GENERAL TERMS AND CONDITIONS OF FREACHLY GMBH (last modified: 07.12.2018)

The following General Terms and Conditions (“​GTC​”) apply between you (“you” or “your”) and Freachly GmbH (“​Freachly​”). Definitions of special terms can be found in the Appendix to these General Terms and Conditions, unless they are listed separately in these General Terms and Conditions.

The GTC consist of the General Terms and Conditions for Influencers (together the “​Influencer GTC​”) and the General Terms and Conditions for Partners (together the “​Partners GTC​”) (Influencer and Partners together also “​Users​”).

Freachly offers partners on the Freachly website or app (together the “​Freachly Platform​”) the publication of advertising collaborations between influencers and partners, which can take the form of product placement deals, performance deals and give-away deals etc (“​Deals​”). Freachly offers influencers the opportunity to view and accept deals in return for a consideration.

By using the Freachly Platform, the Freachly Website and/or the Freachly App, the user agrees to the GTC. Freachly is entitled to change the GTC at any time. In this case, Freachly will communicate changes to the GTC on the Freachly platform and by e-mail. The user can object to the changed conditions of participation within two weeks. If he does not do so, the approval of the amendment shall be deemed to have been given. Otherwise, these terms and conditions continue to apply unchanged, but Freachly reserves the right to terminate this contract if the continuation is unreasonable.

The general terms and conditions of Freachly apply exclusively to the use of the Freachly platform and the deals. Differing, conflicting or supplementary general terms and conditions of the partner and/or the influencer will only become part of the contract if and insofar as Freachly has expressly agreed to their validity. This requirement of consent shall apply in any event.

Individual agreements made with the user in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. A written contract or written confirmation by Freachly is required for the content of such agreements.

Legally relevant declarations and notifications to be made to Freachly after conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing in order to be effective.

References to the validity of legal regulations have only clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GTC.

INFLUENCER GTC

1 Freachly platform, contractual relationships

(1) Freachly offers users a platform on which partners can post deals as they see fit and influencers can accept these deals.

(2) Freachly merely establishes the connection between partners and influencers and is not a contracting party and/or debtor of a deal or its performance promises.

(3) Direct performance relationships exist between the influencers and the partners with
regard to the rights and obligations arising from a deal.

(4) Freachly does not assume any liability or guarantee for the execution of the brokered deals and will not check them. The legal relationship with regard to the deals concerns only the partner involved and the influencer. These contracts do not have any legal effect on Freachly. The influencer can assert claims arising from the contract brokered by Freachly exclusively against the partner. There are no claims against Freachly arising from the mediated contractual relationship.

2 Registration, Use, Account

(1) Influencers must create an account on the Freachly Platform either via the Web or the Freachly App (“Account“) in order to use Freachly.

(2) Influencer undertakes to provide truthful information when registering and not to impersonate any other person or use any name for the use of which it is not authorised.

(3) The influencer must be at least 16 years old. Exceptions to this can only be granted on the basis of a written application to Freachly and Freachly’s consent.

(4) The influencer undertakes to create only one account.

(5) The influencer can link his social media accounts with Freachly if Freachly offers the link for the respective social media platform. In this case, users of Freachly and Freachly can see what content the influencers have already published.

(6) The influencer is not entitled to transfer his account to third parties without written permission.

(7) The influencer is solely responsible for the security of his password. A passing on to third parties is not permitted. If the password has become known to third parties, the influencer is obliged to change his password immediately.

(8) The influencer undertakes not to transmit any content containing viruses, Trojans or other programs that could damage Freachly’s system. In the event of non-compliance, the influencewill be immediately excluded from Freachly’s participation. He shall compensate us for any damage which we have suffered as a result of any culpable breach of the above obligations.

(9) The influencer undertakes not to disseminate any advertising or inaccurate warnings of viruses, malfunctions or the like or to request participation in competitions, snowball systems, chain letters, pyramid games or comparable activities.

(10) The influencer is obliged to observe and acknowledge the rules laid down in these Influencer GTC and the Deals for each use of Freachly. If these regulations are violated, the influencer can be excluded from the use of Freachly with immediate effect. Freachly also reserves the right to assert claims for damages.

