hi!Partner Terms & Conditions (Influencer)
Use of the platform made available by medialabel network GmbH hi!sharethat by influencers may only take place in accordance with the terms and conditions of this agreement (‘GTC’ or ‘Agreement’) between you and medialabel network GmbH Hausvogteiplatz 2, 10117 Berlin Tel.: +49 30 40 63 30 60 Email: email@example.com District Court Berlin-Charlottenburg registration number: HRB 199129 B Managing Directors: Silvia Lange, Tivadar Szegeny In order to be able to use the platform hi!sharethat as an influencer, you must accept the GTC in the present form. General terms and conditions of influencers are not part of this Agreement or deemed to have been agreed upon unless medialabel GmbH expressly accepts them in writing.
Article 1 General, Definition
(1) hi!sharethat or Platform refers to the online advertising platform hi!sharethat made available by medialabel network GmbH at www.hisharethat.com; hi!sharethat also refers to medialabel network GmbH as the provider of the Platform; The Platform hi!sharethat enables influencers to participate in campaigns for various advertisers in the context of which they create advertisements and publish them on their influencer website. hi!sharethat is in no way obliged to make available campaigns through the platform in a specific quantity or quality for influencers.
(2) Influencer refers to a natural or legal person using hi!sharethat in accordance with the terms and conditions of these GTC. Influencer intends to publish advertising on his/her influencer website in the context of campaigns.
(3) Influencer Pages jointly refers to any advertising space (e.g. online accounts on social networks or video portals, websites etc.) legitimately available for use by the Influencer for display advertising in online or mobile media.
(4) Advertiser refers to a company (e.g. the provider of an app or an advertising agency working on behalf of said provider) which would like to place advertising on Influencer Pages in order to advertise a product (e.g. an app).
(5) Campaign refers to each offer published on the Platform addressed to the Influencer to advertise a product in line with the specified campaign guidelines and each ensuing advertisement for the product if the Influencer decides to participate on the Influencer Pages.
(6) Campaign Guidelines refers to the conditions, indications, instructions and other guidance applicable to the conduct of a Campaign. The essential condition for participating in the Campaign is acceptance and compliance by the Influencer with the applicable Campaign Guidelines.
(7) Advertising or Advertisement refers to the advertising displayed by the Influencer on his/her Influencer Pages during a Campaign created with the advertising materials employed at any given time (e.g. text, graphics, images, sounds, videos etc. by the Influencer himself/herself and/or as specified by the Advertiser).
Article 2 Registration and conclusion of agreement
(1) The precondition for use of the Platform is the conclusion by the Influencer of a user agreement with hi!sharethat. This contract will only be formed following successful registration. Upon registration, the Influencer must acknowledge the validity of these GTC.
(2) Registration and use of the Platform are possible free of charge.
(3) Registration takes place by creating a user account. For this purpose, the Influencer must fill out the relevant input mask on the hi!sharethat website. All the fields in the application form marked ‘required’ must be completed. The provision of a valid email address is required in all cases. Registration is only complete when the Influencer has received an email from hi!sharethat for the purpose of verifying his/her email address and has clicked on the confirmation link contained therein.
(4) Registration may also take place by using an existing Facebook or Google+ account belonging to the Influencer.
(5) The Influencer has no right to the registration and conclusion of a user agreement.
(6) The Influencer warrants that all the information provided when creating the user account is truthful and complete.
(7) Only one user account can be created or one user agreement concluded with hi!sharethat.
(8) The Influencer must ensure that his/her user account can only be used by him. Accordingly, he/she shall take appropriate precautions to protect the confidentiality of his/her login data and refrain from passing on the login data to third parties. In this respect, the Influencer is obliged to promptly inform hi!sharethat if he/she learns that his/her login data is being used without authorisation or if use thereof is the result of unauthorised access to the login data.
(9) Natural persons are only entitled to conclude an agreement with hi!sharethat if a. they are aged 18 or over (of full legal age) or b. they are not aged 18 or over but are aged 7 or over (minors with limited contractual capacity) and they have been demonstrably granted the valid approval of their legal representatives. The age of Influencers is requested during the registration process and any statements in this respect must be truthful. hi!sharethat will make every reasonable effort taking into account existing technology to ensure that in the case of minors with limited contractual capacity, the legal representatives have given their consent for the conclusion of the Agreement, including participation in the Campaigns. In most cases the legal representative of minors with limited contractual capacity are both parents, and so both parents must provide their consent.
(10) The Influencer, when requested, shall also furnish proof of his/her age and – in the case of minors with limited contractual capacity – obtain the consent of his/her legal representatives. hi!sharethat reserves the right to block The Influencer’s user account until such proof is furnished.
(11) The Influencer shall see to it that by using his/her user account, he/she does not spread any viruses, Trojans or other software capable of harming the IT systems of hi!sharethat or Advertisers and shall take any necessary precautions as required (anti-virus scanner etc.).
