Brandnew IO GmbH, Marienstr. 10, 10117 Berlin (hereinafter referred to as “Brandnew”, “we”, “us”, “our”) operates an online platform under the URL brandnew.io (hereinafter re-ferred to as the “Platform”) to leverage the success and the awareness level of advertising campaigns and advertised products. The Platform enables brand advertisers (hereinafter re-ferred to as “Advertisers”) to identify key content creators from a global network (hereinafter referred to as “Creators”, “you”, “your”) to target their audience. The Platform provides profile analytics helping Advertisers to get in touch with you who they deem suitable to promote the advertisements and manage the advertisements and relationships with you.
Advertisers can submit offers for cooperation with an advertisement campaign to Creators via the Platform. Such offers include a brief describing the product or service to be advertised, the nature of the advertising/promotion activity expected from the Creator, the applicable time span for any such activity, and the factors necessary to determine the remuneration for the Creator. In addition, but not alternatively, offers can be submitted to the Creator via email.
The following terms and conditions apply to all registration requests submitted online through our Platform. Please carefully read these terms and conditions before registering with us.
2. Scope of these Terms and Conditions
2.1 The present terms and conditions (hereinafter referred to as “T&Cs”) exclusively apply to the contractual relationship between us and you as Creators valid at the time you submit your registration request with us. You may at any time download, save and print these T&Cs.
2.2 Any terms and conditions of the Creator with provisions deviating from and/or additional to the T&Cs do not apply unless we expressly agreed to them in writing. This also applies in case we accept your registration request without expressly objecting to your terms and con-ditions.
2.3 We merely offer our services to undertakings and legal entities. We do not offer our ser-vices to private persons. You qualify as a private person in case the purpose of your registra-tion may not be attributed to your commercial and/or professional activity. In contrast you qualify as an undertaking in case you apply for registration acting as an individual in its pur-suit of business interests or legal entity or incorporated partnership.
3.1 The use of our services requires a registration of the Creator through our online registra-tion form which is available on our Platform. Please fill in the data as requested by the regis-tration form and within the registration process and submit your registration request by acti-vating the respective button. You are responsible for the correctness and the completeness of the submitted data.
3.2 Once your registration request has been submitted to us we will confirm safe receipt by email. Please note that this confirmation email merely confirms receipt of your registration request and does not represent an acceptance of your request with binding legal effect un-less otherwise stated within the confirmation email.
3.3 Your registration request is accepted with its express acceptance by us or by executing the fulfilment of our services. You do not have any claim for acceptance of your registration request and we reserve the right to reject your registration request at our sole discretion. In particular we may reject your registration in case we deem your number of followers as being insufficient to deliver significant value for the Advertisers and our community or to compete with other registered Creators.
3.4 Upon registration you grant Brandnew the right to use your name as a reference for Brandnew’s services. This includes the right to use your logo, if any, on our websites. You may revoke this right at any time, in writing, for any future use.
3.5 The Creator shall keep all access data (login, passwords etc.) for the Platform (“Access Data”) strictly confidential. The Creator shall promptly inform Brandnew in the event that it learns or suspects that an unauthorized third person is in possession of the Access Data. We are not liable for any misuse of Access Data due to the Creator’s negligent handling of its Access Data.
3.6 In case Brandnew has reason to believe that an unauthorized third party is in possession of Access Data, Brandnew may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respec-tive account. Brandnew will promptly inform the Creator and will, upon request, communi-cate the new Access Data to the Advertiser without undue delay. The Advertiser cannot claim to have its initial Access Data restored.
4. Our Services
4.1 Brandnew provides Creators who successfully registered access to the Platform and the right to use its technical functionalities including the dashboard to present itself to Advertis-ers. Our Platform enables the Advertisers to engage you to increase the advertising impact of specific advertising campaigns in order to create awareness and/or promote the sale of the advertised products and services. The Creator provides its advertising environment in social media and/or in the World Wide Web in order to assist an Advertiser whose specific offer it has accepted in its promotional activities for the aforementioned purpose.