(11) The influencer can have his account deleted at any time. He informs Freachly of his wish to delete the account by e-mail. The deletion will be carried out within ten days.

3 Deal terms and conditions

(1) Deal conditions influencer side:

(a) The deals are designed so that the fulfillment of a particular deal is expected to follow the ideas of a partner. The partner must always be presented in a positive and exclusively positive light in the context of the postings (both in story postings and feed posts) and the corresponding comments on the postings. The partner describes the deal as accurate and detailed as possible, specifying eg the social media channel (eg Instagram), the medium (eg video, story, photo), what has to be seen (eg product placement) and the type of Contents (text, tags), etc. In addition, the offers are individually specified. In each offer the consideration is given by the partners. These can be discounted prices at the partner, free products, etc.

(b) Affiliate deals published by Freachly are non-binding offers to an influencer to accept the deal. Registered influencers can apply for the deal by accepting the deal online. With acceptance of this application by the partner, the deal and thus a contract between partner and influencer about the deal comes about. Contracts for a deal can also come about because an influencer scans a code directly to a partner or manually enters it by reading it to the partner on the spot, so the deal was released for direct adoption by the influencer and the influencer has done so.

(c) By accepting a deal, the influencer is required to fulfill the deal in accordance with the offer description of the partner in the Freachly App (“Deal Terms App”). The deal terms app see as performance of the influencer, the publishing of text, image and / or video recordings, etc. (collectively “content”) on social media channels of the influencer for a certain period of time in a certain length (eg, Instagram story length) to certain others Conditions before (“Posts”). Unless otherwise described in the Deal Terms app, the influencer must in any case comply with the following conditions:
● A mail must be visible for at least three (3) months. Posts should not be archived or deleted during this time
● Tags and links must be implemented according to the deal conditions app
● Content, especially image captures on Instagram, must exactly match the deal terms app and these terms and conditions
● Social media profiles (especially Instagram accounts) may not be set to private, but must be publicly available
● Posts must be posted within 4 days after using the consideration eg (i) receipt of the order of a product or (i) after visiting the partner locations (eg restaurant) and consuming the consideration on the influencer social media profile
● The posting in connection with a Freachly Deal use may not be linked to other cooperations. The partner (or its products / services) must / must be in the center of the posting and the associated description
● If the influencer does not receive any Affiliate Products within two (2) weeks of a Affiliate Product Order, Influencer must report this to Freachly
● Deals may not be accepted again until two (2) weeks after accepting a deal on Freachly. Double bookings do not relieve the influencer of the minimum time a post needs to be online and publicly available. Each Dealeinlösung committed in this context to a new posting, even if the same deal has already been accepted and a post was created
● Storypostings must be saved and sent to Freachly together with the story stats, at the latest at the request of Freachly
● Images and social media stories (eg Instagram and Facebook) as well as insights (ie analytic evaluation of a post on a social media channel eg Instagram via demographics, clicks, views, likes etc.) must be sent to Freachly and / or the partner on request
● In the case of negative experiences / experiences with partners, the influencer is required to consult with Freachly and to be exempted from posting at first
● In the case of cancellation or “No Show” (influencer does not appear without cancellation) of hotel bookings within 24 hours before the start of the travel period, the influencer is obligated to pay a lump sum of 100 € per hotel or event day as a contractual penalty

The terms of a deal can be adjusted and / or extended and / or modified in the Freachly App through the Deal Terms app. If the Deal Terms App and these Influencer Terms diverge, the Deal Terms app will prevail in case of doubt.

(2) Consideration:

(a) The Deal Terms App include, in each case, which consideration the influencer receives against fulfillment of the performance of a deal owed. This can include the following consideration:
● Cash incentive: If the influencer is in receipt of a payment in cash, the influencer agrees to send an invoice by e-mail to Freachly. Invoice requirements (eg if the influencer is a company) are to be determined and adhered to by the influencer. The invoice must comply with all legal requirements and in particular include a date, an invoice number and, if applicable, a reference to VAT exemption. The bill will be settled Freachly as soon as Freachly has been paid by the partner.
● Coupon Code: Should the influencer consideration be a coupon code, the coupon must be cashed by the influencer within four (4) days of receipt of the coupon; If the influencer does not redeem the coupon within this period, Freachly and the Affiliate are entitled to give the coupon to another influencer. The influencer automatically withdraws from a deal if he / she does not accept it.
● Products / Services: The Influencer receives the products listed in the Deal Terms app and can retain them when completing the deal. For services (eg use of an app), the influencer may use the services specified in the terms of the app for the period
specified therein.
For further details regarding the consideration, § 6 of the Influencer GTC applies.