Article 3 Validation of user account
(1) The essential precondition for participation in Campaigns is that the Influencer has his/her user account validated once beforehand by hi!sharethat. During the validation, hi!sharethat will check whether the Influencer fulfils the necessary requirements in terms of quality and security to enable participation in Campaigns. a. During validation the Influencer, b. through the submission of the relevant URL links, must be capable of demonstrating that its Influencer Pages can reach at least 3000 followers and
(2) The decision to validate the user account lies solely at the discretion, exercised reasonably, of hi!sharethat, with the aim of ensuring the necessary levels of quality and security for Advertisers during Campaigns. Under no circumstances does an Influencer have any right to expect validation of his/her user account.
Article 4 Conduct of Campaign; guarantees
(1) The current Campaigns in which the Influencer can participate will be shown to him on the Platform.
(2) The Influencer undertakes to only provide his/her (advertising) services in the context of Campaigns as set out in this Agreement – in particular, the guarantees described in article 4 (4) – and in accordance with the relevant Campaign Guidelines.
(3) In the event that the Influencer is unable to comply with the terms of this Agreement and/or the Campaign Guidelines when conducting a Campaign, he/she must immediately stop the Campaign. This also applies if the Campaign Guidelines contain provisions laid down by an Advertiser that run contrary to this Agreement – in particular, the guarantees referred to in article 4 (4). hi!sharethat must be informed in such cases.
(4) When conducting any Campaign the Influencer shall ensure a. that he/she is entitled to use the Influencer Pages as required and that he/she abides by all the provisions laid down by Providers in any given case for the necessary use of the Influencer Pages; b. that the creation and publication of the Advertising is not contra bonos mores and complies with any applicable laws (e.g. laws governing penal and administrative offences, competition laws, the Interstate Broadcasting Agreement, the Telemedia Act etc.). This guarantee shall also extend to compliance with any statutory provisions on advertising markings at all times and without any limitations. c. the Advertising created and published – regardless of article 4 (4) – is free from any content that: is racist or glorifies or trivialises violence; extremist or calls for or incites criminal offences or violations of the law, threatens injury, life or property, stirs up hatred against persons or companies; violates personality rights, is slanderous, libellous, objectionable, pornographic, sexist, sexually molests persons, obscene, vulgar, repulsive, shocking or trivialises the consumption of alcohol while driving or the illegal consumption of drugs. d. that Advertising or insufficient warnings about viruses do not cause the dissemination of malfunctions and such like or call for participation in competitions, snowball systems, chain letters, pyramid schemes and similar schemes; e. that the creation and publication of Advertisements does not infringe the absolute rights of third parties (e.g. copyright and neighbouring rights, trademarks or personality rights etc.). In particular, the Influencer warrants that he/she is entitled to use any photos, graphics, videos, texts, sounds, musical works and recordings or other materials used in the context of a Campaign to create and publish Advertising; f. that there is no disruption or attempts to disrupt the proper functioning of the Platform and especially the tracking methods employed by hi!sharethat; g. that the publication of Advertising is not capable of causing detriment to hi!sharethat or the Advertiser, in particular, with regard to their reputation and standing in the eyes of the public; h. that any Advertising once approved by hi!sharethat in any given cause is not subsequently changed or altered without the prior consent of hi!sharethat, although it should be made clear that the Influencer, generally speaking, is free to integrate the Advertising as he/she sees fit provided such integration takes place in accordance with the terms of this Agreement and the Campaign Guidelines and i. that he/she does not intentionally engage in any Fraudulent Actions (see article 4 (5)) or allow third parties to do so, tolerate such actions or otherwise deliberately facilitate them.
(5) hi!sharethat uses appropriate means to prevent Fraudulent Actions. The Influencer shall support hi!sharethat in the prevention of Fraudulent Actions. ‘Fraudulent Actions’ are deemed to include, although without being limited hereto: a. any activity carried out by a bot, script, automated program or similar programs aimed at creating the impression that an actual conversion has been achieved. The term also includes any actions generally regarded as fraudulent or abusive or as violating the acknowledged principles of online marketing; such as those prohibited by leading programs used in affiliate marketing and keyword advertising; e.g. the generation of queries, completion of surveys, the creation of recommendations in an automated manner or use of false information or toleration of such behaviour by third parties; b. incentivised installs: it is prohibited to offer incentives to users for activities (rewards or advantages) leading to a successful installation. This expressly includes a request addressed to a user to install an app merely to support the Influencer. Accordingly, installations achieved by offering incentives will be deemed invalid and any coins received in return will be subsequently deducted; c. Excessive self-installations: the installation of an excessive number of apps on the devices of Influencers merely for the purpose of obtaining coins and without any intention to present the app to a wider public is not allowed. d. Reach abusively obtained: reach obtained by the Influencer on the Influencer Pages used by him/her through illegal or illegitimate methods, in particular by buying social media followers or likes.
(6) hi!sharethat reserves the right to check the Advertising due to be published by the Influencer beforehand for Fraudulent Actions. There is no obligation on the part of hi!sharethat to carry out such checks.
