The following General Terms and Conditions (hereinafter referred to as "GTC") of Philipp Hundt & Patryk Rzyszka GbR, Lustheide 85, 51427 Bergisch-Gladbach (hereinafter referred to as "DK71"), regulate the contractual relationship between DK71 and the respective Client of DK71 (hereinafter referred to as "Client").
Within the scope of its activities as an Influencer Marketing Agency, DK71 provides the Client with media services performed by third parties, namely users of social media platforms such as Facebook, Instagram, Tiktok, Twitch, Pinterest or YouTube (hereinafter "Influencers"). The specific content, scope and timing of the media services to be provided is stated in the order confirmation and/or in a separate contract concluded between DK71 and the Client, if applicable.
DK71 provides its services to the Client exclusively on the basis of these GTC.
1 Subject matter of the contract
1.1 When DK71 submits an offer to the Client and the Client accepts this offer, a contractual relationship is established between the Client and DK71. DK71 shall state the individual parameters of the contractual relationship in an order confirmation, which DK71 shall send to the Client. Further contractual elements are defined in these GTC, to which DK71 refers in the order confirmation.
1.2 The Client commissions DK71 to mediate the media services described in more detail in the order confirmation.
1.3 The media services are to be provided in accordance with the schedule defined in the order confirmation.
1.4 DK71 hereby draws the Client's attention to the fact that the procurement of the media services defined in more detail in the order confirmation may be delayed in whole or in part if one or more Influencers become temporarily sick. DK71 will inform about any deviations from the agreed schedule immediately after they become known. In this case, the provision of the service will be postponed to the next possible date.
1.5 For the brokerage and provision of the media services defined in the order confirmation, the Client shall owe payment of the fees for media services defined in the order confirmation.
1.6 Unless explicitly agreed otherwise and stated in the order confirmation, the client is obliged to pay 50 percent of the agreed fees no later than 10 days after order confirmation and the remaining 50 percent no later than 10 days after publication of the agreed content.
1.7 If the influencers to be commissioned have to travel in order to provide the services to be provided, the client shall bear the costs for the journey (" Deutsche Bahn" travel only 1st class) as well as for the overnight stay in the hotel (hotel category: at least 4 stars). DK71 will provide the client with a cost estimate for this, pay in advance and charge the travel costs plus a processing fee of 15 percent. The term of payment is 10 days.
1.8 Any fees charged by banks or other payment service providers incurred by the client when transferring the agreed fees are to be paid by the client. DK71 is in no case obliged to pay fees of banks or payment service providers.
1.9 DK71 may charge the Client an agency commission for the mediation of the media services described in the order confirmation and for the collection and evaluation of the results achieved - through the publication of the works described ibid. If applicable, the amount of this agency commission is quantified in the order confirmation; the payment terms defined in 1.5 and 1.6 shall apply.
1.10 If products are required for the provision of the media services defined in the order confirmation, the Client shall make these products available as a permanent loan. The products shall be shipped exclusively to DK71's business address stated in the order confirmation. DK71 shall distribute the products to the individual Influencers commissioned to provide the Media Services.
1.11 The provision of the service defined in this Agreement shall not give rise to any relationship under company law between the Parties.
2 Selection and commissioning of Influencers
2.1 DK71 offers the Client the opportunity to select Influencers from an Influencer Pool at the applicable fee rates without additional costs. In this Influencer Pool, DK71 bundles Influencers with whom DK71 works on a particularly regular basis and whom DK71 can therefore request and commission with the provision of media services without any additional organizational effort.
2.2 If the Client waives the right defined in 2.1, the Client may commission DK71 to search individually for suitable Influencers for the provision of the desired Media Services on behalf of the Client. In this search, DK71 will be guided by the Client's content specifications and the specified budget.
2.3 DK71 will propose suitable Influencers to the Client for the provision of the agreed Media Services. The Client is free to choose which of the proposed Influencers DK71 should commission to provide the Media Services.
2.4 The Client also has the right to urge DK71 not to commission any of the Influencers proposed by DK71.
3 Contents of the Media Services to be provided
3.1 The Client has the right to send a briefing document to the Influencers engaged by DK71 to provide the Media Services via DK71, with which the Client informs, for example, about essential product features and/or other unique selling points.
3.2 By sending the briefing, the Client assures DK71 that it holds all rights for the dissemination and sublicensing of the content in question and indemnifies DK71 and the Influencers commissioned with the provision of the Media Services against all claims of third parties, in particular those claims arising from an infringement of copyright law, trademark law, competition law, media law, tax law, social security law (including artists' social security law) or other contractual obligations of the Client.