4.2 In order for Brandnew to be able to implement the Platform’s features by which Creators are presented to Advertisers, we ask you to link your accounts on social media platforms such as photo sharing communities and related channels (any such hereinafter referred to as “Creator Account”), e.g., your Instagram account, to the Platform using the tools provided by Brandnew. Brandnew will thereby gain a read-only access to the Creator Account. To ensure the functionality of these features, the Creator undertakes to inform Brandnew via email of any changes in usernames regarding a linked Creator Account.
4.3 The Platform or parts thereof may be subject to maintenance services, some of which require downtimes of the Platform. During such downtimes the Platform or parts thereof will not be accessible. We will usually notify you on planned maintenance downtimes but we reserve the right to abstain from giving such notice in case there are circumstances which require our immediate action for implementing such maintenance services.
4.4 We do not owe any success with respect to the inducement of specific offers by Adver-tisers to Creators. Further, we are not liable for the commercial or publicity-related conse-quences of any cooperation between an Advertiser and the Creator. For the avoidance of doubt, our services towards you are limited to providing the Platform and its technical func-tionalities as described within these T&Cs and any other performance specification within the meaning of a service agreement according to sections 611 et seq. German Civil Code (Bür-gerliches Gesetzbuch – “BGB”).
4.5 Brandnew is entitled, but not obliged, to further develop the Platform on an ongoing basis at its own discretion and to amend its technical functionalities whenever Brandnew deems such amendments as being required to comply with the state-of-the-art.
4.6 We are entitled to engage third party service providers with specific services as regards the performance of our obligations in particular with respect to the provision of the Platform and its technical functionalities.
5. Creator’s Rights and Responsibilities
5.1 The Creator shall offer its services to promote an advertisement and perform its services within the Advertiser’s intended advertising campaign subject to (i) the specifications of the Advertiser, (ii) these T&Cs and (iii) any applicable additional terms and conditions provided by the Advertiser with respect to an advertisement. You will receive an overview of the active advertising campaigns for which you may apply to participate. Alternatively, the Advertiser may invite you to participate in its advertising campaign.
5.2 Upon acceptance of the Creator’s application or Advertiser’s offer to participate in an advertising campaign an individual contract concerning the performance of the advertising services shall come into effect between Brandnew and you on the basis of these T&Cs and the individual arrangements and instructions as further specified with respect to the concrete subject of the advertisement on the Platform or otherwise. The acknowledgement of addi-tional terms and conditions by the Creator with respect to the participation of the Advertiser does not create any contractual relationship between the Advertiser and the Creator. In the event of any conflicts between the provisions of these T&Cs, the provisions of the Advertiser Terms and Conditions on the one side and the individual arrangements and instructions of the advertising campaign on the other, these T&Cs shall overrule the individual arrangements and instructions.
5.3 After activation of your participation you will be able to use the advertising, marketing or promotion material as provided by the Advertiser within your advertising environment. The Creator undertakes to fulfil its obligations subject to the specifications and instructions pro-vided by the Advertiser and any further briefings respectively any individual arrangements between the Advertiser, Brandnew and the Creator. Further, the Creator undertakes to com-ply with the Influencer Handbook made available to the Creator through the Platform in its applicable version.
5.4 The Creator undertakes to deliver the advertisements in compliance with all applicable laws, including the laws on the transmission of technical data and personal data. The Crea-tor will not interfere or attempt to interfere with the proper working of the Platform or prevent others from using the Platform.
5.5 The Creator undertakes to take all appropriate actions and render all necessary declara-tions and statements to transfer to the Advertiser all intellectual property rights including cop-yrights deriving from the performance of the advertisement including any copyrights to any drafts of the advertisement and/or the advertising campaign. In that context the Creator shall grant Advertiser a non-exclusive, irrevocable, unlimited in terms of time, space, and content right to use the Creator’s copyrightable works in relation to the advertisement. The granting of rights shall be compensated through the remuneration according to section 6.
5.6 The Creator undertakes not to place any advertisement in a context which might be det-rimental to the reputation or public perception of Brandnew or an Advertiser with whom the Creator is cooperating.
5.6.1 The Creator warrants and represents that no illegal or offensive content is featured on Creator Accounts. Such content includes, without limitation:
(i) Content infringing any applicable laws and other legal rules with regard to youth pro-tection, data protection, protection of personality rights, protection against insults, and public decrial.
