I. TERMS AND CONDITIONS FOR BRANDS
PREAMBLE
Collabary is a platform which enables brands to get into contact with content creators to do joint commercial or marketing campaigns as well as to create, publish and manage campaigns and content together.
1 DEFINITIONS AND INTERPRETATION
The following terms shall have the following meaning:
“Brand” means the party which may order Services from Collabary.
“Brand Account” means the Brand’s user account on app.collabary.com.
“Brand Material” means any content provided by Brand to Collabary for the fulfillment of the Services.
“Brief” means the document which gives general information about the Brand’s campaign plan, including the campaign story, mentions, etc.
“Budget” means the total remuneration due to Content Creator as defined in the Offer.
“Channel” means the relevant channel on which the Post Content shall be displayed (e.g. Blog, Instagram Profile, Facebook, etc.).
“Contract” has the meaning set out in Section 3.1.
“Commission Fee” means a certain percentage of the Budget as determined in the Brand Account.
“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 considering its nature and the circumstances of its disclosure. Confidential Information comprises any details about the Services not publicly known.
“Content Creator” means natural persons or agencies representing such persons who are users of social media and/or who run a blog or website and who have access to a large audience and can persuade others by their authenticity and reach.
“Initial Subscription Term” has the meaning set out in Section 7.1.
“Offer” means the details of services to be rendered by the Content Creator based on the Brief in return for the Budget defined herein.
“Party” / “Parties” refers to either Collabary or Brand or both.
“Post” means the display of the Post Content in the relevant Channel.
“Post Content” means the marketing material and artwork to be provided by Content Creator and hosted by Brand or Content Creator in connection with the Services in the relevant Channel.
“Preliminary Budget” means a non-binding indication of the Budget set out in the Brief.
“Renewal Subscription Term” has the meaning set out in Section 7.1.
“Services” means, individually and collectively, the provision of Collabary´s website to Brands (including its functionalities), the access to the Brand Account (including provision of login data), a portfolio and a search functionality of Content Creators as well as other services as set out in the relevant Contract.
“Subscription” means the Initial Subscription Term and each Renewal Subscription Term (if applicable).
“Subscription Fee” means the monthly fee payable by Brand in the amount as set out in the Brand Account.
“Subscription Term” has the meaning set out in Section 7.1.
2 SUBJECT MATTER
2.1. Subject matter of these Terms and Conditions (“T&Cs”) is to provide a framework for the purchasing of Services by Brand from Collabary.
2.2. Obligations to provide specific Services (e. g. specific outputs) are not established by these T&Cs itself, but only upon (i) Subscription and/or (ii) agreement on each single campaign through the relevant Contract.
3 CONCLUSION AND FULFILLMENT OF CONTRACT
3.1. To conclude a Contract with Collabary:
3.2. Collabary offers the Services at a Subscription Fee and, if a Contract has been concluded, a Commission Fee. The details of the Contract, the Subscription Fee and the Commission Fee can be accessed by the Brand via the Brand Account.
3.3. The respective Contract is deemed to be fulfilled on the day the Post is published. The Brand will receive a URL/Link to the Post. The non-receipt of the URL/Link does not affect the fulfillment of the Contract.
3.4. For purpose of clarification, the Content Creator will not be part of the Contract concluded between Collabary and Brand. The obligations according to the Contract only apply between Collabary and the Brand.
4. ADDITIONAL SERVICES PROVIDED BY COLLABARY
Following separate agreement or at Collabary´s sole discretion without establishing a legal claim of any kind, Collabary also provides reports about the performance of a Content Creator and the Services in the format and frequency as agreed or as Collabary deems fit.
5 POST CONTENT
5.1. Brand will be fully liable for Brand Material. The Brand Material shall be provided in a common format and be in line with current market standards. Brand Material will not be returned to Brand (independent of the format of the Brand 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) Brand Material, solely as is reasonably necessary for Collabary to perform its obligations and exercise its rights relating to the performance of the relevant Services and/or Contract.
5.2. Brand shall not include or use any mechanism or functionality in connection with the Brand Material that tracks or collects information regarding users to whom the Post is displayed without Collabary’s prior written consent.
