalistic work I always insisted on anonymity.

I enjoyed it. And I got paid. Between £500 and £1,000 a day. The reimbursement suggested in the Synology agreement seems to be that I’m allowed to keep this £100 single drive NAS.

Neither did I particularly relish being mistaken for “an Influencer”. To quote from the definition section of this long Synology document:

Influencer: means an individual who has built up a substantial following and has the ability to influence their followers to purchase a product of the Company by promoting or recommending the product on their Platform. The person uses their Platform to offer advice and information about the Company’s product and influence consumer-purchasing decisions.

So here was Tested Technology being characterised as work-for-hire for the purpose of “influencing consumer-purchasing decisions”.

I concluded my brief response to Synology like this:

The entire premise is entirely wrong.

> Purpose means the production of Reviews by the Reviewer for the Company which will be displayed on the Reviewer’s Platform to market the Company’s products.

Reviews are not produced by the reviewer for the COMPANY. They are written for the READERS.

I was very much looking forward to reviewing this and other Synology products in the future. It’s an interesting platform I was hoping to explore much further with my readers.

But I’m sorry to report that this document closes down that option altogether.

Below is the “Agreement” in full. And, yes, “dated 2019” [sic]. Read as much of it as you can stomach.

THIS REVIEWER’S AGREEMENT is dated 2019

PARTIES

Synology UK Limited, a Company incorporated and registered in England and Wales with company number 06472865 whose registered office is at Sovereign Court, 230 Upper Fifth Street, Central Milton Keynes, MK9 2HR (the Company).

Chris Bidmead of Tested Technology

Synology UK Limited wishes to engage the services of the Reviewer to provide Reviews of one or more Company products (hereafter referred to as Units) of the Company. The Reviewer is to be engaged on a continuous basis in the provision of such Reviews for, and on behalf of, the Company unless and until the Agreement is terminated in accordance with the terms of this Agreement.

AGREED TERMS

Definitions and Interpretation

The definitions and rules of interpretation in this clause apply in this agreement (unless the context requires otherwise).

Commencement Date: 4^th November 2019

Confidential Information: means information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the products, clients, sponsors, business, affairs and finances of the Company for the time being confidential to the Company and trade secrets including any know-how relating to the business of the Company, its Associated Company and its business contacts.

Engagement: means the engagement of the Reviewer by the Company on the terms of this agreement.

Force Majeure means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement. Inability to pay is not Force Majeure.

Initial Term means one year from the date of this Agreement.

Intellectual Property Rights: means patents, rights to inventions and ideas, copyright and related rights, trademarks, trade names and domain names, rights to confidence, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how), together with any right to apply for any such intellectual property rights and the benefit of any applications for any such intellectual property rights and any other intellectual property rights, in each case whether registered or unregistered.

Influencer: means an individual who has built up a substantial following and has the ability to influence their followers to purchase a product of the Company by promoting or recommending the product on their Platform. The person uses their Platform to offer advice and information about the Company’s product and influence consumer-purchasing decisions.

Platform means the form of social media used by the Reviewer to produce, upload and display Reviews including (but not limited to) its website (known as http://www.testedtechnology.co.uk/), YouTube channel, blog, Twitter, Facebook, Instagram or any other medium, features, content, or applications offered or operated from time to time by use whether accessed via the internet, mobile device or other electronic device.

Purpose means the production of Reviews by the Reviewer for the Company which will be displayed on the Reviewer’s Platform to market the Company’s products.

Reviews means any content which is produced, uploaded and displayed on the Reviewer’s Platform and is intended to market the Company’s products in return for which the Reviewer receives consideration from the Company.

Services: means the services described in clause 5 of this Agreement.

Termination Date: means the date of termination of this Agreement which is defined in clauses 2, 3 and 10 of this Agreement.

Title means the legal right of ownership to one or more Units which entitles the holder of the Title to receive, possess, retain, control, sell or otherwise dispose of the Units.

Units means any of the Company’s products which are provided to the Reviewer as the basis of the Review and will form the consideration given by the Company to the Reviewer in return for Reviews provided by the Reviewer.

1. The headings in this agreement are inserted for convenience only and shall not affect its construction.
2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
3. A reference to one gender includes a reference to the other gender.
4. Unless the context otherwise requires, words in the singular shall include the plural and the plural shall include the singular.
5. The schedules to this agreement form part of (and are incorporated into) this agreement.