(7) In the event that the Influencer violates the guarantees described in article 4 (4), hi!sharethat has the right: a. to exclude the Influencer with immediate effect from all Campaigns, to disable the Influencer’s tracking links and request that the Influencer remove the Advertising from the Influencer Pages; and b. to temporarily block the Influencer’s user account; and c. to terminate the Agreement with the Influencer extraordinarily without notice.
(8) In the event that the Influencer violates article 4 (5) (Fraudulent Actions), hi!sharethat is entitled to withhold payment of the reward (‘Coins’, see article 5) for the Campaign in question or to deduct or request the return of any rewards received.
(9) The Influencer shall indemnify and hold free and harmless hi!sharethat from any third-party claims (incl. those asserted by the Advertiser) asserted against hi!sharethat and in respect of any costs (incl. legal fees) incurred by hi!sharethat following a violation by the Influencer of the guarantees described in article 4 (4).
(10) The Influencer shall promptly provide hi!sharethat with any information he/she receives from providers of Influencer Pages in connection with the publication of Advertising in the context of a Campaign (e.g. gender of readers, time advertisement was read, age of readers etc.). In so doing, the Influencer shall only disclose non-personal information to hi!sharethat.
(11) In the event that products of the Advertiser are made available to the Influencer for a Campaign and the Influencer (i) does not conduct the Campaign, (ii) does not conduct the Campaign in line with the relevant Campaign Guidelines laid down by the Advertiser and/or (iii) in violation of the guarantees described in article 4 (4) of this agreement, the Influencer is obliged to compensate hi!sharethat for the replacement value of the products and the costs of shipping them to the Influencer and to pay hi!sharethat a processing fee amounting to EUR 25.00 per Campaign. The right to assert further claims for compensation remains unaffected; however, if further claims for compensation are asserted, any contractual penalties must be set off.
Article 5 Reward programme; hi!sharethat coins
(1) In return for participation in a Campaign, the Influencer can obtain a success-based reward in the form of hi!sharethat coins (‘Coins’) in accordance with the terms and conditions of these GTC and the relevant Campaign Guidelines.
(2) The number of Coins credited to the Influencer’s user account when a success-based reward is awarded is generally based on the number of conversions by the Influencer. Conversion is defined as a predefined event, e.g. if a user installs an app acquired on its device within a specified period of time. Conversions can be defined differently for each Campaign. The definition of conversion applicable in any given Campaign, the number of Coins attainable per conversion and other possible criteria such as daily upper limits and targeting criteria are stipulated in the Campaign Guidelines. If the Influencer participates in a Campaign, he/she must accept the relevant Campaign Guidelines.
(3) The number of valid conversions is measured by hi!sharethat using tracking tools commonly used in the sector. Generally speaking, a requirement is that the Influencer integrates a tracking link into his/her Advertising on the Influencer Pages. The choice of tracking tool used is entirely at the discretion of hi!sharethat. Based on the tracking result, hi!sharethat drafts a campaign report and makes said report available to the Influencer on the Platform. The campaign reports are generally made available at the end of a Campaign, in any case on a monthly basis.
(4) The campaign report is deemed to have been accepted if the Influencer does not make any objections in writing within 14 days of the date the campaign report can be accessed.
(5) Apart from campaign reports, the Influencer may be able to consult online statistics on the Platform. These statistics are merely temporary and non-binding. The sole calculation basis for the reward is the campaign report.
(6) In the event that there is a deviation of more than ten percent (10%) between the campaign report compiled by hi!sharethat and the Influencer’s data, the parties shall amicably proceed to check the relevant data and adjust the campaign report as necessary. However, if the reasons for the discrepancy cannot be clarified within 14 days, the campaign report shall be regarded as definitive.
(7) The Coins are the virtual currency used in the hi!sharethat reward programme. The monetary equivalent value of the Coins is determined by hi!sharethat as set out in this Agreement and paid out to the Influencer.
(8) In order to calculate programmes run by hi!sharethat in different regions and countries uniformly, the monetary equivalent value of the Coins is determined in US dollars at a flat rate defined by hi!sharethat, which is displayed to the Influencer on the Platform.
(9) Rewards are paid out on a monthly basis. However, in order to rationalise this process, they are only paid out if the monetary equivalent value of the Coins in US dollars at the end of any given calendar month is at least USD 50.00. If the minimum amount is not attained the Coins remain in the account until the minimum amount earned through the award of further Coins is attained. Any Coins not paid out remain valid for 18 months and lapse if the minimum amount enabling them to be paid out is not attained.
(10) Rewards are paid out to the Influencer in euros. The hi!sharethat conversion rate used to convert the value of the Coins in US dollars into euros is set by hi!sharethat at its sole discretion and displayed to the Influencer on the hi!sharethat website. When performing this conversion, hi!sharethat refers to the official exchange rates published by the European Central Bank. hi!sharethat regularly adjusts the hi!sharethat conversion rate. However, it does not reflect the official exchange rate.
