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 referred to as the “Platform”) to leverage the success and the awareness level of advertising campaigns and advertised products. The Platform enables brand advertisers to identify key content creators from a global network (hereinafter referred to as “Creators”) to target your audience. The Platform provides profile analytics helping you to get in touch with the Creators suitable to promote your advertisement and assists you in analysing and tracking your advertising campaign through a state-of-the-art real-time reporting dashboard on a SaaS-basis as well as to execute campaigns, manage Creator relationships and monitor campaign KPIs.
The following terms and conditions apply to all registration requests and/or subscription contracts submitted online through our Platform. Please carefully read these terms and conditions before registering and/or subscribing 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 brand advertiser (hereinafter referred to as “Advertiser”, “you”, “your”) 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 Advertiser with provisions deviating from and/or additional to the T&Cs do not apply unless we expressly agreed to them in writing. This further applies in case we accept your registration request without expressly objecting to your terms and conditions.
2.3 We merely offer our services to undertakings and legal entities. We do not offer our services to private persons. You qualify as a private person in case the purpose of your registration 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 pursuit of business interests, or legal entity or incorporated partnership.
3.1 The use of our services requires a registration of the Advertiser through our online registration form which is available on our Platform. Please fill in the data as requested by the registration form and within the registration process and submit your registration request by activating 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 unless 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.
3.4 Upon registration you grant to Brandnew the right to use your name as a reference for Brandnew’s services. This includes the right to use your logo on our websites. You may revoke this right at any time, in writing, for any future use.
3.5 The Advertiser shall keep all access data (login, passwords etc.) for the Platform (“Access Data”) strictly confidential. The Advertiser 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 Advertiser’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 respective account. Brandnew will promptly inform the Advertiser and will, upon request, communicate 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 to Advertisers who successfully registered with us access to the Platform and the right to use its technical functionalities including the dashboard to present the subject and the details of the advertisement with respect to the intended advertising campaign. Our Platform enables the Advertiser to identify one or more Creators to increase the advertising impact of specific advertising campaigns in order to create and/or promote the sale and/or the awareness of the advertised products. The Creator provides its advertising environment in social media and/or in the World Wide Web in order to assist the Advertiser in its promotional activities for the aforementioned purpose.
4.2 We do not owe any success with respect to the identification of specific Creators or their suitability for the intended advertising campaign. Further, we are not liable for the successful performance of the advertising campaign and/or its commercial success. For the avoidance of doubt, our services are limited to the provision of the Platform and its technical functionalities 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 (Bürgerliches Gesetzbuch – “BGB”).
4.3 We assure you that we use our best efforts to provide a smooth user experience with our Platform and strive to provide state-of-the-art technical functionalities ensuring a successful advertising campaign. We shall
(i) host or have a third party provider host the Platform;
(ii) grant registered Advertisers access to the restricted user area of our Platform;
(iii) provide technical functionalities to identify, analyse and track Creators, present advertising campaigns to Creators and monitor the performance of advertising campaigns;
(iv) maintain the technical functionalities of the Platform in particular update and/or upgrade the Platform in irregular intervals and whenever Brandnew deems such update and/or upgrade as being important for the functionalities of the Platform.
(v) improve the technical functionalities of the Platform and adapt the Platform to technical progress at our discretion;
(vi) either provide basic support through Brandnew’s online support portal to Advertiser at no additional charge; or provide upgraded support, if made available by Brandnew and subscribed to by the Advertiser;
(vii) Please note that 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 Brandnew may, from time to time, at no additional charge, permit Advertisers to use certain pre-release Platform features in connection with experimental testing by Advertiser that are not commercially available (“Free Services”). In case we offer you the opportunity to participate in such Free Services, the following shall apply:
(i) Limitations to the scope of Free Services may apply as specified in the applicable subscription details. To the extent the Advertiser’s use of Free Services exceeds such limitations, additional charges may apply. Oberservance of such limitations lies within the Advertister’s exclusive responsibility.
(ii) Free Services are provided solely and exclusively on an “as-is” basis, without warranty, support or indemnities of any kind. The Advertiser assumes and unconditionally releases Brandnew from all risks associated with the use of any Free Services.
(iii) Brandnew may discontinue the Free Services at any time without liability to the Advertiser.
5. Advertiser’s Rights and Responsibilities
5.1 The Advertiser may offer Creators to assist the Advertiser with and participate in its advertising campaign subject to (i) the specifications of the intended advertisement, (ii) these T&Cs and (iii) any applicable additional terms and conditions provided by you with respect to your advertisement. You will receive an overview of the active Creators which you may invite to participate. Alternatively, the Creators may apply for participation in your advertising campaign.