5.3. Brand ensures that (i) Brand Material will not violate the trademark, trade names, 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 Brand Material as contemplated in the Contract will not be false or misleading and will not constitute an unfair competition practice or unfair commercial practice; (iii) Brand Material will comply with all applicable laws; (iv) Brand Material does not contain any material which is libelous, slanderous, fraudulent or defamatory; (v) Brand Material will not contain nor transmit any malware, viruses, worms, Trojan horses, adware, spyware, or other harmful code or programs; (vi) Brand Material will contain all legally required information, and (vii) Brand Material will contain all other necessary information which has to be given according to platform guidelines and/or regulations on which Brand elected to advertise (e.g. Facebook, Pinterest, etc.).
5.4. Collabary is not obliged to and will not review the Post Content (including compliance with applicable law and platform guidelines and regulations). Without limitation to the foregoing, Collabary may, however, reject or at any time remove Post or any portion thereof if: (i) it is directed to do so by any law enforcement authority, court, government authority or industry organization; or (ii) such Post, or any portion thereof (including the advertised product/service) violates any applicable law and/or platform guidelines and/or regulations.
5.5. Collabary will not verify whether a Post Content is in line with the respective Contract and whether the Post Content is in accordance with Brand’s internal rules, such as rules on advertising. 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.
5.6. Brand shall indemnify and hold harmless Collabary against all claims made by third parties in connection with the Brand Material and compensate Collabary for all costs (including reasonable attorney´s fees) and damages arising in connection with such claim or alleged claim.
6 REMUNERATION AND INVOICING
6.1. Invoicing of the Subscription Fee will be done by Collabary on a monthly basis. If the Service has not been provided for an entire month, the Subscription Fee shall be reduced pro rata temporis. Invoicing of the Commission Fee will be done by Collabary upon completion of the Services as set out in the relevant Contract (e.g. day of Post). Brand shall also be invoiced for the budget it is committing to for the Services as set out in the relevant contract via the platform. The Budget and Commission Payments are due 14 days upon issuance of the relevant invoice by Collabary and shall be paid by Brand to the bank account set forth in the invoice.
6.2. Brand shall raise any objections against an invoice within 14 days upon issuance of the same.
6.3. Unless agreed otherwise, the prices do not include the applicable value-added tax. The VAT invoicing takes place on the basis of the data and information provided by the Brand. U The Brand is responsible for paying all taxes, customs and similar charges related to the Services. Collabary reserves the right to withhold any taxes that are due from the payments done to the Brand based on applicable provisions of law.
7 TERM AND TERMINATION
7.1. The Subscription starts at the day (0:01am) the Brand has registered a Brand Account with Collabary and shall have a term of 12 months (“Initial Subscription Term”) and thereafter shall be renewed in each case for a further period of 12 months (each a “Renewal Subscription Term”) unless either Party gives notice at least 2 months prior to the end of the Initial Subscription Term or any Renewal Subscription Term.
7.2. Any Contracts have the term as defined therein. If no term is defined, the Contract ends automatically upon (i) 12 months after its conclusion, or (ii) after all Services specified in the Contract are delivered, or (iii) the End Date for all Services under the Contract is reached, whichever occurs later.
7.3. Rights of the Parties to terminate any Contract for cause remain unaffected. Good cause for Collabary shall be deemed to exist in particular (i) if the Brand fails to pay an outstanding invoice or a substantial portion thereof within 30 days after the invoice has been issued; (ii) if Brand fails to provide Brand Material in full and in full compliance with the requirements set forth in the T&Cs and the Contract (in particular pursuant to Section 5 of these T&Cs) in due time or as otherwise specified in the Contract.
8 LIABILITY
8.1. Unless otherwise set out in these T&C, 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 the Services and/or any other duties under the Contract. Where a claim for damages by one Party against the other Party is based on simple negligence, the breaching Party shall only be liable
(a) for death, personal injury or damage to health or,
(b) in the event of a breach of material contractual obligations (cardinal duty), the fulfilment of which is essential for due performance of the Services and/or the due implementation of the Contract and on which the Brand can reasonably expect to be able to rely, for the foreseeable damage typical of such type of contracts. Nothing in this Section 8 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; or (iv) under the product liability act (Produkthaftungsgesetz).