(11) When rewards are paid out, the hi!sharethat conversion rate for the entire amount due to be paid out in force on the payment date is applied.
(12) Payouts to the Influencer for any given calendar month take place by the 15th of the following month using the payment method registered by the Influencer (e.g. PayPal or transfer).
(13) hi!sharethat will issue a payment voucher to the Influencer for each reward paid out showing the payment in question in accordance with the applicable tax laws. The Influencer accepts that payment vouchers can be issued by hi!sharethat in electronic format.
(14) The Influencer must check the payment voucher within four weeks. If the Influencer does not lodge any objection within the four weeks following receipt of the payment voucher, the payment voucher will be deemed to have been accepted.
(15) The Influencer is responsible for paying any taxes. If required by law, the Influencer in the capacity of invoicing party shall include a breakdown of any applicable taxes in its invoice.
Article 6 Advertising content
(1) hi!sharethat prohibits the Advertiser from specifying certain types of advertising formats or having products advertised that are immoral or unlawful or infringe third-party rights (‘Unacceptable Advertising’). However, it is solely the Influencer’s responsibility before running a Campaign to check and ensure that the advertising contents and formats used do not constitute Unacceptable Advertising.
(2) If an Influencer, while carrying our prior checks or during a Campaign, discovers that the conduct of a Campaign requires Unacceptable Advertising, he/she must suspend the Campaign without delay and inform hi!sharethat in writing. hi!sharethat will check the Campaign and end the Campaign in question if it detects a violation by the Advertiser. The Influencer may only resume the suspended Campaign after obtaining the explicit approval of hi!sharethat.
Article 7 Availability of Platform Guarantee
(1) hi!sharethat will strive to ensure that the Platform is available without interruptions. However, no guarantee is furnished by hi!sharethat for its continual availability. hi!sharethat may temporarily restrict the availability of the Platform if required because of capacity limits, to ensure the security or integrity of the server or if technical measures need to be taken and this is done to ensure the proper or improved provision of services (maintenance work). In such cases, hi!sharethat will take into account the legitimate interests of the Influencer, by providing information in advance for example.
(2) hi!sharethat also reserves the right to suspend operation of the Platform for an indefinite period. In such cases, hi!sharethat will inform the Influencer in advance. Any Coins credited to the Influencer’s user account will be paid out.
Article 8 Term of Agreement and termination
(1) This Agreement has been concluded for an indefinite period.
(2) The parties can terminate the Agreement at any time without giving any reasons with immediate effect. The reference date is the date on which the notice of termination is received.
(3) The right of the parties to terminate the Agreement extraordinarily for good cause remains unaffected.
(4) hi!sharethat is entitled to terminate the Agreement extraordinarily without notice, in particular if the Influencer violates his/her guarantees as set out in article 4 (4).
(5) In those cases in which hi!sharethat is entitled to terminate the Agreement without notice, hi!sharethat will also always have the right to end ongoing Campaigns run by the Influencer and temporarily block the user account and access to the Platform.
(6) Any Coins credited and/or payouts of the equivalent value as described in article 5 completed before the termination takes effect will remain unaffected. However, the statutory retention rights of hi!sharethat remain unaffected.
(7) The Influencer can terminate the Agreement vis-à-vis hi!sharethat, medialabel network GmbH, Wallstrasse 15a, 10179 Berlin, email: firstname.lastname@example.org. No reasons need to be given.
(8) After the contractual relationship has been terminated, access to the Platform will be blocked. The Influencer shall halt all Campaigns and is solely responsible for removing any advertising materials and links. Under no circumstances is the Influencer entitled to claim remuneration for Campaigns run after the Agreement has been terminated, in particular, in respect of any conversions completed after the Agreement has been terminated.
(9) In the event of termination for good cause, hi!sharethat reserves the right to permanently exclude the Influencer from using the Platform. In such cases, the Influencer is not entitled to re-register.
Article 9 Scope of functions and guarantee
Under this Agreement, hi!sharethat grants the Influencer access to the Platform according to its configuration at any given time and range of functions. The Influencer has no right to expect a specific configuration now or in the future or range of functions. In particular, hi!sharethat reserves the right to continually adapt the Platform offered accordingly to incorporate the possibilities and demands of technological advances and a varying range of campaign and advertising models.
Article 10 Limitation of liability
hi!sharethat does not accept liability for slightly negligent violations of obligations, provided they do not concern damage in relation to death, injury or damage to health or violations of guarantees or claims under the product liability act. Liability for violations of obligations whose fulfilment enables the proper performance of the Agreement in the first place and whose fulfilment the Influencer is generally entitled to expect remains unaffected. The same applies to violations of obligations by the vicarious agents of hi!sharethat.
Article 11 Privacy
The collection and processing of personal data belonging to the Influencer by hi!sharethat is governed by the privacy statement of hi!sharethat. The current version may be consulted on the website of hi!sharethat.