Term of Engagement
1. The Engagement shall commence on the Commencement Date and shall continue unless and until terminated:
  1. in accordance with clause 3 of this Agreement where the Reviewer has complied with the requirement to maintain satisfactory Reviews on the Platform for at least one year from the date during the Initial Term when it was uploaded by the Reviewer on to the Platform and one or both parties have notified the other party that they no longer wish to continue this Agreement; or
  2. in accordance with either clause 8.1 or 8.2 of this Agreement.
Basis of the Contract
1. The Company has selected the Reviewer to produce the Reviews on the basis of his expertise and competence as an Influencer. The Reviewer will produce the Reviews on this agreed basis.
2. Both Parties agree that the Contract is formed when the Reviewer has signed this Agreement to produce, upload and maintain Reviews for the Company, which will form the consideration due to the Reviewer in return for receiving one or more Units from the Company.
3. The Reviewer will produce Reviews to be published on its Platform and which discusses the key features of the Units.
4. The Reviewer will produce the Reviews in accordance with the Company’s directions (as set out in the Schedule).
5. The Reviewer is responsible for ensuring that the Reviews comply with the necessary domestic regulations (including, but not limited to, the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing and the “Influencer’s Guide” published by The Committee of Advertising Practice and the Competition and Markets Authority) which relate to advertising in the UK and require the publication of Reviews posted on a Platform accessible within the UK to be clearly labelled as advertising.
6. Once a Reviewer has committed to providing Reviews to the Company, he may not cancel save for a Force Majeure event which is beyond his reasonable control.
7. The Company is entitled to require the Reviewer to produce and post on the Platform at least one Reviews during the Initial Term where the Reviewer has received the Units as consideration for the Reviews.
8. Reviews must be satisfactory to the Company and kept on the Platform by the Reviewer for a minimum of one year in order for Title to one or more Units to pass to the Reviewer.
9. Where in the Company’s reasonable opinion, any of the Reviews are defective or have not been satisfactorily produced, the Company will refuse to consent to it being uploaded onto, and displayed on the Reviewer’s Platform, thus withholding Title to the Units.
10. Where clause 3.9 applies, the Company will notify the Reviewer and set out its reasons. Title to the Units will not pass from the Company to the Reviewer unless and until the Company is satisfied that the Reviewer has taken the necessary steps to alter and improve the content of the Reviews so that the Company is willing to approve it.
11. Where, in the Company’s reasonable opinion, the Reviews are satisfactory, the Company will consent to it being uploaded onto, and displayed on the Reviewer’s Platform. Title to the Units will then pass from the Company to the Reviewer subject to, and on the condition that, the Reviews are displayed on the Platform for a minimum of one year from the date when the Reviewer notifies the Company that the Reviews have been uploaded onto the Platform in accordance with clause 3.7.
12. The Reviewer must ensure that none of the Reviews infringe the Intellectual Property Rights of the Company or any third parties.
13. The Company shall be entitled to make use of any Reviews supplied by any Reviewer on the Company’s own platforms, subject to the Company making appropriate reference (where it displays or makes use of the Reviews) to the Reviewer which acknowledges the Reviewer as the originator of the Reviews. The Reviews will not be the exclusive property of the Reviewer.
The Company’s Rights and Obligations
1. In consideration of the Reviewer’s rights and obligations in clause 5, the Company shall:
  1. agree to provide Units to the Reviewer as consideration in return for the production and uploading of Reviews by the Reviewer.
  2. preview and indicate whether or not it gives its approval to the content of the Reviews prior to the Reviewer uploading the Reviews onto their Platform.
  3. where the content of the Reviews is not approved by the Company, provide the Reviewer with an explanation as to the reasons why and require the Reviewer to modify the content of the Reviews within a reasonable period of time.
  4. where the Company does not give its approval and the Reviewer does not modify the content of the Reviews within a reasonable period of time so that they accurately reflect the Company’s position, provide the Reviewer with an official statement which the Reviewer must include and display within the Reviews.
  5. where the content of the Reviews is approved by the Company, allow Title to the Units to pass to the Reviewer once the Reviews are uploaded onto the Platform, subject to, and on the condition that, the Reviews are displayed on the Platform for a minimum of one year from the date when the Reviewer notifies the Company that the Reviews have been uploaded onto the Platform.

- 1. where the Company decides at any time not to require Reviews but has already sent Units to the Reviewer, the Company will give written notice to the Reviewer that it does not require Reviews and that the Reviewer is obliged to return the Units whereupon Title to the Units shall continue to vest in the Company.
  2. take all necessary steps, including the use of legal action, to recover possession of the Units where the Reviewer does not comply with clauses 4.1.4, 4.1.5 or 4.1.6.