8.2. Collabary is not liable for Acts of God, which make the Services and or the duties covered by the Contract impossible or render the due performance of the Contract substantially more difficult and/or temporarily impede its proper performance. As an Act of God, all circumstances are included which are independent of the will and control of the contractual parties, such as war and other military conflicts, natural disasters, strikes, labor or material shortage, Internet failures or communications lines failures or other serious and/or unforeseeable circumstances of no fault of the contractual parties. A circumstance is seen as an Act of God, only if it occurs after the Subscription and/or conclusion of the Contract, as applicable.
8.3. Collabary shall not be liable for errors in the transmission of Brand Material which are caused outside of Collabary´s sphere of responsibility or control.
8.4. In case the Contract provides for an obligation to pay liquidated damages, it is understood that the obligated Party shall in each case be entitled to demonstrate that the claiming Party’s actual damages are lower.
9 CONFIDENTIALITY
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 T&Cs, the Services and/or the Contracts. For the avoidance of doubt: Collabary may disclose Confidential Information to its subcontractors and Content Creators to the extent reasonably necessary to provide the Services.
9.2. 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).
9.3. 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 Services and/or Contracts.
9.4. Each Party agrees to limit access to Confidential Information to those of its employees, representatives, contractors or advisers to whom such access is reasonably necessary or appropriate for the proper performance of obligations.
9.5. The provisions of this Section 9 shall be binding for the Parties for the Subscription Term or the term of a Contract, whichever occurs later, and five (5) years after (i) the effective date of the termination of a Contract or (ii) the end of the Subscription Term, whichever occurs later.
10 REFERENCE
10.1. Collabary may use Brand’s name, logo and trademarks on App.collabary.com and the Collabary website and social media channels as well as in Collabary´s affiliates´ websites and social media channels.
10.2. Collabary may also conduct case studies with specific Brands. However, such case studies may only be published with Brand prior consent.
11 MISCELLANEOUS
11.1. Any changes or supplements to these T&Cs or a Contract 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, the Contract shall take precedence over the T&Cs unless specifically set forth otherwise in the Contract.
11.4. If any provisions of the Contract or the T&Cs 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.
11.5. These T&Cs and the Contract are 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 T&Cs or any Contract shall be the competent court of Berlin.
11.6. If the German translation of a term is given in brackets, the legal meaning of the German term shall prevail.
II. TERMS AND CONDITIONS FOR CONTENT CREATORS
PREAMBLE
Collabary is a platform which enables lifestyle brands to get into contact with content creators in order to do joint marketing campaigns. The content creators can be discovered by brands, create and manage campaigns together with brands, create and publish content and may receive remuneration from and via Collabary.
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 Collabary from Content Creator and the provision of such services by Content Creator to Collabary.
By signing up to app.collabary.com and also when rendering Influencer Services or concluding contracts via the Collabary website, Content Creator agrees to be bound by the following Terms and Condition. In case Collabary and Content Creator have concluded a separate agreement with the same subject matter, the separate agreement will supersede the following Terms and Conditions in case of contradictions.
These Terms and Conditions apply to two different kinds of services: self-service (where Brands manage Influencer Services for themselves) and managed service (where this is done by Collabary for the Brand). Whenever the expression “Brand/Collabary” is used herein, “Brand” shall apply to the self-service model whereas “Collabary” shall apply to the managed service model.
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 Content Creator and Collabary. The Accepted Document can be subject to change 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 Companies Act (Aktiengesetz).
“Brand” means a legal entity ordering Collabary Services.
“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, apps or services to which the Posts – to the extent relevant – are directly or indirectly linked and that are owned, operated, or controlled by Brand.
“Brief” means the document which gives general and individual information about the Brand’s campaign plan, including the campaign story, mentions, etc. The Brief can be shared by the Brand /or Collabary for the Brand with different Content Creators.
“Business Days” means Monday through Friday, except for days that are public holidays in Berlin, Germany.