Article 12 Communications
hi!sharethat is entitled to send any communications regarding this Agreement and use of the Platform via email to the email address registered by the Influencer in his/her account. The Influencer shall see to it that he/she receives all communications via the email address registered in his/her account. However, hi!sharethat is not obliged to only send communications via email.
Article 13 Confidentiality
(1) All the business and operational secrets disclosed to the Influencer and/or of which he/she learns belonging to hi!sharethat or the Advertiser, the content and results of the collaboration (in particular, but not restricted to information concerning the nature and content of Campaigns and the advertising materials made available and products advertised ) and any other information marked confidential or which is reasonably recognisable as such (hereinafter referred to ‘Confidential Information’) are subject to a duty of confidentiality incumbent upon the Influencer.
(2) The Influencer undertakes to maintain strict confidentiality with regard to any Confidential Information that comes to his/her knowledge in the context of the collaboration, to refrain from disclosing same to anybody and to only use Confidential Information in the context of the collaboration and/or in accordance with the Campaign Guidelines. This obligation shall continue to apply after this Agreement has ended.
(3) This duty of confidentiality does not apply to information in respect of which it can be shown that it: a. was already known to the Influencer before its disclosure, or b. was already in the public domain or generally accessible before its disclosure, or c. entered the public domain or became generally accessible after disclosure without the involvement or through no fault of the Influencer and in respect of which hi!sharethat and the Advertiser no longer have any interest in maintaining its confidentiality, or d. must be disclosed by the Influencer in order to comply with a compulsory official or court order or mandatory statutory provisions; in such cases, the Influencer must inform hi!sharethat in writing without delay and make every effort to safeguard the confidential handling of same. The burden of proof in respect of whether the exceptions described above are indeed satisfied lies with the Influencer.
Article 14 Referencing
If the Influencer is an entrepreneur within the meaning of article 14 of the German Civil Code, he shall grant hi!sharethat the right to refer to the collaboration with the Influencer throughout the sector, in particular in advertising materials and on the hi!sharethat website. The Influencer is entitled to object to such referencing at any time with effect for the future.
Article 15 Non-circumvention
(1) The Influencer, during the term of this Agreement and for a period of one (1) year after it has ended, undertakes to refrain from circumventing hi!sharethat by directly offering or providing advertising services to advertisers for whose hi!sharethat Campaigns he/she has provided services under this Agreement or entering into a contractual commitment to render advertising services that are identical or essentially similar to the advertising services rendered by the Influencer in the context of the collaboration with hi!sharethat.
(2) If the Influencer culpably violates its non-circumvention obligation under article 15 (1) he/she is liable for compensation.
(3) For each instance of violation of the non-circumvention obligation, the Influencer must pay an immediate contractual penalty. The contractual penalty amounts to 200% of all the sums paid out and received by the Influencer from hi!sharethat in the 12 months before the violation for Campaigns with products or Advertising by the Advertiser or through circumvention. The Influencer reserves the right to prove that less damage has been incurred. The right of hi!sharethat to seek further compensation and possibly injunctive relief in the future is not excluded by the foregoing.
(4) The provisions in articles 15 (1) to 15 (3) will not apply if the Influencer is able to show that he/she had already rendered advertising services for the advertiser in question before the conclusion of this Agreement independently of hi!sharethat.
Article 16 Assignment to third parties
(1) hi!sharethat is entitled to assign claims for payment vis-à-vis the Influencer and all the rights and duties under this Agreement with the Influencer to third parties without the Influencer’s approval, In the event of the assignment of all the rights and duties, the subscriber is entitled to terminate the subscription agreement when the assignment takes effect.
(2) The Influencer may not assign its rights and duties under the subscription agreement to third parties without the approval of hi!sharethat; the exception in this respect concerns any payment claims by the Influencer (e.g. claims for compensation).
Article 17 Amendments to these GTC
(1) hi!sharethat reserves the right to amend these GTC without giving any reasons if the legal framework conditions for operating the Platform offered change, certain functions offered by hi!sharethat are revised or extended or if the GTC contains gaps, unless the amendment is unreasonable from the Influencer’s point of view.
(2) hi!sharethat will notify the Influencer about any changes to the GTC in good time. If the subscriber does not object to the new GTC within four (4) weeks of such a notification, it will be assumed that the parties have accepted that the amended GTC are an integral part of the Agreement. In its notification, hi!sharethat will draw the Influencer’s attention to the latter’s right of objection and the meaning of the objection period. If the Influencer objects to the new GTC, hi!sharethat is entitled to terminate the user agreement with the Influencer without notice.
