TERMS PETFLUENCER

TERMS OF USE FOR INFLUENCER (“PETFLUENCER”)

 

Preamble

Mauz & Wauz GmbH, Bahnhofstr. 75/1, D-73630 Remshalden, Germany (hereinafter “Petfluencer.com”) operates an online platform (hereinafter “Portal”) for companies (hereinafter “Brands”) and corporate influencers (hereinafter “Petfluencer”) under the Internet address https://www.petfluencer.com.de, on which brands can automatically contact Petfluencer for advertising campaigns after appropriate registration. The portal serves the purpose of bringing together petfluencers and brands successful on social media platforms (such as YouTube, Instagram, Facebook, blogs etc. – hereinafter “platform”) as brand companies for the purpose of producing petfluencer content and related communication. Petfluencer.com also takes over the collection of the fees for the petfluencers.

1 General information

Petfluencer.com operates the portal on which Petfluencer can apply for campaigns of brands after appropriate registration in order to support the brands in increasing the reach of campaigns by publishing targeted content (“Petfluencer content”) on platforms. Petfluencers must be entrepreneurs of full age within the meaning of § 14 BGB. The petfluencer confirms with the registration that he is an adult entrepreneur. Consumers are expressly excluded from participation as petfluencers. Also excluded from use are petfluencers that increase or subsequently increase their range through purchased, fraudulent or otherwise abusive increased followers. In case of an offence the petfluencer is excluded from the use of the portal. Petfluencer.com is entitled to have the entrepreneurial status proven by suitable documents.

The terms of use contain the exclusively valid conditions for registration and use of the portal between the petfluencer, the brand and Petfluencer.com. Differing, conflicting or supplementary general terms and conditions of the Petfluencer only become part of the contract if and insofar as Petfluencer.com has expressly agreed to their validity.

Through the mediation of the Petfluencer to Brands by Petfluencer.com, a relevant provision of the portal and a production of the Petfluencer contents no connection of the parties under company law comes about.

Petfluencer.com offers a regular newsletter, which should inform the petfluencer about new possibilities and own offers on the portal. If the petfluencer declares by ticking the checkbox that he wishes to receive the newsletter and clicks the link in the confirmation e-mail, the petfluencer will receive the newsletter regularly sent to the e-mail address given by him during registration. The petfluencer can revoke the consent at any time, e.g. with the link listed in every newsletter for cancellation or by e-mail to info@petfluencer.com or by clicking on the “unsubscribe link” in the newsletter.

2 Registration and use of the portal

The contract between the petfluencer and Petfluencer.com is concluded by filling out and sending the respective registration form (entering the user data, acceptance of these terms of use and the privacy agreement by placing a check mark) and the confirmation e-mail from Petfluencer.com to the e-mail address provided by the petfluencer. By sending the completed registration form the petfluencer bindingly acknowledges the validity of these terms of use within the scope of the registration process.

A claim to participation, registration or activation does not exist.

All information of the petfluencer must be true. Only one user account can be registered for each petfluencer.

As far as the petfluencer as a small entrepreneur does not have a VAT identification number, but only the already deposited tax number, he has to indicate this accordingly in the context of the registration. As a small business owner no value added tax is levied or invoiced on the services rendered by the petfluencer. If the tax status of the petfluencer as a small business changes, the petfluencer must immediately inform Petfluencer.com of this together with his VAT identification number. Immediately is the notification, if it is present before the next accounting of Petfluencer.com about services of the Petfluencer.

Reasonable changes of these terms of use will be communicated to the petfluencer in text form, i.e. in writing, by fax, by e-mail or by a logged reference page after a login to the portal. If the petfluencer does not object to these changes within six weeks after receipt of the notification, the changes are considered accepted.

The transfer of a user account is only possible with the prior written consent of Petfluencer.com.

The petfluencer has to take care that his user account can be used exclusively by him and will take the appropriate precautions for the secrecy of the respective passwords for this purpose and will not pass the passwords on to third parties. The petfluencer is obligated to inform Petfluencer.com immediately if it becomes known to him that his access data are used unauthorized or this use is possible by an unauthorized acquisition of the access data.

When using the portal the petfluencer is obliged to follow the applicable laws, portal and platform regulations. It is the petfluencer’s own responsibility to ensure that the petfluencer contents are lawful and that no rights of third parties (copyright, trademark law, competition law etc.) are violated. The petfluencer commits himself not to spread unauthorized advertising, spam or inapplicable warnings of viruses, malfunctions and the like or to ask for participation in lotteries, snowball systems, chain letters, pyramid games and similar actions.

The petfluencer is not entitled to advertise outside of the portal or to carry out these projects at briefings which he has learned about by using the portal.