4 Rights and obligations of the counterparties

(1) Influencers are under no circumstances permitted, contrary to the above-mentioned agreement, to delete content of any kind from a social media channel without the express consent of Freachly or its partners prior to the expiry of any existing deadline and to withhold it from the public in any other suitable form.

(2) Influencers are not permitted to make unsolicited direct contact with the partners in order to request a renegotiation of the deal or the realisation of the cooperation. Communication between partner and influencer must be done through the Freachly platform.

(3) If the influencer violates any of the terms and conditions set out in the Deal Terms or these Terms and Conditions, Freachly reserves the right to exclude the influencer from the relevant deal. A claim for any consideration for the influencer then does not arise. The same applies to the case that Freachly only later learns of a violation of the deal conditions by the influencer. In this case, Freachly expressly reserves the right to reclaim the compensation already paid to the influencer.

(4) If the influencer violates any of the obligations stated in the terms of the agreement, in particular by not publishing the agreed content at all or not in the agreed form or duration, Freachly shall be entitled to charge the costs of the product, including shipping costs and all, Freachly incurred by the damage plus a processing fee of up to 50.00 EUR to the influencer.

(5) Freachly reserves the right to exclude influencers from using the platform in its entirety, provided that a violation of the underlying terms of use or individual deal conditions app is detected. The same applies if Freachly comes to the conclusion that the content of the account or one or more social media channels of the influencer or his appearance in the public, moreover, is not compatible with the offer of Freachly or the partner. A claim to participation in a deal on the Freachly platform expressly does not exist.

(6) The influencer is obliged to attach necessary markings to the content, if required by law. In particular, this includes the labeling as “advertising”, provided that the legal requirements for this exist. Inquiries about this have to catch up with the influencer himself. The influencer hereby expressly indemnifies Freachly and the Affiliate from any obligation arising out of a missing mark.

(7) Freachly and the partners are allowed to insert so-called tracking links into the posts posted by the influencer in order to measure and analyze the clicks in relation to a post.

5 Copyright and other ancillary copyright

(1) The influencer grants Freachly an exclusive, unlimited right to use the created content including any text, image and / or film material. Excluded from the exclusivity is the right of the influencer to publish the posts created in the deal on his other social media channels. The authorship of the influencer is recognized. The influencer transfers to Freachly all rights to use and exploit the content, including the right to publish, upload to rating portals and Internet directories, publish on its own websites and social media channels, including unannounced reposting and use of a post for a partner’s social wall. The influencer allows Freachly to continue to use and exploit the content without restriction in terms of time and space. The influencer permanently waives his right to copyright. The Influencer also allows Freachly to grant sublicenses to the respective partners to the extent described here.

(2) The influencer confirms upon conclusion of the contract that he has all rights to the texts, emojis, photos, graphics, videos, texts or other materials used by him in the post, if applicable. This applies in particular to copyright as well as all other ancillary copyrights, trademark rights, database rights and rights to one’s own image. The right to use the advertised brand or logo of the partner to create and publish the deal is granted to him by Freachly in sublicense.

(3) In addition, the influencer is obliged not to use any photos, graphics, videos, texts or other materials in the production whose content or use violates criminal law or in any other way against criminal regulations. This includes in particular photos, graphics, videos, texts or other materials whose content is offensive, inciting to hatred, pornographic or extremist. In the same way, the influencer is obliged not to make any insulting, seditionous, pornographic or extremist statements.

(4) If the influencer violates any of the aforementioned obligations, Freachly reserves the right to withdraw from the contract. The Influencer exempts Freachly from all claims of third parties based on a breach of its aforementioned contractual obligation. He shall compensate us for any damage which we have suffered as a result of any culpable breach of the above obligations.