(ii) Content which is false or misleading or which promotes illegal activities.
(iii) Content promoting or endorsing criminal activities or containing instructions for crimi-nal activities, including but not limited to information on the production or purchase of arms, child pornography, fraud, drug trafficking, gambling, stalking, or spying on trade secrets.
(iv) Content which is racist, offensive, vulgar, molesting, insulting, threatening, obscene, hateful, invasive of another person’s privacy, defaming, libellous, politically extremist, religious, violent, sexist, erotic, or otherwise harmful to underage persons, or of a tout-ing nature.
5.6.2 The Creator warrants and represents that no illegal means are used to promote or ad-vertise or market the Creator Account. Such means include, but are not limited to:
(i) Advertising, marketing or promotion material which infringes third party rights, espe-cially third party title rights and copyrights.
(ii) Any material which contains false or misleading statements.
(iii) Any other form of unfair competition.
5.7 The Creator undertakes to respect any applicable terms and conditions of third party websites, in particular of any social media websites. It is the Creator’s responsibility to clear any contradictory rights prior to advertising products or services using the Creator Account.
5.8 The Creator shall not submit, advertise or promote any products or services which link to spam, bulk mail or offers with hidden costs, or which may harm the interests of Brandnew, the Advertisers and/or the target audience in any other way. The Creator ensures that it does not knowingly or negligently send, store, publish, post, upload or otherwise transmit through the Platform any viruses, Trojan horses, worms, time bombs, corrupted files or oth-er computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
5.9 The Creator may not:
(i) sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit its access to the Platform and the registration for the benefit of any third party except as expressly permitted under these T&C’s;
(ii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the hosting environment or the Plat-form;
(iii) incorporate any data mining, robots or similar data gathering or extraction methods to the Platform;
(iv) copy, translate, modify, reverse engineer, reverse assemble, disassemble, or decompile the software of the Platform or any part thereof or otherwise attempt to discover any source code of the Platform; or
(v) remove, obfuscate or alter any default disclaimers or copyright notices featured on the Platform for display on the advertising campaign (such as footers) without Brand-new’s prior knowledge and consent.
5.10 The Creator shall protect, defend, indemnify and hold harmless Brandnew, and all its officers, directors, agents, employees and representatives, from and against any and all cost and expenses of any nature whatsoever (including legal costs and disbursements), claims and judgements arising out of, or in any way connected with, any claim for the violation by the Creator of any statutory or regulatory obligation, any claim for injury or damage to prop-erty, personal injury, death or other cause of action involving any claim arising out of the Creator’s activities pursuant to the registration or other conduct of its businesses.
5.11 In the event that the Creator negligently or wilfully breaches any of its obligations as determined in these T&Cs the Creator shall be obliged to pay and Brandnew shall be entitled to claim a reasonable contractual penalty per breach. The right to claim damages shall remain unaffected whereas the contractual penalty shall be the minimum amount of damages paya-ble and any contractual penalty due shall be credited against the claimed damages. Further, we reserve the right to terminate the registration and/or suspend or limit the access to the Platform and our services for the duration of the persistent breach of the obligation.
5.12 Except for cooperations within the scope of this agreement and formed via the Plat-form, the Creator undertakes not to enter into a business relationship with Advertisers re-garding the performance of advertising campaigns and/or advertisements for the Advertiser’s products, either itself or through any third party, while registered with Brandnew and for a period of two (2) years after the termination of the contractual relationship between the Crea-tor and Brandnew. This shall not apply to Creators to whom the Advertiser already main-tained a contractual relationship before subscribing to our services.
5.13 The Creator undertakes not to register or uphold a business relationship with another provider of advertising opportunities related to the Creator Account while registered with Brandnew or involved in an advertising campaign which has been initiated via the Platform.
5.14 To the extent that any obligation of the Creator under these T&Cs protects the interests of the Advertisers, it shall apply for the benefit of the respective Advertiser (Echter Vertrag zugunsten Dritter, section 328 BGB).
