By using the Services and accepting these Terms, you agree to comply with and be bound by these Terms in addition to COLLABARY’s other possible guidelines. Please read them carefully. This is a binding agreement between you and COLLABARY. COLLABARY reserves the right to modify the Terms, so please review the Terms periodically.
1 PROVISION OF SERVICES
COLLABARY acts as an intermediary platform to allow Brands to connect to Content creators. Specifically, it is intended to facilitate the provision of Services of the Content creators to the Brands. Such services might consist of brand promotion, posting in social media, reviews of products, or any other form of collaboration agreed between Brands and Content creators. COLLABARY does only act as a platform facilitating the connection between its members and is not involved in the agreements that Brands and Content creators might reach. Content creators are free to provide services to Brands or reject a collaboration. As a result, COLLABARY has no control over the quality, safety, morality or legality of any aspect of a possible collaboration, the ability of Content creators to provide services or the ability of Brands to pay for services.
By becoming a member of COLLABARY you will have access to numerous online tools, including the ability to manage your own profile, respond to messages from Brands and make use of the member support.
COLLABARY reserves the right to suspend or terminate a Content creator’s account for violations of any laws or COLLABARY Terms.
2 CONTENT CREATOR PROFILES AND OBLIGATIONS
Content creator Profiles: Content creator Profiles are the sites, within the Site, where information about the Content creator may be found. Such profiles may include, for example, pictures, older collaborations, information about Content creators activities, etc. Content creators are responsible for providing accurate information. Honesty is important to COLLABARY. We ask Content creators to represent themselves, their business, and their activities accordingly. The COLLABARY team may reach out to Content creator Profiles in violation of these Terms.
Member account: To be eligible to use the Services, you will need to register and, if accepted by COLLABARY, set up an account on the COLLABARY platform (“Account”). In order to register you will have to provide us with certain data and submit this data to us via the registration form on our platform. In case we accept your application you will receive an email from us confirming your acceptance. COLLABARY reserves to right to refuse any application within its sole discretion.
By creating an Account and logging on to our Services you consent to your personal data being transferred to our service provider Intercom who is located in the United States. More information on the Intercom Service can be found here: www.intercom.com/privacy
Age: Services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under the relevant applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. COLLABARY may, in its sole discretion, refuse to offer access to the Services to any person or entity and change its eligibility criteria at any time.
Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify COLLABARY of any unauthorized use of your password or any breach of security. You also agree that COLLABARY cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than COLLABARY without COLLABARY expresses written permission.
Information: You must keep your Content creator Profile up-to-date and accurate at all times, including a valid email address.
Account Transfer: You may not transfer or sell your Content creator Profile and username to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Access the Service: Since the Service is a beta-service and you are granted free access to it, COLLABARY reserves the right to stop rendering the services either to you or completely at any given time.
Right to Refuse Service: COLLABARY’s services are not available to temporarily or indefinitely suspended COLLABARY members. COLLABARY reserves the right, in COLLABARY sole discretion, to cancel unconfirmed or inactive accounts. COLLABARY reserves the right to refuse service to anyone, for any reason, at any time.
Right to Terminate: The Parties have the right to terminate this agreement at any given time with two weeks previous notice.
Fees and billing: Joining as a Member and setting up a Content creator Profile on COLLABARY is free.
Liability Limit: This clause prevails over all other clauses and sets forth our entire Liability, and your sole and exclusive remedies, for:
- c) we do not warrant and we exclude all liability in respect of the accuracy, completeness, fitness for purpose or legality of any information accessed using the site; and we exclude all liability of any kind for the transmission or the reception of or the failure to transmit or to receive any material of whatever form.