6 Consideration

(1) The partner will provide the counterparty with the influencer as indicated in the respective deal.

(2) In the case of cash incentive: The fee corresponds to the amount stated in the respective deal. This is to be understood as a net price excl. VAT, if any, and becomes due when the influencer has created the posts and published them on his social media channel.

(3) For product / service remuneration: A cash consideration for posts that contain the obligation to order a product / service and post about it, the influencer does not receive regularly. The influencer may use the provided product / service for its own purposes after the deal has been completed. In addition, he is not entitled to compensation or other benefits either against Freachly or against the partner.

(4) The influencer receives the agreed fee by bank transfer. For this he has to communicate his valid bank account and to make a proper calculation. Invoicing takes place at the following address. Freachly GmbH, Buschweg 6, 25421 Pinneberg. The invoice must fulfill all the requirements of a regular invoice and accordingly bear an invoice number, bear the name and address of the biller, include a reference to sales tax or VAT exemption and, if necessary, give the VAT ID of the biller.

7 Warranty

(1) There is no claim by the influencer for continuous availability of the Freachly platform or the Deals. Access to the Freachly Platform may occasionally be interrupted or restricted to allow repairs, maintenance, or the introduction of new facilities or services. The influencer is not entitled to any compensation if the Freachly service cannot be accessed for the above reasons or due to force majeure or if the partner changes/gives up a deal.

(2) For the rights in the case of material defects and defects of title, the statutory provisions shall apply, unless otherwise stipulated in these GTC.

(3) Freachly assumes no responsibility for the correct data collection of the partner’s generated tracking link.

(4) The influencer warrants that the Affiliate and Freachly may use the Post without infringing third party rights. Incidentally, the statutory provisions on warranty for defects in quality and title shall apply.

8 Liability

(1) Freachly is liable only in the legally mandatory case, eg for intent and gross negligence as well as in case of personal injury. However, Freachly is liable for slight negligence only in the event of breach of essential contractual obligations, as well as in the event of impossibility for Freachly and in the event of default. The liability is limited to the contract-typical damage, with the emergence of which Freachly had to count on the conclusion of the contract due to the circumstances known at that time. In addition, Freachly is fully liable for damages for which mandatory statutory provisions, such as the Product Liability Act, provide for liability. The influencer is liable to indemnify the Partner for damages incurred in connection with deals and services. Freachly can not be held liable for any damages incurred in connection with the use of any consideration.

(2) We shall only be liable for the loss of data in accordance with the preceding paragraphs and only if such a loss could not have been avoided through appropriate data protection measures by the influencer.

(3) The limitations of liability also apply mutatis mutandis to our vicarious agents.

(4) Freachly has no further liability, in particular Freachly is not liable (i) for all damages in with the consideration as well as (ii) for content provided by the partners or influencers, unless Freachly owns them by transfer . In particular, Freachly is not liable for missing labeling of the delivered content as advertising or infomercial.

(5) The Influencer shall be liable to Freachly for breach of its obligations under this Agreement, and in particular, Section 4, if Freachly is claimed for violations committed by the Influencer.

9 Confidentiality

(1) The influencer undertakes to keep silent about the offers for all deals and to keep this information confidential. This includes both the deals published by Freachly and all related information as well as the individual information of the respective deals that the influencer receives from the partners. This includes in particular the name of the partner as well as the type of deal, the Freachly platform as well as individual specifications and wishes for the deal. However, the influencer is allowed to generally recommend Freachly to other influencers.

(2) In particular, the influencer is forbidden to publish, publish or otherwise publish this information on the Internet, in particular in so-called social networks and media.

(3) Excepted from this obligation are such information about the deal,

a) which were demonstrably already known to the influencer when the account was created or which subsequently become known to the influencer by third parties, without thereby violating a confidentiality agreement, statutory regulations or official orders;

b) which are publicly known when the contract is concluded or are subsequently made public, unless this is due to a breach of this contract;

c) which were required to be disclosed due to statutory obligations or at the order of a court or an
authority. To the extent permissible and possible, the recipient obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.