Article 18 Miscellaneous
(1) This Agreement is governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention. The contractual language is English
(2) In the case of any disputes arising from the contractual relationship, wherever the Influencer is a legal person under public law or a special fund under public law, the exclusive place of jurisdiction – even international – is the registered office of hi!sharethat, currently in Berlin. The same applies if the Influencer is a businessperson and the transaction from its point of view is a commercial transaction. hi!sharethat is also entitled to sue at the location of the businessperson’s branch office, the registered office of the legal person or the seat of the authority. Berlin, Deutschland, October 26th 2020, Version 2.0
hi!Partner Terms & Conditions (Advertiser)
§ 1 General provisions
1. These General Terms and Conditions ("GTC") apply to all business relationships between medialabel network GmbH ("hi!sharethat") and its clients ("Customers") within the scope of implementing advertising campaigns upon the integration of the Influencer marketing platform "hi!sharethat". The GTC apply exclusively to entrepreneurs (cf. Section 14 BGB - German Civil Code).
2. hi!sharethat provides the Customer with advertising through campaigns in Social Media, including blogs, ("Social Media") and allows the Customer to track and evaluate these. Order placement occurs exclusively via the assigned contact person at hi!sharethat. Commissioned campaigns are implemented by hi!sharethat with the involvement of advertisers, internet celebrities and video producers (collectively "Influencers"). The Influencers are commissioned by hi!sharethat as subcontractors in its own name and for its own account. They create and publish content for the respective campaign within the scope of the specifications agreed between hi!sharethat and the Customer.
3. These GTC apply exclusively. Deviating, conflicting or additional general terms and conditions of the Customer are only valid if hi!sharethat has expressly agreed thereto. The mere unconditional acceptance of orders by hi!sharethat does not constitute an agreement, even if it aware of the Customer's general terms and conditions.
§ 2 Offer and conclusion of contract
1. An effective contract between hi!sharethat and the Customer for the implementation of a campaign is concluded through an offer from hi!sharethat and the acceptance of this offer by the Customer in accordance with the following provisions.
2. hi!sharethat creates an individual offer for the Customer for each campaign. Upon receipt by the Customer in text form, the offer is considered a binding contract offer.
3. Acceptance of this offer by the Customer is made through a written declaration. The contract is effectively concluded as soon as hi!sharethat receives the written declaration of acceptance from the Customer.
4. The contract concluded with the Customer's written declaration of acceptance, including these terms and conditions, is exclusively decisive for the legal relationship between hi!sharethat and the Customer. It fully reflects all agreements between the contracting parties relating to the contract. Verbal commitments by hi!sharethat prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they will continue to apply.
5. Additions and modifications to agreements made, including these GTC, shall only be valid in writing.
6. To meet the written-form requirement within the meaning of the above regulations, electronic transmission, in particular by fax or email, shall be deemed sufficient provided the copy of the signed declaration is transmitted
§ 3 Description of services/campaign implementation
1. The Customer can choose between the following services (explained in points a to c). a. CPX campaign i. After the conclusion of the contract, the CPX campaign is created in the hi!sharethat system. ii. hi!sharethat forwards the order for the Customer's campaign to registered Influencers so that they can check the offer and apply to fulfill it or start directly. If this measure is not sufficient, active Influencer acquisition is performed. iii. If the Customer is not satisfied with the quality of the individual Influencers, the Customer can use the Influencer ID transmitted by hi!sharethat to identify them and to pause the respective Influencer's application. b. Hybrid model i. After the conclusion of the contract, the Content Fee + CPX campaign is created in the hi!sharethat system. ii. hi!sharethat performs active Influencer acquisition, consisting of initial contact and/or re-contact, negotiating the conditions (remuneration), as well as onboarding on the hi!sharethat platform and looking after the Influencers during the entire campaign period. iii. Depending on the contract offer, the Customer has the option to view the Influencers' profiles and/or content for approval before the campaign is launched. If the Customer rejects all submitted suggestions, hi!sharethat will submit new suggestions created by the Influencers. The Customer has the right to reject one round of suggestions. If the Customer rejects the submitted suggestions a second time, hi!sharethat reserves the right to withdraw from the contract. hi!sharethat expressly reserves the right to assert claims for damages in this case. iv. If the Customer is not satisfied with the quality of the individual Influencers, the Customer can use the Influencer ID transmitted by hi!sharethat to identify them and to pause the application. c. Social Influencer ads i. After the conclusion of the binding contract offer, the campaign is created in the associated system. b. The prerequisite for this campaign is that the Customer gives hi!sharethat access to their Facebook advertising account. c. For the social Influencer ads, hi!sharethat accesses active Influencers who were booked in the associated campaign. There is also the option to run the social Influencer ads independently of previous campaigns.
2. Regardless of the service chosen, the Customer is obligated to provide hi!sharethat with a briefing for the Influencer in good time before the start of a campaign. For this purpose, hi!sharethat transmits to the Customer all requirements that are required to prepare the briefing.
3. If the campaign budget specified by the Customer is used up, the campaign will be stopped by hi!sharethat. The tracking links are no longer available from this point in time. Since the performance can only be updated every 2 minutes for technical reasons, the budget previously agreed by the Customer may be exceeded. In this case, the Customer must pay up to 5% of the over-delivery of the agreed budget.