3.3 By means of the briefing referred to in 3.1, the Client may specify which hashtags and/or links the Influencers are to use, how products or names are to be written or named and whether and - if so - which social media profiles are to be linked. If desired, the Client may also name products or brand names which the Influencers are expressly not to name in the Works they are commissioned to create and publish.
3.4 DK71 undertakes to ensure that the Influencers are guided by the briefing specified in 3.1 when providing the media services defined in the order confirmation. Furthermore, DK71 undertakes to ensure that the media services to be provided by the Influencer comply with the points defined in 3.2. In order to be able to fulfill this obligation, the Client must provide DK71 with all relevant information in full and no later than five (5) days after confirmation of the order.
3.5 The Client and DK71 agree that the Influencers shall present the product or service to be advertised as credibly as possible. This includes that the Influencers express their own subjective opinion, i.e. also address possible disadvantages and advantages of the product in comparison to similar products of other manufacturers, as long as this is not done in a derogatory manner or demonstrably negatively influences the marketing success in any other way.
3.6 The Client and DK71 agree that the Influencers, as creative and organizational providers of the media services described in more detail in the order confirmation, have the creative (final) decision-making authority over the specific artistic design of the services. The Influencers can thus decide in particular, but not exclusively, on the visual language, length and tonality of the works to be created in order to be able to provide them as authentically and credibly as possible in terms of advertising success.
3.7 The Client has the right to view all works to be provided prior to publication. For this purpose, DK71 will send the Client all works in good time before publication. If the service provided deviates significantly from the briefing, the client has the right to demand rectification. This right is limited to a maximum of one correction run. In order to make use of this right, the Client shall provide the respective Influencer via DK71 with a detailed defect report, including correction proposals. The Influencer is only obligated to comply with
these suggestions as long as they do not constitute an infringement of his/her artistic-creative freedom and/or freedom of expression.
4 Labeling as Advertising
4.1 Both parties agree that DK71 will instruct the respective Influencer to clearly and conspicuously label the deliverables described in more detail in the order confirmation as advertising. In this regard, the Influencer shall be guided by the requirements of the state media authorities and the applicable case law for the respective medium.
4.2 DK71 shall not assume any liability for missing or incorrect labeling, but shall take suitable precautions to ensure that the Influencer releases the Parties from any liability.
5 Fees and payment modalities
5.1 The Client is aware that the Influencers commissioned by DK71 at its request will charge a fee for the provision of the Media Services defined in the Order Confirmation. The total of these fees ("Media Volume") is to be taken from the order confirmation. The Client undertakes to pay all fees in full in accordance with the modalities defined in 1.5 and 1.6.
5.2 There shall be no claim to (partial) reimbursement of a fee paid to an Influencer even if the media service provided does not achieve the reach desired by the Client or if the Client's expectations of the advertising success deviate from the final result in other respects.
5.3 If a media service confirmed by an Influencer is not provided in whole or in part, the Client shall be entitled to full or partial reimbursement of the amounts already paid. DK71 shall assert these claims on behalf of the Client against the respective Influencer.
5.4 DK71 may charge the Client a fee in the form of an agency commission for arranging the media services and their evaluation. The amount of this agency commission can be found in the order confirmation. The terms of payment are described in 1.5 and 1.6.
5.5 Any fees for Influencer Sourcing stated in the order confirmation shall be deemed earned and due for payment at the moment DK71 submits proposals for suitable Influencers to the Client. The Client hereby expressly agrees to this provision.
5.6 All amounts quoted to the Client are exclusive of any applicable taxes that the Client is additionally required to pay. Where taxes are quoted, these are estimates and are subject to change. If payment is subject to tax withholding, Customer shall ensure that DK71 receives the amounts stated and agreed less any taxes withheld.
5.7 Invoices shall be paid without any set-off, deduction or retention.
5.8 The Client must raise objections no later than three working days after receipt of the invoice, otherwise the invoice shall be deemed accepted.
5.9 If DK71 agrees to an invoice correction and/or a new invoice at the Client's request, the payment terms and due date of the original invoice shall continue to apply.
5.10 DK71 shall invoice the Client in Euros. The Client shall pay in the same currency to the account specified by DK71 in the invoice. The Parties may agree in advance in writing on other invoicing modalities, e.g. invoicing to/from subsidiaries and affiliates of the Parties.
5.11 If the client commissions DK71 to provide services on a specific date or in a specific period, the client shall also be obliged to pay 50 per cent of the agreed fee in such cases where postponements result from reasons over which the client and/or its client(s) have direct or indirect influence. In the event of postponements, DK71 is no longer obliged to provide the service. DK71 also reserves the right to charge the client for expenses incurred by third parties in excess of the actual fee.