(4) Any culpable violation of these regulations will result in a contractual penalty of 30% of the agreed fee. Further claims of Freachly remain unaffected.

10 Notes on data processing

(1) Freachly collects data from the Influencer as part of the deals and the provision of the Freachly Platform. Freachly pays particular attention to the provisions of German data protection laws, including the General Data Protection Regulation and the Telemedia Act. Without the consent of the influencer, inventory and usage data are only collected, processed or used as far as this is necessary for the execution of the contractual relationship and for the use and billing of telemedia.

(2) Without the consent of the influencer, Freachly will not use data of the influencer for purposes of advertising, market research or opinion polling. However, the influencer hereby agrees that Freachly collects data on the location of the influencer (so-called geolocation data) and may send the influencer directly or through vicarious agents marketing materials, eg newsletters, to his contact data stored at Freachly.

(3) The influencer has at any time the opportunity to retrieve the data stored by him or the consent under §10 (2) in his profile or by direct request to Freachly to change or delete them. In addition, with regard to the influencer’s consent and further information on the collection, processing and use of data, reference is made to the data protection declaration, which can be called up at any time in printable form on the Freachly website.

11 Final provisions

(1) Contracts between Freachly and the influencer shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The contract language is exclusively German.

(2) The place of jurisdiction for all disputes arising from contractual relationships between the influencer and Freachly is Berlin, insofar as the influencer is an entrepreneur. In the case of negative experiences / experiences that the influencer has with partners, the influencer is first required to consult with Freachly.

(3) Should individual provisions of these terms and conditions be wholly or partially invalid, the validity of the remaining terms and conditions shall not be affected thereby. Statutory provisions, if available, shall replace the ineffective provisions.

PARTNERS GTC

1 General information

(1) These terms and conditions apply to all business relationships with partners, in particular for business relationships that have been concluded via the Freachly platform, by e-mail or by telephone or in person. Contracts between Freachly and the partner are only concluded if the partners are entrepreneurs (§ 14 BGB), legal persons under public law or a public-law special fund.

(2) Freachly offers the partner a platform on which he can offer deals that require posts on social media channels, and commission them according to his ideas. Freachly takes these orders and shows them to influencers who can accept the partners’ deals. Influencers complete and publish the posts according to the partners’ ideas as stated on the Freachly platform.

(3) The terms and conditions of Freachly apply exclusively. Any differing, conflicting or additional general terms and conditions applied by the Customer will become a part of any contract only to the extent to which we expressly agree. This requirement of consent shall apply in any event.

(4) Any individual agreements reached with the Client (including ancillary agreements, supplements and amendments) shall in all cases have precedence over these GTCs. A written contract or our written confirmation shall indicate the content of such agreements.

(5) Legally relevant declarations and notifications to be made to us by the partner after conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing in order to be effective.

(6) Any references to the applicability of statutory provisions shall only serve for the purposes of clarification. Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly amended or expressly excluded in these GTC.

2 Registration, Use, Account

(1) Influencer undertakes to provide truthful information when registering and not to impersonate any other person or use any name for the use of which it is not authorised.

(2) The partner undertakes to create only one account.

(3) The influencer is not entitled to transfer his account to third parties without written permission.

(4) The partner alone is responsible for the security of his password. A passing on to third parties is not permitted. If the password has become known to third parties, the influencer is obliged tochange his password immediately. He is responsible for the behavior of his employees and has to instruct them properly.

(5) The influencer undertakes not to transmit any content containing viruses, Trojans or other programs that could damage Freachly’s system. In the event of non-compliance, the influencer will be immediately excluded from Freachly’s participation. He shall compensate us for any damage which we have suffered as a result of any culpable breach of the above obligations.

(6) The influencer undertakes not to disseminate any advertising or inaccurate warnings of viruses, malfunctions or the like or to request participation in competitions, snowball systems, chain letters, pyramid games or comparable activities.

(7) Each time Freachly is used, the Affiliate undertakes to comply with and adhere to the rules set forth in these Terms of Participation. If these regulations are violated, the influencer can be excluded from the use of Freachly with immediate effect.