5.15 Brandnew will take reasonable measures to prevent fraudulent actions. The Creator will support Brandnew in preventing fraudulent actions and warrants not to endorse or sponsor any fraudulent actions. Such fraudulent actions include, without limitation, all actions listed as fraudulent actions on Brandnew’s website or any actions which are performed by a bot, script, automated program or similar means in relation to any advertisements or offers bro-kered via the Platform. Fraudulent actions also include all actions generally considered fraud-ulent or abusive according to generally accepted principles of online marketing, such as those prohibited by the leading programs for affiliate marketing and keyword advertising. Fraudulent actions also include the generation of queries, completion of surveys or referrals through any automated means or with use of any false information.
5.16 Brandnew reserves the right, but shall have no obligation, to screen and review the Creator Account, the Creator’s display of advertisements and its use of the Platform in order to determine whether a violation of these T&C’s has occurred or to comply with any applica-ble law, regulation, administrative or governmental request. Brandnew reserves the right to exclude certain methods of promotion or advertisement relating to Creator Accounts or spe-cific products and services from use.
6. Fees and Payments
6.1 The Creator’s registration with the Brandnew Platform is free of charge.
6.2 The Creator’s activities shall be remunerated subject to the individual arrangements for each advertising campaign and the Advertiser’s verification and subsequent confirmation. In case the Advertiser does not grant or retracts its confirmation or in case the generation of the credits was based on a technical defect, manipulation or deceit, or on a violation of the T&Cs, Brandnew is entitled to post reverse charges to the Creator’s Account within a time limit of twelve (12) weeks after disbursement or to request a repayment of the disbursed amount. Brandnew’s right to request a repayment according to the statutory provisions shall remain unaffected.
6.3 Brandnew shall prepare for the Creator a credit note reflecting the credits for the adver-tisement/advertising campaign. The Creator will be notified via the dashboard or via email once the credit note has been completed.
6.4 The Creator is obligated to review the credit note and to complain to Brandnew in writing regarding any apparent defects or defects recognizable to the Creator in accordance with standard commercial business measures without delay, but at the latest within 14 days up-on receipt of the credit note. Any and all credits/compensation shall lapse within the statutory limitation periods.
6.5 Brandnew shall disburse the credits within thirty (30) days after receiving funds from the advertiser. The money transfer will be made to the Creator’s account stated in the Creator’s Brandnew account settings.
7. Termination, Suspension
7.1 This Agreement is entered into for an unlimited period of time, unless otherwise agreed between Brandnew and the Creator.
7.2 Unless otherwise agreed the Creator and Brandnew shall each be entitled to terminate this agreement at any time for convenience with immediate effect.
7.3 In any event the right to terminate the agreement for good cause shall remain unaffect-ed. That shall particularly apply in case there are circumstances which jeopardise the proper performance of the contractual relationship, in particular, in case the Creator materially breaches any of its obligations according to these T&Cs. In such case each party shall be entitled to terminate the registration (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach by the end of the thirty (30) day period, (ii) effective immediately and without notice if the other party commits infringements which are so severe that the observance of a notice period cannot reasonably be expected. Brandnew may also terminate the registration if the Creator has shown no activity on the Platform or the Creator Account for a period of six months.
7.4 If there is no technical functionality to terminate the registration in the Platform, the ter-mination has to be declared in written form. A termination for good cause can only be de-clared in writing. Email is sufficient for this purpose.
7.5 The Creator shall not continue to display advertisements agreed upon with an Advertiser via the Platform after the termination of the Creator’s registration with Brandnew has taken effect.
8. Defects and Limitation of Liability
8.1 We shall be liable for defects of our services as described in section 4 according to the statutory provisions unless otherwise stated herein below. The Creator is not entitled to a specific design of the Platform or any specific services other than determined in these T&Cs. The Creator understands that the Platform may be subject to amendments, updates and/or upgrades and, thus, the Creator does not have any claim against Brandnew to reverse any amendments, updates and/or upgrades in case the Creator does not agree with the amendments, updates, and/or upgrades. Thus, the Creator cannot claim that a given state or functional range is maintained or achieved. In case of any defects please contact our sup-port team for further assistance.