We shall have no liability for:
- a) loss of revenue;
- b) loss of actual or anticipated profits;
- c) loss of contracts;
- d) loss of the use of money;
- e) loss of anticipated savings;
- f) loss of business;
- g) loss of operation time;
- h) loss of opportunity;
- i) loss of goodwill;
- j) loss of reputation;
- k) loss of, damage to or corruption of data; or
- l) any indirect or consequential loss;
Indemnity: YOU AGREE TO INDEMNIFY AND HOLD COLLABARY AND (AS APPLICABLE) COLLABARY’s PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
No Guarantee: The Services and the Site are provided on an “as is” basis. Use of the Site is at your own risk. To the extent permitted by law, the Site and the Services are provided without warranties of any kind. To the extent permitted by law, in no event shall COLLABARY be liable for any damages for the loss of revenues, profits, goodwill or data resulting from the use of, unauthorized use of, or inability to use the Site.
If you are reasonably suspected or found to be engaging in any fraudulent transactions or unlawful activity using the Services, you also agree that COLLABARY may decline your transactions, place a hold on your funds, suspend or terminate your accounts with COLLABARY, and share your information with law enforcement.
4 PROHIBITED ACTIVITIES
You are solely responsible for your conduct and activities on and regarding to COLLABARY and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, “Content”) that you submit, post, and display on COLLABARY.
Restricted Activities: Your Content and your use of COLLABARY shall not:
Be false, inaccurate or misleading
Be fraudulent or involve the provision of services
Infringe upon any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy
Violate this Agreement, COLLABARY’s Terms, or community guidelines, or any applicable law, (including, but not limited to unfair competition, anti-discrimination or false advertising)
Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including COLLABARY staff or other Brands), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device
Be obscene or contain pornography, nudity, or adult material
Solicit business for, direct sales to, or promote any website, service, or entity outside of COLLABARY
5 INTELLECTUAL PROPERTY
If COLLABARY determines (in its sole discretion) that you are infringing third parties rights , you agree that, without limiting any of COLLABARY’s rights under this Agreement or at law, COLLABARY may (in its sole discretion) suspend or terminate your Member account.
COLLABARY grants you a non-exclusive, non-transferable, non-sublicensable, license to use the Services in accordance with the Terms. Without limiting any of those terms, you may not (a) modify, decompile or reverse engineer any software or hardware; (b) remove or alter any product identification, trademark, copyright or other notices; (c) use or allow the use of the Site by or for the benefit of third parties, including by renting, leasing or lending the Services; or (d) reproduce, sell or distribute the Site without COLLABARY’s permission.
By accepting these Terms the Content creator is also granting COLLABARY a royalty-free, unlimited, unrestricted license to use all the content you upload to your Content creator Profile (the “Content”), consisting in pictures, information, videos and other.
Content creator hereby grants COLLABARY the irrevocable, perpetual and unrestricted right and permission to use, re-use, publish, and republish the Content in whole or in part, or composite or distorted in character or form, without restriction as to changes or alterations, in conjunction with Content creator´s own or a fictitious name, or reproductions thereof in color or otherwise, and in any and all media now or hereafter known, specifically including but not limited to online media, print media for illustration, promotion, art, editorial, advertising, trade, or any other purpose whatsoever.
7 AVAILABILITY OF THE SITE, SECURITY AND ACCURACY
Whilst we endeavour to make the Site and the Services available 24 hours a day, we cannot be liable if for any reason the Site is unavailable for any time or for any period. We make no warranty that your access to the Services will be uninterrupted, timely or error-free. Due to the nature of the Internet, this cannot be guaranteed. In addition, we may occasionally need to carry out repairs, maintenance or introduce new facilities and functions.
Access to your account may be suspended or withdrawn to or from you personally or all users temporarily or permanently at any time and without notice. We may also impose restrictions on the length and manner of usage of any part of the Site for any reason. If we impose restrictions on you personally, you must not attempt to use the Site under any other name or user.
Applicable Law and Legal Disputes: These Terms shall be governed by and construed in accordance with German law. You submit to the exclusive jurisdiction of the German courts to settle any dispute which may arise under these Terms.
Severability: If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.