“Campaign” is defined by start and end date for agreed deliverables as stated in the Accepted Document
“Campaign Material” means the content (including texts, images, graphics, etc.) of the Influencer Services provided by a Content Creator in order to fulfill the relevant Accepted Document.
“Collabary” means Zalando Marketing Services GmbH, Tamara-Danz-Str. 1, 10243 Berlin, Germany.
“Collabary Services” means the services Collabary renders to Brand, including the Influencer Services rendered by Content Creator to Collabary.
“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.
“Content Creator Account” means the Content Creator’s user account on app.collabary.com which the Content Creator can use to stay in contact with Brands, gather information on concluded Accepted Documents, etc.
“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 Content Creator to Collabary according to these Terms and Conditions and the applicable Accepted Document.
“Medium” means the relevant channel on which the Post Content/Campaign Material shall be delivered (e.g. Blog, Instagram Profile, facebook, etc.).
“Offer” means the final contract detail which were negotiated between the Brand/Collabary and the Content Creator. The Offer includes the specific services to be rendered and the remuneration the Content Creator will receive from Collabary.
“Party” / “Parties” refers to either Collabary, Content Creator or to both.
“Post” means the display of the Post Content in the relevant Medium.
“Post Content” means the content (including texts, images, graphics, etc.) of the Influencer Services provided by a Content Creator in order 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/Campaign should go live and the date until when the campaign is running both as specified in the Accepted Document.
“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 Collabary from Content Creator. 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:
3.3. The Accepted Document can be subject to change by the Parties anytime with mutual consent. However, Collabary and Brand in Collabary’s name is allowed to unilaterally make minor adjustments to the Brief.
3.4. For purpose of clarification, the Brand will not be part of the contract concluded between Collabary and Content Creator. The obligations of the Accepted Document are solely between Collabary and Content Creator. Brand 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. If this is not the case, then Content Creator may not reasonably rely on Brand acting on Collabary’s behalf. Additionally, Collabary is obliged to directly pay to Content Creator the remuneration.
4 SERVICES PROVIDED BY COLLABARY
4.1. Collabary is responsible for providing app.collabary.com (including its functionalities) and accounting services. Additionally, Collabary provides Content Creator with access to the Content Creator Account (including provision of login data) and the technical functionalities which enables Content Creator to draft,access and accept the Accepted Document. Content Creator 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. Additionally, Content Creator is also aware, that Collabary may compile a comprehensive report about Content Creator’s performance as well as the overall performance of Brands’ campaigns and such report may be shared with the Brand.
4.3. Brand/Collabary may 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 (if such rules were made available to Content Creator in the course of the drafting of the Accepting Documents). In case a Post is not in line with the aforementioned documents, Brand/Collabary may reject the Post and decline to remunerate the Content Creator. Additionally, Brand/Collabary is also under no obligation to remunerate the Content Creator, in case the Post is in breach of applicable law.
4.4. To the extent the Accepted Document does not provide for specific requirements which are necessary for the fulfillment of the contract Brand/Collabary shall decide in its reasonable discretion on the details of the Post/Campaign Material.
4.5. The functionalities of the Collabary platform will be continuously improved by Collabary. Thus, some functions may be modified. The Content Creator 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 Content Creator’s interest when modifying the service.
5 POST CONTENT, CAMPAIGN MATERIAL AND PROVIDED MATERIAL
5.1. Content Creator ensures that (i) Post Content 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 Post Content 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) Post Content will comply with all applicable laws; (iv) Post Content does not contain any material which is libelous, slanderous, fraudulent or defamatory; (v) Post Content will not contain nor transmit any malware, viruses, worms, Trojan horses, adware, spyware, or other harmful code or programs; and (vi) Post Content will contain all legally required information, including, if legally necessary, disclaimers with regard to the commercial nature of the Post.
5.2. The Content Creator shall indemnify Collabary and Brand against all claims made by third parties due to the use or publication of the Post Content and compensate Collabary and Brand 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 Content Creator. The Content Creator must endeavour to support Collabary and the Brand to the best of its ability in conducting its defense against any such claim.