4. The Customer is free to stop the campaign they have set at any time, provided that there are technical problems.
5. If the campaign is cancelled by the Customer after the contract has been concluded but before it starts, the Customer shall be obligated to pay the contractually agreed commission in full to hi!sharethat.
6. If a contract was concluded with the Influencer before the campaign was stopped, the Influencer has the right to advertise the campaign under the agreed terms. If this is not possible, the Customer is obligated to compensate the Influencer and hi!sharethat for the loss of earnings. This amounts to 50% of the calculated earnings.
7. hi!sharethat is free to end the campaigns at any time at its discretion and to settle accounts with the Customer. In particular, hi!sharethat will end a campaign if the budget specified by the Customer has not been used even after a long period or if too few or no Influencers took part in the campaign.
8. hi!sharethat reserves the right to terminate the campaign even if the commissioned Influencer, despite their contractual obligation, does not perform their service without hi!sharethat being to blame for this. In this case, hi!sharethat will immediately inform the Customer that the contractually owed service has not been provided by the Influencer and will immediately reimburse any services already provided.
9. If the Customer cancels before completion of the campaign, the remuneration to be paid by them will be calculated as follows: a. Termination before the start of content production: 50% of the agreed total amount. b. After the start of production, the full remuneration shall be payable. The Customer is free to prove that hi!sharethat has saved expenses or acquires earnings through any other use of its labour or maliciously fails to acquire such.
10. The prices set by the Customer are net, i.e. excluding any applicable sales tax.
11. The net fee is the total amount to be paid by the Customer. If this amount is due for payment, the sales tax is payable thereon, which shall also be borne by the Customer. The Customer receives an invoice for the final amount. The payment term is Net 30 days.
12. The Customer can make the payment by bank transfer.
13. The campaigns are billed by hi!sharethat after the campaign has ended. A campaign ends when the budget specified by the Customer has been reached, the Customer has stopped the campaign, hi!sharethat has ended the campaign prematurely or the contractually agreed campaign period ends.
14. The basis for billing the campaign remuneration is exclusively the data that is generated via the unchanged tracking link generated by hi!sharethat. Only the numbers of the Customer's tracking provider are used for billing.
§ 4 Availability of services/range
1. The Customer has no right to the uninterrupted availability of the service. Access to the services of hi!sharethat may occasionally be interrupted or restricted to allow repairs, maintenance, or the introduction of new facilities or services. The Customer is not entitled to any compensation if the hi!sharethat service cannot be accessed due to the above reasons or force majeure.
2. In the case of campaigns, hi!sharethat does not guarantee that the links published have a certain reach or reach a certain target group. If necessary, the Customer can influence this by selecting the Influencer. hi!sharethat shall only be liable for ensuring that the tracking links and all relevant information about the campaign are made available to the Influencers. hi!sharethat cannot guarantee whether and on which platform the tracking links will be published. However, in its contractual relationship with the Influencers, hi!sharethat shall work to ensure that the tracking links are published exclusively on the channels of recognized social networks operated by the Influencers themselves.
§ 5 Liability
1. hi!sharethat is liable to the Customer in the event of intent or gross negligence in accordance with the statutory provisions.
2. In other cases, hi!sharethat shall only be liable - unless otherwise regulated in para. 3 - for a breach of an essential contractual obligation, i.e. a contractual obligation the fulfillment of which enables the proper execution of the contract in the first place and on which the Customer can rely (so-called "cardinal obligation"), and limited to the compensation of the foreseeable and typical damage. In all other cases, hi!sharethat is excluded from liability subject to the regulation in para. 3.
3. The liability of hi!sharethat for damages resulting from injury to life, limb or health, in the context of assuming a guarantee or a procurement risk within the meaning of Section 276 BGB and in accordance with mandatory statutory provisions, in particular in accordance with the Product Liability Act, remains unaffected by the above liability restrictions and exclusions.
4. hi!sharethat is only liable for the loss of data in accordance with the foregoing paragraphs and only if such a loss has been unavoidable by adequate backup measures taken by the Customer.
5. The above limitations of liability apply accordingly to representatives, managerial and non-managerial employees, other vicarious agents, and subcontractors of hi!sharethat.
6. The aforementioned provisions shall not constitute a reversal of the burden of proof.
§ 6 Circumvention/contractual penalty/commission
1. In the event that hi!sharethat submits an offer to the Customer for an envisaged campaign, naming a specific Influencer, the Customer undertakes to refrain from entering into a contractual relationship for this campaign or a campaign with essentially the same content, directly with the Influencer in question instead of with hi!sharethat, thereby bypassing the services of hi!sharethat.
2. During the entire service period of an ongoing campaign, the Customer is prohibited from coming into direct contact with the Influencers used for the campaign.
3. For each case, the Customer breaches the regulations according to para. 1 or para. 2, the Customer shall pay a contractual penalty to hi!sharethat. The amount of the contractual penalty corresponds to 100% of the net remuneration of the respective offer by hi!sharethat to the Customer for the campaign in question. hi!sharethat reserves the right to claim further damages. A paid contractual penalty shall be offset against the claim for damages.
