Terms and Conditions of Use for Advertisers
Section 1 Contract subject matter
(1) The following Terms and Conditions of Use are an integral part of any contract between yimify GmbH, Josef-Felder-Straße 53, 3. OG, 81241 Munich, Germany (hereinafter referred to as Provider) and the Advertiser.
(2) The Provider performs its services exclusively on the basis of these Terms and Conditions of Use. Other terms and conditions shall not become contract content, even if the Provider has not explicitly objected to them.
(3) The contracting parties of the Provider may only become contractors, i.e. persons who act by exercising their commercial activity. Therefore, the Provider is authorised to demand corresponding evidence from the Advertiser.
(4) The Provider shall provide the Advertiser with the opportunity to present itself on the Provider’s Influencer Portal (hereinafter Portal) and place campaigns for influencers. In this way, influencers have the opportunity to come into contact with the Advertiser. Using this method, the Provider procures contacts for the Advertiser with influencers, for the purpose of concluding transactions. The Provider shall receive a commission for each procurement.
(5) The conclusion of the contract occurs exclusively between the Advertiser and the Influencer. The Provider shall not become a contracting party, but rather, is only an agent.
(6) The Advertiser’s presentation is subject to a fee. The amount of the basic fee shall be referred to on the Portal.
(7) The payment occurs using the payment type and method described on the Portal.
Section 2 Definitions
(1) The Advertiser is a natural person or legal entity, which advertises on mobile and digital media of the influencers and becomes liable to pay a fee vis-à-vis the influencers in accordance with the agreed terms and conditions. Advertisers can only be companies within the meaning of Section 1 Para. 3 of these Terms and Conditions of Use.
(2) An influencer is a natural or legal entity, owner, operator of digital media (websites, YouTube, Instagram, blogs, Facebook, Snapchat, Twitch, Pinterest, Xing or LinkedIn), who provides linked advertising spaces, which are referred to Advertisers. Influencers can only be companies within the meaning of Section 1 Para. 3 of these Terms and Conditions of Use.
Section 3 Services of the Provider
(1) The Provider procures contacts for the Advertiser with influencers, for the purpose of concluding transactions. For this purpose, the Provider advertises and places the Advertiser on the Provider’s Portal. Furthermore, the Advertiser can book additional services (e.g. chat, analysis, campaign management, tracking, payment etc.).
(2) The Provider will make the usual effort in the Internet industry, in order to ensure that the online system remains 99.00 % available 24 hours a day. Exceptions from this are interruptions, which are conventional for the necessary servicing measures or are owed by third-parties, which are not companies affiliated with the Provider. If the online system nevertheless malfunctions, the Provider will immediately may every effort to restore availability wherever possible. The parties acknowledge that in exceptional cases, a small number of transactions cannot be recorded/logged by the online system. No claim exists against the Provider by the Advertiser from this.
(3) The Provider does not guarantee the Advertiser a minimum number of referred contacts. Furthermore, the Provider shall not assume any guarantee that a contract will actually be concluded after a contact referral.
(4) The Provider assumes no liability with respect to the accuracy of the Influencer data.
(5) The Provider does not guarantee the Advertiser any exclusivity, unless the Provider has expressly declared otherwise in written form.
Section 4 Referral
A referral within the meaning of this contract exists, if an influencer establishes contact with the Advertiser through the Provider’s website and a contract is concluded between the Advertiser and the Influencer.
Section 5 Services of the Advertiser
(1) The Advertiser shall independently maintain the required data and contents in the system on the Portal in the protected administration area for Advertiser.
(2) All data and contents entered by Advertisers must be accurate, complete and up-to-date. The Advertiser undertakes to comply with the valid laws. The Advertiser is solely responsible for the review obligation. The Advertiser must enter changes in the system independently into the Portal in the protected administration area for Advertisers, immediately after the change occurs.
(3) The Advertiser is solely liable for the data and contents entered by the Advertiser.