The Reviewer’s Rights and Obligations
1. In consideration of the Company’s rights and obligations in clause 4, the Reviewer shall:
  1. agree to produce Reviews (in accordance with the Schedule) using a format that complies with the Company’s acceptable standards.
  2. receive one or more Units from the Company in advance of producing Reviews, the cost of sending which is to be borne by the Company.
  3. produce Reviews using the standard of care, skill and diligence to be expected of an established, experienced and competent Influencer in the area of products of the same or a similar kind to those of the Company.
  4. provide the Company with a copy of the Reviews in advance of publication in order to enable the Company to review them and give its approval or not.
  5. contact the Company if any issue occurs during the production of the Reviews of the Units.
  6. where the content of the Reviews is not approved by the Company, be provided with an explanation from the Company as to the reasons why approval has not been given within a reasonable period of time.
  7. where an explanation has not been provided by the Company in accordance with clause 5.1.3, seek such an explanation to enable the Reviewer to modify the content of the Reviews.
  8. where the Company does not give its approval, modify the content of the Reviews within a reasonable period of time so that they accurately reflect the Company’s position.
  9. where clauses 5.1.3 and 5.1.5 have been complied with, but the Company continues to refuse to give its approval and the Reviewer does not modify the content of the Reviews within a reasonable period of time so that they accurately reflect the Company’s position, be provided with an official statement which the Reviewer must include and display within the Reviews.
  10. where the Company gives its approval, upload the Reviews to, and maintain it on, its Platform as consideration in return for the receipt of one or more Units from the Company in accordance with clause 3.2.
  11. ensure that the number of Reviews uploaded onto its Platform is no less than one during the Initial Term and the Reviews are displayed on the Platform for a minimum of one year from the date when the Reviewer notifies the Company that the Reviews have been uploaded onto the Platform.
  12. remove any Reviews produced for the Company within 3 days upon request by the Company, such request not to be unreasonable refused.
  13. comply with all applicable laws, statutes, regulations and codes including those relating to anti-bribery and anti-corruption including the Bribery Act 2010 in connection with the performance of this Agreement.
  14. satisfy any legitimate request from the Company to return one or more Units to the Company where the Reviewer has not complied with clauses 4.1.4, 4.1.5, 4.1.6, 5.1.12 or 5.1.13, whereupon Title to the Units shall continue to vest in the Company.
  15. acquire Title to the Units where the Company has approved Reviews and the Reviews are uploaded and displayed on the Platform for a minimum of one year from the date when the Reviewer notifies the Company that the Reviews have been uploaded onto the Platform.
  16. require the cost to be borne by the Company where the Reviewer is required to return one or more Units to the Company unless clause 5.1.14 applies in which case the cost is to be borne by the Reviewer.
Confidentiality
1. To assure protection of the Confidential Information, the Reviewer shall:
  1. hold the Confidential Information in strict confidence and preserve the confidentiality of it.
  2. use the Confidential Information solely for the Purpose.
  3. not copy, reproduce or reduce to writing the Confidential Information or any part thereof except to such extent as may be reasonably necessary for the Purpose, any copies, reproductions or reductions to writing so made being the property of the Company.
  4. not disclose the Confidential Information to any third party.
  5. return to the Company or, at the Company’s request, destroy the Confidential Information immediately. Where the Company requests the materials are to be destroyed, the Reviewer shall, if so requested by the Company, promptly provide evidence of destruction which is reasonably satisfactory to the Company.

Intellectual Property
1. The Reviewer assigns to the Company an equal share of all Intellectual Property Rights in any Presentation and all materials embodying such rights to the fullest extent permitted by law.
2. The Reviewer undertakes:
  1. not to register nor attempt to register any of the Intellectual Property Rights in the Units.
  2. not to register nor attempt to register any of the Intellectual Property Rights in the Reviews unless requested to do so by the Company; and
  3. to do all acts necessary to confirm that absolute title in all Intellectual Property Rights in the Reviews has passed, or will pass, to the Company.
Termination and Consequences of Termination
1. Without prejudice to any other rights or remedies which either party may have, either party may terminate this Agreement immediately and without liability on giving notice to the other party if:
  1. the other party commits a material breach of the terms of this Agreement and the breach is not remediable or, if the breach is remediable, the other party fails to remedy that breach within 28 days of being notified in writing of the breach and a request that the breach be remedied;
  2. the other party enters into any composition or arrangement with its creditors; or being an individual who becomes bankrupt; or being a company that becomes insolvent or unable to pay its debts.
  3. the other party is a company and goes into liquidation, receivership or administration; or
  4. the other party shall suffer any analogous proceedings under any laws outside the UK.
2. In addition, without prejudice to any other rights or remedies, the Company may terminate this Agreement immediately and without liability on giving notice to the Reviewer if the Company changes its mind or reasonably considers that the continuing involvement of the Reviewer will not best serve the interests of the Company or its clients.
3. On the termination of this Agreement for any reason the Reviewer shall immediately deliver to the Company or, at the Company’s request, destroy the Confidential Information and any copies in any and all formats, and return one or more of the Units to the Company, such cost to be borne by the Company. Where the Company requests that the materials be destroyed, the Reviewer shall in addition, if so requested by the Company, promptly provide a written certificate of destruction or other evidence thereof reasonably satisfactory to the Company.
4. The provisions of clauses 6 to 17 inclusive shall survive the expiry of termination of this Agreement.