No Agency: You and COLLABARY are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
II. TERMS AND CONDITIONS
Collabary is a platform which enables fashions brands to get into contact with content creators in order to do joint marketing campaigns. The brand can discover content creators, create campaigns, manage the participation of content creators and measure the success of such campaigns.
1 SUBJECT MATTER AND CONCLUSION OF THE AGREEMENT
Subject matter of the following Terms and Condition is to provide a framework for the ordering of Influencer Services by the Brand and provision of such services by Collabary.
By signing up to app.collabary.com and also when ordering Influencer Services via the Collabary website, Brand agrees to be bound by the following Terms and Condition. In case Collabary and Brand have concluded a separate agreement with the same subject matter (usually referred to as Advertising Framework Agreement or AFA), the separate agreement will supersede the following Terms and Conditions in case of contradictions.
2 DEFINITIONS AND INTERPRETATION
Unless the context requires otherwise the following terms shall have the following meaning:
“Accepted Document” consists of the Brief, the Offer and the Terms and Conditions and is the legally binding contract between Brand and Collabary. The Accepted Document can be changed any time (even during a campaign) as long as both Parties consent to such a change.
“Affiliated Entity” has the meaning as per Sections 15 et subseq. of the German stock corporation law (Aktiengesetz).
“Brand” means the party to this Agreement which orders Influencer Services through the website app.collabary.com.
“Brand Account” means the Brand’s user account on app.collabary.com which the Brand can use to contact Content Creators, gather information on concluded Accepted Documents or the efficiency of campaigns, etc.
“Brand Sites” means the websites to which the Posts – to the extent relevant – are directly or indirectly linked and that are owned, operated, or controlled by Brand.
“Brief” / “Campaign Statement” means the document which gives general information about the Brand’s campaign plan, including the campaign story, mentions, etc. The Brief can be shared by the Brand with different Content Creators.
“Business Days” means Monday through Friday, except for days that are a German public holiday.
“Collabary” means Zalando Media Services GmbH, Tamara-Danz-Str. 1, 10243 Berlin, Germany.
“Content Creators” are natural persons or agencies representing such persons who have a social media account, website, blog, etc and who promote products on their online premises.
“Confidential Information” means all information disclosed by one Party to the other, irrespective in which form, which is either marked as confidential or reasonably to be considered confidential taking into account its nature and the circumstances of its disclosure. Confidential Information comprises in particular any details about the Influencer Services not publicly known.
“Influencer Services” means the services which are rendered by Collabary according to these Terms and Conditions and the applicable Accepted Document.
“Medium” means the relevant channel on which the Post Material shall be delivered (e.g. Blog, Instagram Profile, facebook, etc.).
“Offer” means the final contract detail which were negotiated between the Brand and the Content Creator. The Offer includes the specific services to be rendered and the amount the Content Creator will receive from Collabary.
“Party” / “Parties” refers to either Collabary or Brand or to both.
“Post” means the display of the Post Material in the relevant Medium.
“Post Content” means the content (including texts, images, graphics, etc.) provided by a Content Creator to Collabary in order for Collabary to fulfill the relevant Accepted Document.
“Provided Material” refers to the following case: Brand may provide material (including all text, graphics, logos, URLs, (if necessary) websites to which Post Content will link but also products) necessary for the Content Creator to produce the Post Content in accordance with the Accepted Document (‘Provided Material’).
“Start (Date)” / “End (Date)” means the dates upon which the Post should go live as specified in the Accepted Document (cf. column Runtime there) and the date until when the campaign is running.
“Terms and Conditions” means this document.
3 TERMS AND CONDITIONS, CONTRACT, PARTIES TO THE CONTRACT
3.1 These Terms and Conditions constitute the framework for the purchase of Influencer Services by the Brand from Collabary. Obligations to provide Influencer Services or pay remuneration for such are not established by these Terms and Conditions itself, but only upon conclusion of a single contract by virtue of Accepted Documents.