(4) The Advertiser is entitled to the following options for awarding campaigns to the influencers:
- a) The Advertiser shall prepare a campaign and upload these and the general conditions (hereinafter: Guideline) to the Portal. The campaign and the guideline will be published there and offered for all influencers. Influencers have the opportunity to contact the Advertiser in an application process and apply for the campaign.
- b) The Advertiser shall prepare a campaign, specify a guideline and search for an influencer on the Portal in a targeted manner. In this case, the Advertiser shall contact the Influencer directly and send an offer regarding the campaign.
(5) Two compensation models are available for the Influencer’s services:
- a) Freebies/products: The Influencer only receives the product to be advertised as compensation for its service. Furthermore, the Advertiser is entitled to the opportunity to additionally pay the Influencer compensation up to an amount of EUR 100.00.
- b) PayPerPost/direct compensation for Posting/Video/Content: As compensation for its service, the Influencer will receive a fee, the amount of which is measured according to the market value of the Influencer. The Influencer’s market value is determined by the Provider on the basis of its number of followers, the statistics of its engagement rate and on the basis of the question of whether it has a rising or falling number of followers.
(6) The exact compensation model and the exact amount of the compensation arises from the Advertiser’s campaign offer. For both sides, i.e. the Influencer and the Advertiser, the opportunity is available to renegotiate the Influencer’s services, as well as the compensation.
(7) In the case of Freebees/product compensation, the shipping of the respective product occurs directly from the Advertiser to the Influencer. Ceteris paribus, the compensation of the Influencer occurs through the Advertiser via the Portal.
(8) The Advertiser is prohibited from obstructing the creation of the commission claim for the Provider through direct agreements with the Influencer. In case of infringement, the referral commission is also due immediately without the conclusion of a contract.
(9) The Advertiser is aware that the conclusion of the contract between it and the Influencers referred according to these Terms and Conditions of Use, are exclusively valid according to the Terms and Conditions of Use applied between the Provider and the Influencer. Therefore, the Advertiser must adapt its own General Terms and Conditions accordingly.
Section 6 Remuneration
(1) The Provider will receive a commission from the Advertiser per referral, the amount of which is described in further detail on the Portal. The commission claim is free of cancellation fees and exists for each referral within the meaning of Section 4 of these Terms and Conditions of Use, notwithstanding whether the Influencer was already known to the Advertiser or whether the Advertiser was/is already in a business relationship with the Influencer.
(2) The commission claim is created as soon as a contract is concluded between the Advertiser and the Influencer and irrespective of whether the Influencer provides its service in accordance with the contract.
(3) If the contract is not concluded between the Advertiser and the Influencer due to a reason, for which the Advertiser is responsible, contrary to Section 6 Para. 1 of these Terms and Conditions of Use, the commission shall nevertheless be incurred. The amount of the commission is determined on the basis as though the contract had been properly concluded between the Advertiser and the Influencer.
(4) The Provider receives a commission for each referral, irrespective of how frequently the individual influencer uses the Provider’s service.
Section 7 Statement
(1) By the 15th of each month, the Provider shall issue a statement regarding the commission payments to be paid to the Provider according to Section 6 of these Terms and Conditions of Use. The commission claim will fall due immediately after the end of each individual campaign. If the respective campaign takes longer than one month, the commission claim shall fall due upon invoicing.
(2) Insofar as the Advertiser does not object to the statement within 14 days after its receipt, it is deemed as approved.
(3) The Provider shall give the Advertiser the opportunity to inspect the evidence for the referred influencers on the Portal in the protected administration area for Advertisers.
(4) Upon request, the Advertiser shall grant the Provider inspection rights to the statement documentation in order to examine their accuracy. The Advertiser can insist that the inspection is not performed by the Provider itself, but rather, by a person who is obligated to maintain non-disclosure (e.g. lawyer, tax advisor). The costs of using this person shall be paid by the Provider, if the original statement amount is more than 5 percent below the amount calculated within the context of the inspection. Otherwise, the Advertiser shall bear the costs of the use.