8.2 We reserve the right to temporarily take down the Platform or parts thereof in case we reasonably conclude that Advertisers, Creators or any other third parties are using the Plat-form to engage in (a) denial of service attacks, (b) spamming, (c) improper uses according to these T&Cs, (d) illegal activity, and/or (c) actions that are causing immediate and material harm to Brandnew or others. Any suspension or takedowns, e.g., in accordance with sec-tions 4.3 and/or 4.5, shall not be deemed as a defect.
8.3 Apart from a violation of material contractual duties, Brandnew will only be liable to the Creator in the event of intent and gross negligence. “Material contractual duties” means con-tractual duties, the compliance with which makes the proper performance of the registration possible in the first place and in relation to which the Advertiser may regularly rely on their compliance. To the extent that Brandnew is liable for slight negligence, the liability for materi-al damage and pecuniary loss will be limited to the typical and foreseeable damage. Any lia-bility for other direct or consequential damage is excluded.
8.4 The aforementioned limitations of liability do not apply in the event of a violation of life, body or health, a fraudulent concealment of a defect, the assumption of a guarantee or pro-curement risk, and for liability under the German Product Liability Act.
8.5 To the extent that a liability of Brandnew is excluded or limited, this also applies to Brandnew’s directors, employees, representatives and agents.
9. Data Privacy and Safety
9.1 The Creator represents and warrants to comply with the statutory data privacy provisions applicable to the individual advertising campaign. That particularly applies to the collection, storage and processing of personal data through the respective advertisement campaign. You acknowledge that you are fully responsible to always receive the required consent (if any) to use and process the personal data of third parties and any individuals for the scope and the extent of your intended use.
10.1 The parties shall not disclose to any third party any confidential information of the other party including but not limited to the subject and the concrete design of the advertisement, any data (including any usage data and compilations thereof), information or software relat-ing to the Platform; and/or any other information designated in writing, or identified orally at the time of disclosure, by the disclosing party, as “confidential”.
10.2 The foregoing restriction does not apply to information that has been developed inde-pendently by the receiving party without access to the other party’s confidential information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of a confidentiality obligation of the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
10.3 This confidentiality obligation shall survive any termination of the contractual relation-ship between the Creator and Brandnew.
11.1 All or any of Brandnew’s rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the Platform in a merger, acquisition or sale of all or substantially all of Brandnew’s assets.
11.2 The Creator is not entitled to assign or transfer any or all of its rights under these T&Cs without the prior written consent of Brandnew.
11.3 If any provision of the T&Cs shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from the T&Cs and shall not affect the validity and enforceability of the remaining provisions.
11.4 No oral side agreements were made. Any amendments or supplements to these T&Cs must be in writing to be effective. This also applies to the cancellation of this written form requirement. Any changes, amendments or the abrogation of the Agreement (partly or entire-ly) require written form (letter, fax or email); the requirement of written form can only be waived in written form.
11.5 We reserve the right to amend the present T&Cs at any time. The Creator will be notified of changes to the T&Cs in appropriate form through the Platform or via email. The Creator may dispute changes to the T&Cs within a time period of two weeks following receipt of the notification of the changes and the possibility of taking notice thereof. The changes to the T&Cs become binding in the event that the Advertiser does not dispute the changes within the above-mentioned time period or continues to use the Platform after having received the notification of the changes to the T&Cs without having disputed the changes. We will inform you on the aforementioned legal effect simultaneously with our notification of the intended changes to these T&Cs. If the Creator disputes the changes in time, each party may termi-nate the Agreement with one month’s prior notice. Until termination, the T&Cs in their former version will govern the Creator’s relationship with Brandnew.
11.6 Wherever applicable, the courts of Berlin, Germany, shall have exclusive jurisdiction.
11.7 These T&Cs, the use of the Platform as well as the contractual relationship between the Parties shall be governed and interpreted according to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the Interna-tional Sale of Goods and German International Private Law is excluded.
Berlin, October 2016
Brandnew IO GmbH – Marienstr. 10 – 10117 Berlin – Germany – firstname.lastname@example.org – www.brandnew.io – Amtsgericht Charlottenburg: HRB 150434 B – Managing Director: Fran-cis Trapp