Terms and Conditions of Use for Influencers
1. Contract subject matter
1.1 The following Terms and Conditions of Use are an integral part of any contract between yimify GmbH, Ridlerstrasse 31B, 80339 Munich, Germany (hereinafter referred to as Provider) and the Influencer.
1.2 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.
1.3 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 Influencer.
1.4 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 Influencer with advertisers, for the purpose of concluding transactions.
1.5 The Influencer has the following options to take part in campaigns of the Advertiser:
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.
1.6 The conclusion of the contract occurs exclusively between the Influencer and the Advertiser. The Provider shall not become a contracting party, but rather, is only an agent.
1.7 Participation in the Portal is free of charge for the Influencer.
2.1 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.
2.2 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.
3. Services of the Provider
3.1 The Provider procures contacts for the Influencer with advertisers, for the purpose of concluding transactions. For this purpose, the Provider advertises and places the Influencer on the Provider’s Portal.
3.2 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.
3.3 The Provider does not guarantee the Influencer 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.
3.4 The Provider assumes no liability with respect to the accuracy of the Advertiser data.
3.5 The Provider does not guarantee the Influencer any exclusivity, unless the Provider has expressly declared otherwise in written form.
4. Services of the Influencer
4.1 The Influencer shall independently maintain the required data and contents in the system on the Portal in the protected administration area for Influencer.
4.2 All data and contents entered by Influencers must be accurate, complete and up-to-date. The Influencer undertakes to comply with the valid laws. The Influencer is solely responsible for the review obligation. The Influencer must enter changes in the system independently into the Portal in the protected administration area for Influencers, immediately after the change occurs.
4.3 The Influencer is solely liable for the data and contents entered by the Influencer.
4.4 The Influencer commits to perform the campaign according to the Guideline agreed with the Advertiser and to publish it on the media and for the time agreed.
4.5 The Influencer commits to comply with all applicable law, including but not limited to trademark law, competition law as well as applicable law concerning surreptitious advertising. The Influencer is solely responsible for the review obligation. In return, when the offer is made, the Influencers is entitled to use and publish the product and, if applicable, trademark rights of the Advertiser under the campaign agreed.
4.6 Furthermore, the Influencer commits to not use the contents published under the campaign for private or other commercial purposes.
4.7 Additionally, for the term of the campaign the Influencer commits to not advertise products, brands etc. who are competing with products, brands or similar of the Advertiser.
5.1 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 an additional compensation.
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.
5.2 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.
5.3 If the Influencer violates Section 4 Para. 4 to 7 of these Terms and Conditions of Use, any entitlement to payment of the Influencer will become void.
5.4 Payment processing services for Influencer on yimify are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these terms or continuing to operate as a Influencer on yimify, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of yimify enabling payment processing services through Stripe, you agree to provide yimify accurate and complete information about you and your business, and you authorize yimify to share it and transaction information related to your use of the payment processing services provided by Stripe.
6. Rights of use
6.1 The Provider is entitled to name and advertise the Influencer on the Portal and potentially in brochures, presentations, etc. For this purpose, the Influencer 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 Influencer, which it shall send to the Provider.
6.2 The Influencer is only permitted to use the trademarks, identifiers, logos or similar of the Provider with express written consent.
6.3 The influencer grants the Provider a simple, temporal and spatial unrestricted right to use all content that he creates during the business relationship with the provider. In particular, the provider is entitled to use the content on its own website or social media account.
7.1 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.
7.2 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. This also applies to indirect damages, particularly the lost profit.
7.3 The provisions of the Product Liability Act remain unaffected.
If claims are asserted by third parties against the Provider in relation to this agreement, which are attributable to the Influencer, the Influencer 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 Influencer.
9. Contractual penalty
9.1 For each case of infringement of the regulations of Section 4 Para. 5 of these Terms and Conditions of Use, the Provider and the Influencer agree to a contractual penalty in the amount of EUR 25,000.00 per case.
9.2 It is irrelevant, whether the infringement occurs by the Influencer itself or by a third party commissioned by the Influencer.
10. Contractual term / cancellation
10.1 The contract is concluded for an indefinite term.
10.2 Each party may cancel the contract at any time.
10.3 The Influencer undertakes to duly fulfil the campaigns which have been sent until the cancellation.
11.1 The law of the Federal Republic of Germany applies, excluding the UN Sales Convention. Compulsory provisions of the country in which the Influencer has its usual residence remain unaffected.
11.2 The legal jurisdiction for disputes arising from this contract is the registered office of the Provider.
11.3 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 Influencers.
11.4 If no explicit written objection occurs within the notice period, the new Terms and Conditions of Use shall be deemed as approved.
11.5 If an explicit written objection occurs, the contractual relationship shall be deemed as cancelled within the meaning of Section 10 of these Terms and Conditions of Use.
12. 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.