Section 8 Rights of use
(1) The Provider is entitled to name and advertise the Advertiser on the Portal and potentially in brochures, presentations, etc. For this purpose, the Advertiser transfers the non-exclusive, transferable, time-limited right in accordance with the term of this contract to use the name of corresponding brands, as well as to all contents of the Advertiser, which it shall send to the Provider.
(2) The Advertiser is only permitted to use the trademarks, identifiers, logos or similar of the Provider with express written consent.
Section 9 Liability
(1) The Provider shall only be liable for damages due to injuries to life, limb and health, if they are due to malicious or grossly negligent actions or culpable infringement of a material contractual duty by the Provider, its employees or its legal agents. This also applies to damages from the infringement of duties with contractual negotiations, as well as from performing illicit acts. Liability for compensation for damages over and above this is excluded.
(2) Except in the case of malicious or grossly negligent conduct, infringement of a cardinal duty or injuries to life, limb and health by the Provider, its employees or its legal agents, for foreseeable damages in the case of typically foreseeable damages upon conclusion of the contract and ceteris paribus, in terms of the amount, to the typical contractual average damages, however, a maximum of the average referral commission in accordance with Section 6 and 7 of these Terms and Conditions of Use for a half-year. This also applies to indirect damages, particularly the lost profit.
(3) The provisions of the Product Liability Act remain unaffected.
Section 10 Indemnification
If claims are asserted by third parties against the Provider in relation to this agreement, which are attributable to the Advertiser, the Advertiser undertakes to fully and immediately indemnify the Provider for such claims. This shall not apply if the third-party claims are due to an error, which the Provider has fraudulently concealed vis-à-vis the Advertiser.
Section 11 Contractual penalty
(1) For each case of infringement of the regulations of Section 5 Para. 8 of these Terms and Conditions of Use, the Provider and Advertiser agree to a contractual penalty in the amount of EUR 25,000.00 per case.
(2) It is irrelevant, whether the infringement occurs by the Advertiser itself or by a third party commissioned by the Advertiser.
Section 12 Contractual term / cancellation
(1) The contract is concluded for an indefinite term.
(2) Each party may cancel the contract at any time. In the event that the Advertiser has selected the chargeable medium or premium version at the time of declaring the cancellation, the cancellation will become valid at the time when the chargeable medium or premium version expires.
(3) The commission claim, which is created prior to the cancellation, remains unaffected by the cancellation. The commissioning of the Influencer through the Provider’s Portal is decisive for the creation of the commission claim.
(4) The Advertiser undertakes to fulfil the campaigns, which have been sent until the cancellation.
Section 13 Miscellaneous
(1) The law of the Federal Republic of Germany applies, excluding the UN Sales Convention. Compulsory provisions of the country in which the Advertiser has its usual above remain unaffected.
(2) The legal jurisdiction for disputes arising from this contract is the registered office of the Provider.
(3) Changes to these Terms and Conditions of Use are possible at any time and will be announced subject to compliance with a notice period of two weeks. They shall be made accessible to with reference to the extraordinary cancellation right via e-mail and via the system on the Portal in the protected administration area for Advertisers.
(4) If no explicit written objection occurs within the notice period, the new Terms and Conditions of Use shall be deemed as approved.
(5) If an explicit written objection occurs, the contractual relationship shall be deemed as cancelled within the meaning of Section 12 of these Terms and Conditions of Use.
Section 14 Severability clause
If individual provisions of these Terms and Conditions of Use are invalid or contradict the statutory provisions, the Terms and Conditions of Use shall not be affected, ceteris paribus. In this case, the invalid provision shall be replaced by a valid provision, which comes closest to the commercial and legal purpose of the invalid provision. The same applies to closing a regulatory loophole.