5.2 Upon acceptance of the Creator’s application or Advertiser’s invitation to participate in an advertising campaign, an individual contract concerning the performance of the advertising services (Sections 611 et seq. German Civil Code) 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 additional 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 The Advertiser shall provide complete and correct information and advertising material in an appropriate form required and suitable to implement and execute the advertising campaign. The Advertiser shall brief and instruct the Creators on the purpose and any characteristics of the advertising campaign as well as the use of the advertising material.
5.4 The Advertiser warrants and represents that the initiated advertising campaign, its performance, and/or the provided information, advertising material, and any additional terms and conditions of the advertising campaign do not infringe any third party rights and/or any applicable statutory provisions, including but not limited to data privacy law and tele media law. Further, the Advertiser ensures that the advertisement contains mandatory product information as requested by German and/or European law. The Advertiser undertakes to respect any applicable terms and conditions of third party websites, including, without limitation, any social media websites. It is your responsibility to clear any conflicting rights prior to submitting your advertisement to the Platform.
5.5 The Advertiser undertakes to configure the technical parameters of its advertising campaign, such as any tracking settings, reporting settings for campaign analytics, and to establish and administer enforceable terms for advertising campaigns as a pre-condition to the participation of Creators and users in the advertising campaign.
5.6 The Advertiser represents and warrants not to submit any advertisement to Brandnew or the Platform that is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene, or contains links to content of such nature. In case the specific advertisement is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene in certain countries or regions of the world only (“Restricted Countries”), the Advertiser shall block Restricted Countries for such advertisement using the respective dashboard tool or instruct Brandnew not to display the advertisement in Restricted Countries. Further, the Advertiser shall not submit any advertisement which contains or links to spam, bulk mail or offers with hidden costs, or which may harm the interests of Brandnew, the Creators and/or the target audience in any similar way. The Advertiser 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 other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
5.7 Brandnew is entitled but not obliged to screen advertisements on a random basis before their activation for an advertising campaign and/or activated advertisement campaigns in order to verify their compliance with these T&Cs.
5.8 Brandnew may, at its sole discretion, deactivate or remove any advertisement which, in Brandnew’s reasonable opinion, is contradictory to these T&Cs. Brandnew undertakes to inform the Advertiser without undue delay in case an advertisement has been removed. The Advertiser can replace the advertisement with another advertisement which complies with these T&Cs.
5.9 The Advertiser may object to the decision of Brandnew to remove the advertisement and request Brandnew to review its decision. If, upon further review, Brandnew agrees with the Advertiser, it shall promptly re-activate the advertisement. If, however, Brandnew still disagrees with the Advertiser, Brandnew may, at its reasonable discretion:
(i) refrain from resuming the advertisement through the Platform; or
(ii) resume the advertisement, but inform any Creators in an appropriate way that it holds the advertisement to be contradictory to the T&Cs, and suggest the Creators put it on a blacklist.
5.10 The Advertiser may not:
(i) sell, resell, rent, lease, transfer, assign, time-share or otherwise commercially exploit its access to the Platform and the subscription for the benefit of any third party except as expressly permitted under this Agreement;
(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 Platform;
(iii) incorporate any data mining, robots or similar data gathering or extraction methods into 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 Brandnew’s prior knowledge and consent.
5.11 The Advertiser 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 Advertiser of any statutory or regulatory obligation, any claim for injury or damage to property, personal injury, death or other cause of action involving any claim arising out of the Advertiser’s activities pursuant to the subscription or other conduct of its businesses.
5.12 In the event that the Advertiser negligently or willfully breaches any of its obligations as determined in these T&Cs the Advertiser 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 payable and any contractual penalty due shall be credited against the claimed damages. Further, we reserve the right to terminate the subscription and/or suspend or limit the access to the Platform and our services, respectively, for the duration of the persistent breach of the obligation.
5.13 To the extent that any obligation of the Advertiser under these T&Cs protects the interests of the Creators, it shall apply for the benefit of the Creators (Echter Vertrag zugunsten Dritter, section 328 BGB).
6.1 The access to our Platform is subject to an annual subscription. The subscription fee is individually determined and specified by Brandnew. The subscription fee will be due once Brandnew confirmed the registration of the Advertiser and delivered Access Data for an initial login to the Platform.
6.2 Advertising campaigns are subject to additional fees depending on, inter alia, the volume of the planned advertising campaign and the kind and number of involved Creators. The individual campaign fees will be displayed on your dashboard once you have uploaded your advertisement and selected your desired Creator(s). The campaign fee is due upon the conclusion of the contract in accordance with section 5.2.