(8) The partner can have their user account deleted at any time. He informs Freachly of his wish to delete the account by e-mail. The deletion will be carried out within ten days.

3 Conclusion of contract, service description

(1) An effective contract is only concluded if the partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. If Freachly is commissioned by a consumer, Freachly reserves the right to revoke the acceptance within 14 days of becoming aware of the consumer’s property.

(a) The duration of the contracts between Freachly and the partner will be specified in the contract. Contracts with a monthly term and a monthly fee will be extended for another 12 months at the end of the contractually agreed term. A cancellation must be made 6 weeks before the end of the term. Effective notice of termination must be in writing and can be sent to Freachly either digitally (partner@freachly.de) or by post.

(b) Prices for Freachly’s services to the Affiliate will be specified in the contract.

(c) Contracts between Freachly and the Affiliate will also be honored if the Affiliate services the services of Freachly through a web platform. Valid price and valid term are then displayed on the web platform and confirmed by the booking by the partner

(2) The Affiliate makes a deal on the Freachly Platform. The partner initially has the choice of whether to discontinue a product placement deal, a performance deal or a give-away deal.

(3) Product Placement Deal:

(a) Here, the partner can first choose for which social media channel he wants to create his deal. Then the partner makes another selection, eg video type or the type of content (Instagram story, Instagram photo or video). Freachly specifies the types and categories of channels and file types offered and reserves the right to change them at any time, as long as it considers this necessary for the design of the deal. A claim by the partner to have the deal created in a particular file type does not exist. In addition, the partner can describe in detail his wishes regarding the deal to be created. The partner gives a consideration for the deal to be published. The Partner is obliged to describe the desired deal as precisely as possible in order to avoid future disputes regarding the content and appearance of the deal.

(b) The cessation of the above offer is considered a binding contract offer.

(c) After receipt of the offer, Freachly checks whether the desired deal can be realized. In particular, Freachly reserves the right to be reviewed for offensive, racist, otherwise defamatory or punishable content. In such a case, a notification is made that the contract can not be produced. An acceptance will then not take place. If Freachly, after examining the offer, has come to the conclusion that it can accept the desired deal, the partner’s offer will be published in the Freachly App.

(d) Freachly forwards the partner’s mandate to registered influencers to allow them to review the
offer and to apply for it. If interested influencers Freachly leads the partner to express their interest. The acceptance or rejection of the interest of an influencer by the partner must be immediate. In case of acceptance, the fees to be paid according to § 6 of the GTC partners become due immediately. If the partner rejects the expressions of interest of the influencer, Freachly forwards new expressions of interest expressed by other influencers. The partner can also decide to make deals available to influencers without prior approval.

(e) After deal use, the influencer will post and publish via his social media channels. The partner
can not refer to a deviation if he did not previously provide enough information to create the post.

(f) Objections to the completed mail must also be made to Freachly within one week. If the partner does not raise any objections within this period, the post made will be deemed to have been accepted after the deadline.

(4) Performance Deal:

(a) The Affiliate may offer a Performance Deal on the Freachly Platform. For this, the partner has to explain the content of the deal. On the platform, he gives information on the type of remuneration (eg per click, per conversion, per registration, etc.) and the amount of the fee of the deal. In addition, a description of the product or service to be advertised must be provided. Then the partner provides the link to his deal.

(b) Publishing the link on the Freachly Platform is considered as a binding contract offer.

(c) After receipt of the deal, Freachly will check whether the desired deal contains offensive, racist, otherwise defamatory or punishable content. In such a case, a notification is made that the contract can not be produced. An acceptance will then not take place.

(d) If Freachly, after examining the deal, has come to the conclusion that it can publish the Partner’s deal, Freachly shall make the deal available to influencers on its platform with the description provided by the Partner and the terms and conditions of the deal. The link provided by Freachly is a so-called tracking link generated by Freachly, with the help of which the actions (e.g. clicks, installs, reservations etc.) can be tracked. The influencers to whom the tracking link is made available will publish it in their social media channels and on other channels allowed by Freachly.

(e) If the budget of the deal indicated by the partner is used up, the deal will be stopped by Freachly. The deals will then no longer be available. Since the clicks are only updated every 2 minutes, the budget previously set by the partner may be exceeded if further clicks are made after the budget has been exceeded and these are not recorded until the next update.