The petfluencer must link his platform account with Petfluencer.com so that Petfluencer.com and the brands can check the suitability of the petfluencer by means of the analytics data or equivalent statistical data of the respective platform channel of the petfluencer. This also allows Petfluencer.com and the brands to recognize which content the petfluencer has already published.

The petfluencer or Petfluencer.com can create a profile in form of a sedcard to the petfluencer, which is based on the given profile data of the petfluencer. The Sedcard serves the representation of the Petfluencer opposite the Brands and is made available to these for this and serves thus the marketing of the Petfluencer. The petfluencer can download the sedcard from the portal for own purposes.

For the publication of the petfluencer contents the regulations of the respective platform apply.

In case of violation of the regulations of these terms and conditions of Petfluencer.com and/or the respective platform conditions, the petfluencer can be excluded from the use of Petfluencer.com with immediate effect.

3 Project procedure

After successful registration the petfluencer links his platform account(s) and can build up a profile or several sub-profiles of his animals on the Petfluencer.com portal, view/receive briefings, communicate with brands and create own applications/offers.

The brand creates a request, with desired contents, which contains the different requirements for the respective project (“briefing”). Part of the briefing are positive requirements (“Dos”), which must be an unconditional part of the petfluencer content, as well as restrictive regulations, which must not be violated under any circumstances with the production (“Don’ts”). If the profile of the petfluencer or his standard offer with his channel matches the requirements, Petfluencer.com will send the petfluencer the briefing with project details about content, earliest possible release date and fee. The earliest possible publication date is one calendar week, within or from which the Petfluencer will provide the Petfluencer content of the Brand. The petfluencer can apply for it with his channel and a petfluencer content proposal (“offer”). In addition the petfluencer indicates whether and on which further calendar weeks he can publish the petfluencer content. In his offer, the petfluencer also indicates a thousand-contact price (TKP) and whether he is subject to the obligation to pay the artists’ social insurance. The Brand can accept the offer of the Petfluencer at any time, at the latest by 23:59 on the last day of the calendar week preceding the week of publication, whereby project contracts for each individual completion period are concluded between Brand and Petfluencer. If the petfluencer only offers to upload the petfluencer content for the calendar week specified by the brand, only one project contract is concluded. If the petfluencer offers several dates, a project contract is concluded for each date accepted by the Brand. Until the acceptance by the Brand, the petfluencer can withdraw his offer at any time. The briefing of the Brand, the petfluencer’s offer to the briefing and the acceptance of this offer by the Brand form the binding content of the Project Contract, which is recorded in each case in the project summary transmitted after conclusion of the contract.

The petfluencer acquires neither a claim to the award of the contract nor that of an exclusive award for the Brand’s bid with the sending of the bid.

The petfluencer will produce the respective offered petfluencer contents according to the specifications in the briefing after the award of the contract by the Brand.

If delays or problems occur in the production of the petfluencer contents, the petfluencer must inform the Brand immediately. After being informed by the petfluencer, the Brand can decide at its own discretion whether a delayed publication is still of interest, especially because of possible ties to campaigns and their timing. Unless otherwise agreed in the briefing, the publication date is always a fixed date. It is therefore regulated and agreed that in the case of a notified delay no grace period by fire has to be set in order to withdraw from the contract.

After completion of the production, the petfluencer makes the petfluencer content available according to the completion deadline in the briefing of the Brand by the petfluencer according to the respective platform provisions (i) publishing the respective contractual petfluencer content, (ii) submitting it to the Brand on the defined date (fixed date) in the field provided for this purpose as a link in the Petfluencer.com portal and (iii) making it available on its platform channel for a period of at least 30 calendar days. For the publication of the petfluencer content during these 30 days, the petfluencer has a predefined time window at its disposal, which is calculated on the calendar week of the completion date. A previous or late transmission via the data field provided in the Petfluencer.com portal (see above) violates the project regulations and is technically not possible.

After completion of the project, for the visualization of the success and for good performance of the Petfluencer, Petfluencer.com will provide the brand with selected comments from followers and viewers of the Petfluencer. The right of the petfluencer to demand that only certain comments are given to the brand does not exist. Petfluencer.com decides which comments are passed on at its own discretion.

The brand has the right to stop the production of a petfluencer content at any time. Even after the publication of the petfluencer content, the brand can demand from the petfluencer at any time that the petfluencer no longer publishes a petfluencer content or makes it available in any form for retrieval.

4 Compensation

The mere registration is free of charge for the petfluencer. For the use and successful mediation of a project contract via the portal of Petfluencer.com Petfluencer.com receives a project-dependent remuneration (service fee) from the Petfluencer. For producing the Petfluencer contents at the agreed completion date and the advertising value the Petfluencer receives the agreed remuneration. The amount of the fee depends on the conditions of a project as defined in the respective briefing, the CPM indicated by the petfluencer and the actually achieved coverage of a publication, but always limited to the maximum amount of the fee indicated in the project summary. For the successful mediation of a project between Petfluencer and Brand a service fee is due. The amount of the service fee is stated in the briefing and amounts to 20% of the respective project budget. The petfluencer commissions Petfluencer.com with the collection of the fee in relation to the Brand and assigns the share of the service fee to Petfluencer.com. Petfluencer.com accepts the assignment.