6.3 Unless otherwise stated (i) fees are quoted and payable in Euros; (ii) fees are payable for the entire subscription, unless otherwise agreed fees are payable respectively for one subscription term period in advance; the standard subscription term period is 1 year; (iii) subscriptions cannot be decreased during the relevant subscription term, and (iv) payment obligations are non-cancellable and payments are non-refundable. The subscription fee is payable in full thirty (30) calendar days after the invoice date unless otherwise stated in the registration confirmation and unless payment has already been settled electronically during the registration period in advance. Brandnew may charge the Advertiser an administrative processing fee in connection with certain transactions.
6.4 The Advertiser may only offset counterclaims against claims of Brandnew if the Advertiser’s counterclaims are undisputed or unequivocally established by a binding and final court judgment. The Advertiser can only exercise a right of retention if its counterclaim is based on the same contractual relationship.
7. Termination, Suspension and Refund
7.1 Unless otherwise agreed the Advertiser shall be entitled to terminate the subscription at any time for convenience.
7.2 The right to terminate the subscription for good cause shall remain unaffected. That shall particularly apply in case there are circumstances which jeopardise the proper performance of the contractual relationship, in particular, in case the Advertiser infringes any of its obligations according to these T&Cs. In such case each party shall be entitled to terminate the subscription (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 ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder.
7.3 If there is no technical functionality to terminate the subscription on the Platform, the termination has to be declared in written form. A termination for good cause can only be declared in writing. Email is sufficient for this purpose.
7.4 Each advertising campaign may be cancelled with immediate effect using the respective technical dashboard functionalities – if any – or by written letter or email. Cancellation of an advertising campaign is subject to the following cancellation fees:
Up to two (2) weeks before campaign start – No fees
Later than two (2) weeks after campaign start – 30% of the net/campaign cost
After campaign start – 100% of already delivered services and 50% of the open or remaining net/campaign cost
7.5 Upon termination of the subscription by the Advertiser according to section 7.2, Brandnew will provide to the Advertiser a pro-rata refund of subscription fees for the remainder of a terminated subscription term period. The same applies in case Brandnew is permanently unable to provide its services, in particular in case the operation of the Platform became impossible to Brandnew.
7.6 In case Brandnew terminates for good cause, Brandnew for compensation of its damages claims against the Advertiser is entitled to keep up to 75 % (seventy-five percent) of all advertising campaign funds still credited to the Advertiser’s account. The Advertiser remains free to prove that no or only substantially lower damage has been incurred.
7.7 Brandnew may, with prior or concurrent notification to the Advertiser, suspend or limit access to the Platform if payments owed by the Advertiser are thirty (30) or more days overdue (or ten (10) or more days overdue in the case of credit card or other electronic payments). For the avoidance of doubt, the suspension shall not result in the expiry of the claim to the continued payment of any outstanding fees. Brandnew shall, however, provide the Advertiser with the agreed services, once all payments have been settled in full.
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. The Advertiser is not entitled to a specific design of the Platform or any specific services other than determined in these T&Cs. The Advertiser understands that the Platform may be subject to amendments, updates and/or upgrades and, thus, the Advertiser does not have any claim against Brandnew to reverse any amendments, updates and/or upgrades in case the Advertiser does not agree with the amendments, updates, and/or upgrades. Thus, the Advertiser cannot claim that a given state or functional range is maintained or achieved. In case of any defects please contact our support 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 the Advertiser, Creators or any other third parties are using the Platform 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 takedown in accordance with sections 4.6 (vii) or 5.11 shall not be deemed a defect.
8.3 Apart from a violation of material contractual duties, Brandnew will only be liable to the Advertiser in the event of intent and gross negligence. “Material contractual duties” means contractual duties, the compliance with which makes the proper performance of the subscription 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 material damage and pecuniary loss will be limited to the typical and foreseeable damage. Any liability for other direct or consequential damages 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 procurement 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 Advertiser 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 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 relating 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 independently 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 the confidentiality obligation, 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 relationship between the Advertiser 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 Advertiser 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 entirely) require written form (letter, fax or e-mail); 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 Advertiser will be notified of changes to the T&Cs in appropriate form through the Platform or via email. The Advertiser may dispute changes to the T&Cs within a time period of two weeks following receipt 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 Advertiser disputes the changes in time, each party may terminate the Agreement with one month’s prior notice. Until termination, the T&Cs in their former version will govern the Advertiser’s relationship with Brandnew.
11.6 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 International Sale of Goods and German International Private Law is excluded.
Berlin, October 2016 Brandnew IO GmbH – Marienstr. 10 – 10117 Berlin – Germany – email@example.com – www.brandnew.io – Amtsgericht Charlottenburg: HRB 150434 B – Managing Director: Francis Trapp