3.2 In order to conclude and fulfill a single contract via app.collabary.com, the following steps are necessary:
- Brand will fill out a Brief which contains, among others, information on the Brand, the image requirements, hashtags, mentions, campaign goals, usage rights with regard to the Influencer Services rendered (usage rights may not be exclusive and/or indefinite) and Start Date / End Date.
- Brand can then directly contact Content Creators via app.collabary.com and make the Brief available to specific Content Creators.
- Brand and the respective Content Creator can then negotiate the Influencer Services to be rendered as well as the monetary compensation for the Content Creator.
- After Brand and Content Creator have settled on the contractual issues, Brand will send Content Creator an Offer via app.collabary.com and Content Creator can accept this offer for Collabary by clicking the ‘Accept’-Button.
- After this acceptance, Brief, Offer and these Terms and Conditions will be considered the Accepted Document.
- The details of the Accepted Document as well as the remuneration payable by Brand to Collabary (amount payable by Collabary to Content Creator plus Commission Fee) can be accessed via the Brand account on app.collabary.com.
- The respective Accepted Document is deemed to be fulfilled, on the day the Content Creator delivers the Post.
- The Brand will receive a URL/Link to the Post.
3.3 The Accepted Document can be changed by the Parties anytime with mutual consent. However, Brand is allowed to unilaterally make minor adjustments to the Brief.
3.4 For purpose of clarification, the Content Creator will not be part of the contract concluded between Collabary and Brand. The obligations of the Accepted Document are solely between Collabary and Brand. Content Creator may only legally bind Collabary in so far as the Collabary platform is used and the above outlined processes as well as the regulations of these Terms and Conditions are upheld.
4 SERVICES PROVIDED BY COLLABARY
4.1 Collabary is responsible for providing the Collabary website (including its functionalities) and accounting services. Additionally, Collabary provides Brand with access to the Brand Account (including provision of login data). The Brand is aware, that the Collabary website or parts of the website may occasionally be temporarily unavailable due to maintenance or other technical reasons.
4.2 In connection and in line with the final Accepted Document, Collabary procures Influencer Services from the Content Creator(s) who accepted the final Accepted Document.
4.3 Collabary will not verify whether a Post is in line with the respective Accepted Document and whether the Post Content is in accordance with Brand’s internal rules on advertising. To the extent the Accepted Document does not provide for specific requirements which are necessary for the fulfillment of the contract Collabary shall decide in its reasonable discretion on the details of the Post. Collabary shall not be obliged to serve any Post to the extent this would lead to Collabary or a Content Creator being in breach of applicable law.
4.4 The functionalities of the Collabary website will be continuously improved by Collabary. Thus, some functions may be modified. The Brand consents to such modification in so far as these do not lead to significant change of Collabary’s obligations and in so far as Collabary takes into consideration the Brand’s interest when modifying the service.
5 POST CONTENT
5.1 Brand will be fully liable for Provided Material and the Provided Material shall be provided in a common format and be in line with current market standards. Provided Material will not be returned to Brand (independent of the format of the Provided Material). The Brand grants to Collabary a non-exclusive, transferable, fully paid-up, worldwide and unlimited right and license to use (including to copy, modify, translate, make available, assign and sublicense to its affiliates, Content Creators or subcontractors) Provided Material, solely as is reasonably necessary for Collabary to perform its obligations and exercise its rights relating to the performance of the relevant Accepted Document.
5.2 Brand shall not include or use any mechanism or functionality in connection with the Provided Material that tracks or collects information regarding users to whom the Post is displayed without Collabary’s prior written approval.