All prices are net prices in Euro and apply plus the legal value added tax as far as applicable.

All prices and/or the budget include if necessary resulting contributions to the social insurance for artists of Petfluencer.com. The petfluencer independently takes care of a possible obligation to show and pay contributions to the social security for artists.

After timely publication of the Petfluencer contents the range of the published Petfluencer contents is measured over the duration of 30 calendar days by Petfluencer.com. For projects on Instagram, the success of the reach is determined by the number of followers after 30 days. For projects on Facebook, the success of the reach is measured by the “reached people” after 30 days. For projects on blogs, the success of the reach is determined by the gross impressions after 30 days. The reach is calculated from the end of the completion period. The fee is determined according to the amount of coverage determined in this way, but at most the maximum amount defined in the project summary minus the service fee and the brand will receive an invoice from Petfluencer.com for the fee incurred. This remuneration consists on the one hand of the fee for the production of the Petfluencer contents by the Petfluencer and on the other hand of the service fee for the successful mediation of a project between Petfluencer and Brand. The remuneration is settled and collected by Petfluencer.com in the name of the petfluencer. The service fee, on the other hand, is the fee for the own contribution of Petfluencer.com, which settles it in its own name. In both cases the account takes place plus if necessary resulting legal sales tax. After complete receipt of the invoice amount from the fire Petfluencer.com transfers the payment minus the service fee to the Petfluencer. It is clarified and regulated that no fee is owed for further call-off payments that exceed the 30 days.

If the production of a petfluencer content is interrupted by the fire before or after the completion date, the petfluencer receives an adjusted fee (cancellation fee) in the amount of the maximum amount defined in the project summary, which results from the estimated range of a petfluencer content. In case of cancellation by the brand up to one calendar week before the latest possible publication date, the petfluencer will receive 100% of the remuneration. Up to two weeks before the latest possible publication date the petfluencer receives 75% of the remuneration. Until three weeks before the latest possible publication date the petfluencer receives 50% of the compensation and until four weeks before the latest possible publication date the petfluencer receives 25%. The service fee for the provision of the platform is not affected by a cancellation of the fire and remains undiminished. The service fee for Petfluencer.com is also due in full if the production of the Petfluencer content was cancelled before or after production and/or publication and also if the Petfluencer does not perform according to the terms of the briefing.

In contrast, the petfluencer does not receive any remuneration if his petfluencer content violates the contractually agreed contents, especially with the use of purchased Like or Follower or the Do’s or Don’ts defined in the project summary. In the event of a dispute about the existence or non-existence of do’s or don’ts or a contractual violation, the right to make a decision in this regard is vested in the Brand, and the decision may be reviewed by a court of law. Because of the fixed deal character, the possibility of supplementary performance or rectification is omitted in this respect, which the petfluencer hereby waives at the same time.

The aforementioned right according to para. 6 to non-payment due to defects in the petfluencer content or an alleged non-compliance with do’s or don’ts does not exist if the petfluencer content produced by the petfluencer was available for more than 14 days after the agreed publication date.

 

5 Rights, data protection regulations

The personal data deposited by the petfluencer or management will be used within the scope of the data protection declaration issued by the petfluencer and in accordance with the legal regulations of the data protection law, in particular those of the Federal Data Protection Act (BDSG), the Basic Data Protection Regulation (DSGVO) and the Telemedia Act (TMG).

Contact for questions regarding data protection is our data protection officer:

 

Prof. Dr. Felix Buchmann
BSB Quack Gutterer
Alexanderstrasse 9b
70184 Stuttgart

Phone: +49 711 953 382 0
Fax: +49 711 953 382 29

e-mail: stuttgart@quack.legal

 

All contents of the portal (texts, pictures, graphics etc.) including all software components of the portal, especially the database, are protected by copyright and other protective laws. It is prohibited to reproduce, copy, change and/or edit the portal or parts thereof.

The petfluencer grants Petfluencer.com the right that Petfluencer.com advertises the successful project on the portal and also publishes, processes and uses the company name as well as project details of the petfluencer. This also applies to the sedcards created by Petfluencer.com, which are passed on to brands as a profile.

For the visualization of the successful projects and for image advertising of the petfluencers Petfluencer.com can provide the brands with selected comments from followers and viewers of the petfluencers.

6 Liability

There is no claim to uninterrupted availability of the portal at any time. Petfluencer.com is not liable for technical failures or the availability of the offer, unless Petfluencer.com is guilty of intent or gross negligence.