(g) Freachly may terminate a Performance Deal at any time in its sole discretion and settle it with the Partner. Freachly will terminate a deal in particular if the budget indicated by the partner has not been used up even after a longer period of time or if too few or no influencers have participated in the deal.

(h) The Partner has the opportunity to view the list of influencers participating in each Performance Deal that has been posted. Communication between partner and influencer is not possible.

(5) Give-away deal:

(a) The content of the give-away deal is the mediation of contacts to influencers by Freachly to the partner. Freachly only acts as a mediator to the influencers in this type of deal. Freachly has no contractual obligation of its own to create the deal or produce content. This obligation lies exclusively with the influencers after the mediation has been concluded.

(b) This deal type creates a post on instagram. Subsequently, the partner provides information on the give-away provided and to be advertised by him. The partner then makes a choice about how many contacts are to be made. The partner can purchase packages with contacts in different maximum sizes.

(c) Influencers can apply for the deal of the partners via the Freachly application or accept deals directly with the Freachly application. Influencer applications are binding contract offers for the execution of the deal. Only in the case of an influencer application can the partner release the participating influencer before conclusion of the contract. As a rule, the contract between the influencer and the company is concluded via direct deal acceptance in the Freachly App. The partner is obliged to transmit the give-away to the influencer(s) after conclusion of the contract.

(d) Once the post has been created by the influencer, Freachly will inform the Affiliate. A check by Freachly takes place in the context of the Give-away Deals expressly. The content will be published after completion. The partner must raise objections to the post office with Freachly. Freachly will make every effort to correct any discrepancies between the posting and the partner’s specifications. Freachly is not responsible for unclear information in the Freachly application regarding the constitution of the posting.

(e) The legal relationship with regard to the deals concerns only the partner involved and the  influencer. These contracts do not have any legal effect on Freachly. The partner can assert claims from the contract mediated by Freachly exclusively against the influencer. There are no claims against Freachly arising from the mediated contractual relationship.

(f) The Partner has the possibility to book further influencer contacts at any time. These can also be booked in the available packages.

4 Withdrawal from Product Placement Deals

(1) Freachly forwards the offers for product placement deals made by influencers to the partners. The partner is free to accept or refuse the services described by the influencers. If the partner rejects all proposals submitted to him, Freachly will find further influencers to create the deal within the specified price range and propose them to the partner.

(2) Freachly reserves the right to withdraw from the contract concluded with the partner if the partner also rejects the proposals submitted by Freachly for the acceptance of the deal at the third time. Freachly expressly reserves the right to assert claims for damages in this case.

(3) Freachly reserves the right to withdraw from the contract even in the event that the contracted influencer does not perform despite his contractual obligation, without Freachly is to blame for this. In this case Freachly will immediately inform the partner that the contractually owed service has not been provided by the influencer and will immediately reimburse any services already provided.

(4) For its part, the Partner is free to declare its withdrawal from the contract if the proposals submitted by Freachly do not correspond to the descriptions given by the Partner, even if they are submitted for the third time. Freachly is not entitled to compensation for additional expenses, as it is typically a design contract that is characterised by the individual ideas of the contracting parties, so that it is typically not uncommon that three proposals submitted do not correspond to the client’s ideas.

5 Copyright

(1) After completion of the post by the influencer, Freachly undertakes to make the intellectual property of the contents of the post available to the partner in an appropriate form for a fee. For this purpose, the Partner is regularly provided with a link to Freachly’s Freachly platform where he can check the content of the post.

(2) The Partner only receives a right of use to the contents of the Post to the extent that it may share the Posts on its own social media channels and integrate “embedded” on its own homepage. The Partner shall name the author in each case in an appropriate manner. He is not entitled to any further rights of use, in particular the right to publish, distribute or make publicly available. A separate agreement with Freachly is required for the transfer of rights of use. Freachly assures to have all transferable rights to the content. Freachly releases the Affiliate from all claims of the producing Influencer regarding copyright.