Limitation of Liability
1. Notwithstanding anything else in this Agreement or any Contract and subject to Clauses 9.2 and 9.3, the liability of the Company to the Reviewer under or in connection with this Agreement, whether arising from contract, tort (including negligence) or otherwise shall be limited to an amount equal to the cost of the Units.
2. For the avoidance of doubt, there shall be no limit on the Company’s liability arising from death or injury to persons caused by the Company’s negligence or by its breach of statutory duty, nor shall there be any limit on the Company’s liability for fraud or fraudulent misrepresentation.
3. The Company shall not be liable to the Reviewer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever for any loss of profit, business, bargain, contracts, revenue, anticipated saving, diminution of goodwill or for any special, indirect or consequential damage or loss.

Indemnity
1. The Reviewer shall fully indemnify and keep the Company indemnified from and against any and all actions, claims, demands, costs (including reasonable legal costs and expenses), losses (including without limitation loss of profit, revenue or goodwill), damages, remediation costs and liability and all litigation, arbitration, mediation or adjudication expenses incurred by or awarded against the Company which the Company may suffer or incur as a result of or arising in any way directly or indirectly out of:

(a) the production, uploading and hosting of the Reviews by the Reviewer;

(b) any claim by one of the Company’s clients in respect of the Reviews;

(d) any act, omission or default (whether deliberate, wrongful, negligent or accidental) of the Reviewer.

Status
1. This Agreement constitutes a contract for the provision of services and not a contract of employment. Accordingly the Reviewer shall be fully responsible for and shall indemnify the Company for and in respect of any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of any Reviews, where the recovery is not prohibited by law. The Reviewer shall further indemnify the Company against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Company in connection with or in consequence of any such liability, deduction, contribution, assessment or claim.
Notices
1. Any and all notices, demands or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to the other party if personally served, if emailed to the other party, or if sent by first class prepaid post or airmail (as appropriate). If such notice or demand is served:

(a) personally or by email, the notice shall be deemed to have been served at the time of such personal service or upon receipt of the email by the recipient’s server;

(b) by first class prepaid post, the notice shall be deemed to have been served 2 Working Days after having been posted; and

1. Notices are to be sent:

(a) to the Reviewer to the current physical or e-mail address as supplied to the Company.

(b) to the Company at the address set out on this Agreement.

1. Any party hereto may change its address for purposes of this paragraph by written notice provided to the other party which is given in the manner provided above.
2. The provisions of this Clause 12 shall not apply to the service of any legal proceedings.

Entire Agreement
1. Each party on behalf of itself acknowledges and agrees with the other party that:

(a) this agreement together with any documents referred to in it constitutes the entire agreement and understanding between the Reviewer and the Company and supersedes any previous agreement which may exist between them relating to the Purpose and the Services (which shall be deemed to have been terminated by mutual consent); and

(b) the only remedy available to either party for breach of this agreement shall be for breach of contract under the terms of this agreement. Nothing in this agreement shall, however, operate to limit or exclude any liability for fraud

Variation
1. No variation of this agreement or of any of the documents referred to in it shall be valid unless it is made in writing and signed by or on behalf of each of the parties.
Counterparts
1. This agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.
Rights under the Agreement
1. The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and no person other than the Reviewer and the Company shall have any rights under it. The terms of this agreement or any of them may be varied, amended or modified or this agreement may be suspended, cancelled or terminated by agreement in writing between the parties or this agreement may be rescinded (in each case), without the consent of any third party.
2. No omission or delay on the part of either party in exercising any right, power or privilege under this Agreement shall operate as a waiver by it or of any right to exercise it in future or of any other of its rights under this Agreement.
3. This Agreement is personal to the Reviewer and the Reviewer shall not assign, sub- contract, novate or otherwise deal with all or any part of this Agreement.
Governing Law and Jurisdiction
1. This Agreement shall be governed by and construed in accordance with the law of England and Wales.
2. Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this agreement.

This document has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.



Signed as a deed by Synology UK Limited acting by a Marketing Executive	………………………………… Marketing Executive
Signed as a deed by [insert name]	………………………………… [SIGNATURE OF REVIEWER]

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