5.3 Brand ensures (“stellt sicher”) that Provided Material (i) will not violate the patent, trademark, trade names, service marks, copyright or other intellectual property or proprietary rights (including domain names) or any other rights (including the rights to privacy, confidentiality and publicity) of any third party ; (ii) the materials and the display of Provided Material as contemplated in the Accepted Document will not be false or misleading and will not constitute an unfair competition practice or unfair commercial practice; (iii) Provided Material will comply with all applicable laws; (iv) Provided Material does not contain any material which is libelous, slanderous, fraudulent or defamatory; (v) Provided Material will not contain nor transmit any malware, viruses, worms, Trojan horses, adware, spyware, or other harmful code or programs; and (vi) Provided Material will contain all legally required information.
5.4 Collabary is not obliged to and will generally not review the Posts (including compliance with applicable law). Without limitation of the foregoing, Collabary may, however, reject or at any time remove Post or any portion thereof if: (a) it is directed to do so by any law enforcement agency, court, government agency or industry organization; or (b) such Post, or any portion thereof (including the advertised product/service) violates any applicable law.
5.5 Brand shall indemnify Collabary and Content Creators against all claims made by third parties due to the use of the Provided Material in performing its obligations under any Accepted Document and compensate Collabary and Content Creators for all costs (including reasonable attorney´s fees) and damages arising in connection with such claim or alleged claim, unless the claim is not due to a culpable act or omission of the Brand. The Brand must endeavour to support Collabary and the Content Creator to the best of its ability in conducting its defense against any such claim.
5.6 Independent of whether usage rights are granted within the Brief, Brand is allowed to repost Posts on the respective Brand social media account.
6 REMUNERATION AND INVOICING
6.1 Brand shall pay to Collabary the remuneration for the Influencer Services as set forth in the relevant Accepted Document and the Brand account. The remuneration to be paid to Collabary is calculated by the sum of respective amount stated in Accepted Document and the commission fee stated in the Brand account. The full amount to be paid per each Accepted Document by Brand can be seen in the Brand Account.
6.2 Invoicing will be done by Collabary once the Influencer Services were rendered (e.g. day of the Post). Payments are due 14 days upon issuance of the relevant invoice by Collabary and shall be paid to the bank account set forth in the invoice.
6.3 Brand shall raise any objections against an invoice within 14 days upon issuance of the invoice, for any objections raised thereafter the burden of proof shall be with the Brand.
6.4 Unless agreed otherwise, the prices do not include the applicable value-added tax. Unless agreed otherwise the Brand is responsible for paying all taxes, customs and similar charges related to the Influencer Services, except for value-added taxes (VAT), sales taxes, transaction taxes or the like.
7 TERM AND TERMINATION
7.1 Any single contracts concluded via app.collabary.com enter into force upon acceptance as set forth in Section 3 and have the term as defined in the Accepted Document. If no term is defined in the Accepted Document, it ends automatically upon (i) 12 months after its conclusion, or (ii) after all Influencer Services specified in the Accepted Document are delivered, or (iii) the End Date for all Influencer Services under the Accepted Document is reached, whichever occurs earlier.
7.2 Rights of the Parties to terminate any Accepted Document for cause remain unaffected. Good cause for Collabary shall be deemed to exist in particular if the Brand fails to pay an outstanding invoice or a substantial portion thereof within 30 days after the invoice has been issued.
7.3 Collabary may terminate any Accepted Document concluded under these terms with immediate effect in case the Content Creator terminates the contract with Collabary.
7.4 Collabary may terminate a contract, if Brand fails to provide Provided Material in full and in full compliance with the requirements set forth in these terms or the Accepted Document (in particular pursuant to Section 5) in due time or as otherwise specified in the Accepted Document.
8.1 The Parties shall be liable to each other only for damage caused by an intentional or grossly negligent breach of duty by the other Party and/or the other Party´s employees, statutory representatives or auxiliary persons employed to perform duties under the respective Accepted Documents and these Terms and Conditions. Where a claim for damages by one Party against the other Party is based on simple negligence, the breaching Party shall only be liable for
- a) death, personal injury or damage to health or,
- b) where the duty breached is an essential contractual obligation on compliance with which the other Party is usually and legitimately entitled to rely on as a precondition for due performance of the respective OC, foreseeable damage typical of such contracts.