4. If the Customer enters into a contractual relationship with the Influencer directly to create a further campaign, which is no longer covered by the campaign created by hi!sharethat, bypassing hi!sharethat's range of services, within six months of the last completion of a campaign and its being made available to the Customer by hi!sharethat, the Customer shall pay a commission to hi!sharethat for the creation of this new campaign. The commission amount corresponds to the commission contractually agreed by the parties for the last campaign completed by hi!sharethat with the Influencer in question. If no separate commission was set out in the parties' contractual agreement for the last completed campaign with the Influencer in question, the commission shall amount to 10% of the agreed net remuneration for the service in question. The due date of the commission shall be 10 working days after hi!sharethat becomes aware and notifies the Customer thereof. hi!sharethat will invoice the Customer accordingly. Invoicing is not a prerequisite for payment.
§ 7 Customer reference
1. With the conclusion of the contract, the Customer declares their consent to be named by hi!sharethat as a reference in a manner customary in the industry. The references may be presented in both digital and non-digital form. When presenting the reference, hi!sharethat may use both the Customer's company name and logo as well as any other publicly known information, such as the Customer's industry. For the purposes of this reference, the Customer grants hi!sharethat a free, simple right to use the Customer's company name and logo without limitation in terms of space, time, and content.
2. The Customer can revoke their consent to the above reference and the granting of rights at any time in writing to hi!sharethat with future effect.
3. If the Customer revokes their consent, hi!sharethat will discontinue the reference within a reasonable period. As a rule, a minimum period of one month is appropriate for slightly variable uses (e.g. website, e-mails, Social Media channels, etc.), for all other uses, a minimum period of six months is appropriate for citing the reference.
§ 8 Confidentiality/contractual penalty
1. The Customer undertakes to keep strictly confidential all business and trade secrets as well as other information of a confidential nature, which is designated as such in writing or orally or which is obviously recognizable as such, in particular the content of all offers for campaigns that the Customer becomes aware of in the context of the cooperation with hi!sharethat, ("Confidential Information") and to not make the confidential information accessible to third parties without the express prior consent of hi!sharethat. The Customer's cooperation with hi!sharethat also includes the initiation of business and possible contract negotiations, even if a contract is not concluded between the parties. The confidential information includes, in particular, all details, information and data about the hi!sharethat platform, about the cooperating Influencers as well as about specific campaigns of the Customer (e.g. the names of the participating Influencers, the type of campaign and the content of the agreements between hi!sharethat, the Influencers and the Customer).
2. The Customer undertakes to use all confidential information that they receive as part of the cooperation with hi!sharethat only for the contractually agreed purpose
3. Excluded from the obligation of non-disclosure is such information a. that is demonstrably already known to the Customer before the conclusion of the contract or which subsequently was disclosed by a third party without any breach of the latter's own confidentiality agreements, statutory provisions, or official orders; b. that was publicly known when the contract was concluded or is subsequently made public, unless this is due to a breach of this contract, including these GTC; c. that was required to be disclosed due to statutory obligations or at the order of a court or an authority. To the extent permissible and possible, hi!sharethat shall inform the other Customer in advance and allow them to take action against said disclosure.
4. The Customer undertakes to pay an appropriate contractual penalty to hi!sharethat in each case of a culpable breach of the confidentiality obligations based on these terms and conditions. The amount of the appropriate contractual penalty shall in any case be 30% of the net remuneration agreed between hi!sharethat and the Customer for the campaign in question. With the payment of the contractual penalty, the assertion of further legal or contractual claims by hi!sharethat, in particular claims for omission or compensation for damages beyond the contractual penalty, is not excluded. The contractual penalty shall be offset against possible additional damages.
5. The above confidentiality obligations apply both for the duration of the respective contractual cooperation and an unlimited period thereafter.
6. The Customer undertakes to impose obligations on all persons involved in the cooperation with hi!sharethat in accordance with the above regulations; this also applies within the scope of what is legally permissible for the time after such persons have left the Customer's company or after the end of any cooperation with such persons.
§ 9 Information on data protection
The data protection provisions available on the hi!sharethat website at http://www.hisharethat.com/de/datenschutzbestimmungen/ apply to the processing of personal data in the context of the business relationship with the Customer.
§10 Concluding provisions
1. The law of the Federal Republic of Germany is valid, with the exclusion of provisions of private international law and the UN Sales Convention (CISG). The contract language is German.
2. The exclusive – including international – place of jurisdiction for all disputes between hi!sharethat and the Customer shall be the registered office of hi!sharethat in Berlin.
3. Should individual provisions of these GTC be wholly or partially invalid, or should they contain a loophole that requires supplementation, this shall not affect the validity of the remaining provisions of the GTC. In such a case, hi!sharethat and the Customer shall negotiate a valid and reasonable provision that comes as close as possible to the economic purpose pursued by the contracting parties in these GTC.
Berlin, 26th October 2020