6. Non-payment of invoices by the client
6.1 If payment is not made by the invoice due date, DK71 may, without further notice and without prejudice to its statutory rights:
a. cease work, suspend or delay performance of the Services without penalty. During the period of suspension, the agreed fees shall continue to accrue and be payable by the Client;
b. cease to pay or pay third party costs and expenses without penalty. The Client shall be liable for all interest on late payments and for all damages and claims asserted by third parties as a result of DK71's exercise of this right;
c. charge interest on all past due amounts at the rate of nine percent (9%) per annum. Interest will be charged on all past due amounts from the date the invoice is due;
d. charge collection costs (including collection fees and attorneys' fees); and apply any deposit to past due invoices.
7. Transfer of rights
7.1 DK71 hereby notifies the Client that the Influencers commissioned with the provision of the media services defined in the order confirmation hold the sole copyright and right of use to all works created by them in the provision of the media services defined in the order confirmation.
7.2 If the Client wishes to reproduce, edit or publicly perform the works created by the respective Influencer, it may request a license for use from the respective Influencer via DK71, which may be payable separately.
7.3 The Influencer commissioned by DK71 has the right to refuse its consent to licensing in justified individual cases.
8.1 Client and DK71 agree to keep confidential and not to disclose or use for its own benefit or the benefit of any third party any information, documents or materials expressly
marked "confidential" or reasonably believed to be confidential relating to each other's products, business, customers, suppliers, employees or operations. This obligation shall continue for two (2) years after the expiration of this Agreement.
8.2 The confidentiality obligation under clause 9.1 shall not extend to information which is already publicly known, which becomes publicly known without either party having breached its obligations under this clause, or which was in the possession of either party prior to the conclusion of the Agreement, or to any disclosure required by applicable law.
8.3 The Client agrees to keep all information provided by DK71 regarding DK71's business, including clients, staff profiles, organizational structure, budgets and prices of individual Influencers, strictly confidential.
8.4 For the purpose of providing the Services or making proposals to the Client, DK71 may disclose confidential information to subcontractors, provided that the subcontractor enters into confidentiality obligations that are at least comparable to the terms contained in this Agreement.
9.1 The Client exclusively commissions DK71 with the procurement of the Media Services defined in the order confirmation.
9.2 DK71 is free to conclude contracts with other third parties in compliance with its obligations under this Agreement.
10.1 During the term of this Agreement and for a period of six (6) months after its termination, the Client shall not, directly or indirectly, employ, engage or entice away any employee of DK71, whether through employment or as an independent contractor, for itself or for any other party.
10.2 DK71 shall present its employees to the Client only for the purpose of providing services to the Client, and not to enable the Client to hire such employees. If Client hires or engages, directly or indirectly, a DK71 employee with whom Client has worked during the term of this Agreement or within six (6) months after the termination of the term of this Agreement, Client shall pay DK71 a referral fee equal to twelve (12) months of the employee's total compensation ("Referral Fee").
10.3 Client agrees that employing or contracting with a DK71 Employee to perform services similar to the Services is tantamount to contracting with DK71 as a temporary employment agency and that hiring DK71 Employees would result in substantial harm to DK71. The agency fee shall be paid within thirty (30) days of Client's employment of a
DK71 employee, and Client shall pay all attorneys' fees and costs associated with the enforcement of this clause.
11 Term and Termination
11.1 The contractual term of this Agreement ("Term") shall commence on the date of conclusion of the Agreement and shall end at the moment when the Influencer(s) has/have published the content to be provided by DK71.
11.2 If the Client commissions DK71 to individually search for suitable Influencers for the provision of the Media Services defined in the order confirmation and if the Client exercises its right defined in 2.4 not to commission any of the Influencers proposed by DK71, the exercise of this right shall be equivalent to an ordinary termination of the contractual relationship with immediate effect.
11.3 The Client may not reduce the scope of the media services defined in the order confirmation after conclusion of the contract, neither in terms of content nor with regard to the Influencers to be commissioned by DK71.
11.4 Either party may terminate the contract in writing if
a. the other party breaches the agreed payment terms and an invoice is not paid or becomes overdue (unless the invoice is the subject of a bona fide challenge by the other party) and it fails to pay within ten (10) days of receipt of written notice of the breach; or
b. the other party commits a serious or repeated breach of any of the terms or conditions of the Agreement and fails to cure the breach within thirty (30) days after receipt of a written demand; or
c. the other party resolves its dissolution, enters into a composition or arrangement with its creditors, files a petition for creditor protection, an administration or winding-up order is made, or an administrator or receiver is appointed for the other party; or
d. if the other party is unable to pay its debts, is otherwise insolvent (within the meaning of applicable Laws) or ceases or threatens to cease to carry on business or substantially all of its business.