5.3. 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: (i) it is directed to do so by any law enforcement agency, court, government agency or industry organization; (ii) such Post, or any portion thereof (including the advertised product/service) violates any applicable law; or (iii) such Post is not in line with the respective Accepted Document or with Brand’s internal rules on advertising (if such rules were made available to Content Creator in the course of the drafting of the Accepting Documents).
In case a Post is rejected or removed by Collabary due to the foregoing reasons, Collabary will not be obliged to remunerate the Content Creator.
5.4. In case Brand provides Content Creator with Provided Material, Content Creator may only use Provided Material, solely as is reasonably necessary for the Content Creator to perform its obligations and exercise its rights relating to the performance of the relevant Accepted Document.
5.5. Independent of whether usage rights are granted within the Brief, Content Creator grants to Collabary and the respective Brand to repost Post on Collabary’s and Brand’s respective social media account as well as to publish the Campaign Material according and to the extent of the Campaign purposes.
6 REMUNERATION AND INVOICING
6.1. Collabary shall pay to Content Creator the remuneration for the Influencer Services as set forth in the relevant Accepted Documents and the Content Creator Account.
6.2. Payment will be done for the month in which Content Creator has delivered his/her services according to the Brief until the 10th of the current month, if services have been delivered later than 10th of the month, payments will be done the subsequent month. Until the end of the month, Collabary will send a self-billed invoice to the Content Creator which indicates the amount payable by Collabary within the next 14 days of the date of the self-billed invoice. The amount will be paid by Collabary via bank transfer to the bank account indicated by the Content Creator.
6.3. Content Creator shall raise any objections against a self-billed invoice within 14 days upon issuance of the self-billed invoice, for any objections raised thereafter the burden of proof shall be with the Content Creator.
6.4. Unless agreed otherwise, the prices do not include the applicable value-added tax. Content Creator is solely liable for calculating and paying value added taxes, transaction tax or any such other taxes due from the service rendered to Collabary, unless Collabary is obliged to apply any reverse charge mechanism based on the provisions of law. Collabary reserves the right to withhold any taxes, that are due from the payments done to Content Creator, based on the relevant provisions of law.
6.5. Content Creator is liable to pay any other applicable taxes, such as income tax or the like, as recipient of the remuneration for the services rendered.
6.6. In order to be eligible to receive remuneration, Content Creator has to provide all relevant data for billing purposes to Collabary. If any changes to the data occurs, Content Creator will inform Collabary about such changes unrequested and without undue delay.
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 and published, or (iii) the End Date for all Influencer Services (including Usage Rights and buyouts) under the Accepted Document is reached, whichever occurs earlier.
7.2. The right of the Parties to terminate any Accepted Document for cause remains unaffected.
7.3. Collabary may terminate any Accepted Document concluded under these terms with immediate effect in case the Brand terminates the respective contract with Collabary.
7.4. Collabary may terminate a contract, if Content Creator fails to provide the Post Content or to render services as agreed upon in the Brief for Campaign 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, unless such termination would (in Collabary’s reasonable discretion) be considered disproportionate to the Content Creator’s failure.
8 LIABILITY
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
8.2. Nothing in this Section 8 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 5.2; or (iv) under the product liability act (Produkthaftungsgesetz).
9 CONFIDENTIALITY
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 fulfilment 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. 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.
10 REFERENCE
10.1. Collabary may use Content Creator’s name, logo and trademarks on the Collabary App, website in order to market the Collabary App and platform and the brands participating on the platform as well as for corporate communication and documentation purposes (both online and offline which shall include (but not limited) annual company reports, corporate portfolio or corporate presentations, annual meetings, corporate website, moving and still images).
10.2. Collabary may also conduct case studies with specific Content Creators. However, such case studies may only published if Content Creator consented to this.
11 MISCELLANEOUS
11.1. There are no oral agreements between the Parties with regard to the subject of these Terms and Conditions. Collabary may, at its own reasonable discretion, choose to alter or amend the terms of these T&Cs (individually and collectively, the “Modification”). Such Modification become legally binding if
11.2. The Content Creator 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.
11.4. 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.
11.5. 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.
11.6. If the German translation of a term is given in brackets the legal meaning of the German term shall prevail.