8.2 Nothing in this Section 9 shall limit or be construed in a way to limit the liability of the Parties (i) for intent; (ii) for any guarantee (Garantie); (iii) for indemnification claims as per Section 5.5; or (iv) under the product liability act (Produkthaftungsgesetz).
9.1 Each Party (hereinafter the “Receiving Party”) agrees to keep all Confidential Information received from the other party (hereinafter the “Disclosing Party”) in whatever form as strictly confidential and must not disclose it to third parties without the prior written consent of the Disclosing Party. Confidential Information must not be used by the Receiving Party for any purpose other than in connection with the purposes of these Terms and Conditions and/or the Accepted Documents. For the avoidance of doubt: Collabary may disclose Confidential Information to its Subcontractors and Content Creators to the extent reasonably necessary to provide the Influencer Services.
The foregoing obligations do not apply to any Confidential Information which: (i) is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the Receiving Party; (ii) was known to the Receiving Party prior to disclosure by the Disclosing Party as proven by the contemporaneous written records of the Receiving Party; (iii) is disclosed to the Receiving Party by a third party who did not obtain such Confidential Information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligation; (iv) is at any time independently developed by the Receiving Party as proven by its contemporaneous written records; (v) is expressly authorized in writing by the Disclosing Party; or (vi) is required by law, court order or a governmental agency to be disclosed (in which case the Receiving Party will give the Disclosing Party as much notice thereof as reasonably practicable and which will be done subject to confidentiality protection to the extent reasonably available).
9.2 Information is deemed to be the property of the Disclosing Party, and the Receiving Party will, upon receipt of a written request from the Disclosing Party, return all Confidential Information received in tangible form to the Disclosing Party or destroy all such Confidential Information and all copies thereof or documents containing Confidential Information, unless required otherwise by applicable law. The preceding sentence shall not apply to the extent the Receiving Party requires the Confidential Information for fulfillment of the Accepted Documents.
9.3 Each Party agrees to limit access to Confidential Information to those of its employees, representatives, contractors or advisors to whom such access is reasonably necessary or appropriate for the proper performance of obligations.
9.4 The provisions of this section 9 shall be binding for the Parties for the term of all Accepted Documents concluded hereunder and five (5) years after (i) the effective date of the termination of a Accepted Documents and /or these Terms and Conditions, or (ii) the complete fulfillment of all Accepted Documents concluded hereunder, whichever occurs later.
10.1 Collabary may use Brand’s name, logo and trademarks on the Collabary website in order to market the Collabary platform and the brands participating on the platform.
10.2 Collabary may also conduct case studies with specific Brands. However, such case studies may only publicised if Brand consented to this.
11.1 There are no oral agreements between the Parties with regard to the subject of these Terms and Conditions. Any changes or supplements to these Terms and Conditions or an Accepted Document require written form. The same applies to any waiver of this written form requirement.
11.2 The Brand may only set off claims and exercise rights to withhold based on claims which are undisputed or have been upheld by a final court decision.
11.3 In the event of ambiguities or contradictions among the individual contractual documents, these Terms and Conditions shall control over the Accepted Document, unless specifically set forth otherwise in these Terms and Conditions.
11.5 If any provisions of the Accepted Document are or become invalid or unenforceable, the validity of the remaining provisions is not affected. Any invalid or unenforceable provision is deemed replaced by a valid provision which comes closest to the invalid or unenforceable provision. The same applies for gaps.
11.6 This Agreement is governed by and construed in accordance with the laws of Germany without reference to its conflict of law provisions. The UN convention on contracts on the international sale of goods (CISG) is excluded. Exclusive venue for all disputes arising out of or in relation with these Terms and Conditions or any Accepted Document shall be the competent court of Berlin.
11.7 If the German translation of a term is given in brackets the legal meaning of the German term shall prevail.