11.5 DK71 may suspend or refuse to provide Services or terminate the contractual relationship resulting from this Agreement if Customer or its representatives make defamatory or abusive statements or act in a hostile or offensive manner toward DK71, its employees or its representatives.
11.6 Neither party shall have the right to terminate this contract before the end of its term as defined in 8.1 for any reason other than those defined in 8.2 and 8.4 f.
12 Liability and warranties
12.1 Nothing in this Agreement is intended to limit or restrict the liability of either party for death or personal injury due to the negligence of the other party, nor shall liability be limited or restricted where prohibited by applicable law.
12.2 DK71 shall be liable for all claims arising out of this Agreement only to the extent of its legally obligated business liability insurance.
12.3 Neither party shall be liable to the other party for loss of profits, loss of business or goodwill, loss of data, loss of use or business, loss of business opportunity, or any consequential, direct or indirect loss or damage.
12.4 Neither party shall be liable for any delay in performing any obligation or for any failure to perform any obligation if the delay or failure is due to circumstances beyond its control. Such circumstances include acts of God, terrorism, war, government or military actions, changes in laws or regulations, fire, extreme weather conditions, epidemics, explosions, accidents, riots, labor disputes, or cyber attacks.
12.5 There shall be no claim to uninterrupted availability at any time of the works created by the individual Influencer on behalf of the Client through the agency of DK71 and specified in more detail in the order confirmation. DK71 is not liable for technical failures on the part of third parties or the permanent availability of the platforms specified in the order confirmation on which the work created by the respective Influencer is published.
12.6 The Client shall independently take care of any obligation to pay contributions to the artists' social security fund.
12.7 DK71 reserves the right to withdraw from the contract if a delay in delivery or performance caused by unforeseen circumstances and obstacles, in particular force majeure, government measures, non-granting of official permits, labor disputes of any kind, sabotage, shortage of raw materials or delayed material deliveries through no fault of DK71, lasts longer than six weeks and DK71 is not responsible for this delay.
12.8 The Client shall indemnify and hold DK71 harmless against any liabilities, costs or expenses, including reasonable attorneys' fees, incurred by DK71 as a result of disputes with third parties relating to the Client's materials, the execution of specific written instructions from the Client and/or product and service liability issues relating to the Client's goods and services which DK71 may from time to time disseminate on behalf of the Client.
12.9 The terms and conditions of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, which are hereby excluded to the fullest extent permitted by law.
13 Press and public relations work
13.1 The Client grants DK71 permission:
a. name or list the Client as a client, along with its brand and logo, in DK71's promotional and marketing materials;
b. to display creative materials produced under this Agreement in DK71's physical and online portfolio; and
c. refer generally to the Services provided in case studies and in submissions for awards after completion of the respective Services.
13.2 Client agrees to act as a reference for DK71.
14 Personal data
15 Priority and legal force of this contract
15.1 Amendments to the agreement shall only be legally binding if they are agreed in writing.
15.2 Any general terms and conditions that the Client may have at its disposal shall expressly and at no time become part of the contractual relationship between DK71 and the Client.
16 Closing notes
16.1 This Agreement constitutes the entire agreement between DK71 and Client for the provision of Services and supersedes all prior and contemporaneous agreements
or understandings between the parties with respect to this Agreement, whether express or implied, written or oral.
16.2 Any agreement which, either by its terms or its intent, is intended to survive the end of the term of this Agreement shall remain in effect after the termination of the contractual relationship entered into hereunder.
16.3 The Principal shall designate a representative authorized to make day-to-day decisions related to the provision of Services. The Principal's consent may be given by e-mail.
16.4 If any provision of this Agreement is or becomes invalid, void or voidable, the validity of the remaining provisions shall not be affected. In place of the invalid/void provision, the parties shall agree on a provision that comes as close as possible to the purpose intended by the invalid/void provision. This shall also apply to the filling of any gaps in the contract.
16.5 Without prejudice to its other rights and remedies, an aggrieved party shall be entitled to obtain an injunction or demand specific performance or other equitable relief in the event of an actual or threatened breach of the provisions of the contract.
16.6 The place of jurisdiction for all disputes that may arise from the contract shall be Bergisch Gladbach.
Last Edit: July 11, 2022