Petfluencer.com is entitled to carry out maintenance and care work on the portal and will try to keep disturbances of the accessibility and usability of the portal as low as possible.

Petfluencer.com is only liable for damages other than those caused by injury to life, body and health if they are based on intentional or grossly negligent action or on culpable violation of a fundamental contractual obligation (so-called “cardinal obligation”, i.e. an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely) by Petfluencer.com or its vicarious agents.

Any further liability for damages is excluded. In particular, compensation for lost profit, indirect damages as well as other financial losses in case of simple negligence is excluded. The provisions of the Product Liability Act shall remain unaffected; furthermore, liability for fraudulent concealment of a defect, for an expressly guaranteed quality and for personal injury shall remain unrestricted.

As far as Petfluencer.com negligently violates an essential contractual obligation, the obligation to pay compensation is limited to the typically foreseeable damage, in any case, however, to the amount of 50.000,- EUR.

Petfluencer.com is not liable for the loss of data, if the damage would not have occurred in the area of responsibility of the Petfluencer in case of proper data backup. A proper data backup is to be assumed if the petfluencer verifiably backs up the data stock at least daily in machine-readable form and thus guarantees that these data can be restored with reasonable effort. The liability of Petfluencer.com for the loss of data is limited to the typical recovery effort that would have occurred with proper data backup.

The petfluencer is obligated not to use any contents and means in the production of petfluencer contents, offers and briefings which are punishable by law or otherwise violate legal regulations; this includes in particular pornographic, seditionary, copyright infringing, competition infringing, immoral, insulting or extremist contents. In addition, the petfluencer will adhere to the relevant and valid regulations of the respective platform – in particular community guidelines, technical guidelines and the advertising guidelines as well as the principles of the state media authorities for proper advertising, especially appropriate labelling – when producing the petfluencer contents, offers and briefings in question. This also includes that the petfluencer may not artificially increase his range or the range of his contributions by buying followers or likes, by fraudulent or otherwise abusive or unfair acquisition. Petfluencer, artist and brand are solely responsible for ensuring that the respective Petfluencer contents comply with the terms of use of the respective platform and applicable law.

The petfluencer exempts Petfluencer.com from all claims of third parties, especially those that arise from a violation of copyright, trademark law, competition law, media law, tax law, social security law (also artist social security law) or other contractual obligations of the petfluencer.

Petfluencer.com and the Brand are not liable for any additional tax claims resulting from the violation of the obligation to show the sales tax or any violation of the obligation to pay any social security contributions, any interest or other damages resulting from this, as far as they are based on missing or wrong information from the petfluencer. Incorrect information or a lack of information are at the expense of the petfluencer. The petfluencer exempts Petfluencer.com as well as the fire from third party claims. Petfluencer.com only provides the mediation of the order between the petfluencer and the brand. Petfluencer.com is therefore not liable for the payment of the remuneration from the brand to the petfluencer. Petfluencer.com is not responsible for the contents of the petfluencer, briefings and offers. Petfluencer.com does not check these petfluencer contents and therefore does not take over any guarantee for the correctness of the project data, qualifications, information about identity, bank data etc. deposited by the petfluencer or brand. Likewise Petfluencer.com does not check whether and to what extent the Petfluencer content created by the Petfluencer meets the briefing requirements.

 

7 Confidentiality

The petfluencer undertakes to maintain silence about the projects and implementation for the production of the petfluencer contents. This includes all information that is communicated within the platform, especially briefings and details of the brand, the amount of remuneration or remuneration rates as well as contents that are created in direct communication with the petfluencer. Information from Petfluencer.com is also considered to be confidential information.

The petfluencer is in particular prohibited to distribute, announce or otherwise publish this information on the internet, especially in so-called social networks and media.

Excluded from this obligation is such information that were already known to the Petfluencer before without obligation of secrecy or are or become generally known, without the Petfluencer being responsible for this or the Petfluencer is informed or given to the Petfluencer by a third party without obligation of secrecy or are to be made available to authorities on the basis of legal regulations or by the Brand or Petfluencer.com to the Petfluencer have been released in writing for announcement.

8 Final provisions

The place of performance, payment and fulfilment is the registered office of Petfluencer.com.

This agreement is governed exclusively by the law of the Federal Republic of Germany under exclusion of international private law and under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG), even if a contracting party has its registered office abroad.

Exclusive place of jurisdiction for all disputes arising from the contractual relationship with the Petfluencer is Stuttgart.

For any agreements between Petfluencer and Brand among themselves, the law of the Federal Republic of Germany is also agreed under exclusion of international private law as well as under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG); Petfluencer and Brand may make agreements among themselves that deviate from this.

Should any provision of these terms of use be or become invalid, this shall not affect the validity of the remaining provisions. Instead of the ineffective provision, the relevant statutory provisions shall apply.

 

 01.01.2020

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