(3) The Partner shall transfer to Freachly a simple right of use to the trademark or company logo concerned as well as to all other intellectual property rights. The Partner confirms to Freachly upon conclusion of the contract that Freachly may dispose of all industrial property rights and intellectual property rights associated with the Partner, in particular with regard to the contents of the Performance Deals. The partner expressly releases Freachly from any existing third party claims. This right of use is limited in time and content to the duration of the deal and its publication on the influencer’s social media channels. Freachly is entitled to grant the producing influencer a corresponding sub-licence for this purpose.

(4) Within the framework of a give-away deal, the partner is obliged to transfer all necessary rights for the production of the content to the influencer. This concerns, above all, the rights to the respectively affected brand or company mark as well as to all other intellectual property rights.

6 Remuneration and commission

(1) Fees can be viewed on the Freachly platform or the Deal Agreements App or the marketing materials used by Freachly and are determined according to the package booking, but are usually monthly fixed prices. Freachly and its partners may also enter into individual agreements on fees. Individual agreements are contractually agreed.

(2) The prices set by Freachly are net, ie excluding any applicable sales tax.

(3) Unless otherwise agreed, fees shall be due monthly on the first day of each month.

(4) Performance Deals are settled by Freachly after the deal has ended. The deal is terminated when the budget specified by the partner is reached, when the partner has stopped the deal and when Freachly has terminated the deal prematurely (§3, par. 4 g The basis for the settlement of compensation for performance deals are so-called commitments. Every “Like”, every “Storyview” and every “Comment” on the social media channels qualify as “Engagement. Details are regulated in individual agreements.

(5) The Partner may make the payment by bank transfer. Payment by direct debit is also
possible.

7 Warranty

(1) The Partner is not entitled to uninterrupted availability of the Freachly Platform. Access to Freachly may occasionally be interrupted or restricted to allow repairs, maintenance, or the introduction of new facilities or services. The partner is not entitled to any compensation if the Freachly service cannot be accessed due to the above reasons or force majeure.

(2) The partner’s rights of withdrawal in the event of material defects and defects of title are hereby excluded unless they are legally mandatory.

(3) The basis for liability for defects is in particular the agreement reached on the quality of the contents of the post. The order descriptions of the partner within the Freachly App are regarded as an agreement about the quality.

(4) Freachly warrants the agreed quality. If the content of the Mail corresponds to the specifications and descriptions made by the Partner, the Partner may not refuse acceptance of the Mail unless the original order was substantially deviated from and only complaints exist regarding the appearance of the Mail which do not relate to the agreed quality. This is particularly the case if the partner has not made any specifications in his offer regarding the rejected parts of the post.

(5) In the case of performance deals, Freachly can not guarantee that the published links have a certain reach or reach a certain target group. If necessary, the partner can influence this by selecting the influencers who publish the tracking links. Freachly is solely responsible for making the tracking links and the deal information available to the influencers. Whether and where the tracking links are published can not be guaranteed by Freachly.

(6) The Partner must immediately check the Product Placement Deal Posts for obvious defects and notify them immediately if Freachly is available, otherwise a warranty for these defects is excluded. This applies both with regard to the technical usability of the content and with regard to the agreed quality in terms of content, graphics and art. The same shall apply if such a defect becomes apparent later. § 377 HGB applies.

(7) The right of the partner to reduce the price or to withdraw from the contract in case of a failure of the repair or replacement at his option remains unaffected. A right of withdrawal does not exist for insignificant defects. If the partner asserts compensation or compensation for futile expenses, Freachly shall be liable according to § 7 of these Partner Terms and Conditions.

(8) Warranty claims due to material defects become statute-barred within one year. The statute of limitations begins with the use of the content by providing the link. For claims for damages and claims for the reimbursement of futile expenses § 8 applies.

(9) If an influencer does not post in the aftermath of the brokerage by Freachly, Freachly will reimburse the partner’s material costs / overhead at the provided influencer deal. The partner must prove the material costs / material costs accordingly, otherwise Freachly will assume material costs amounting to 35.0% of the deal value.

8 Liability

(1) Freachly shall be liable for intent and gross negligence as well as in the case of personal injury without restriction, for slight negligence, however, only in the event of breach of essential contractual obligations, as well as in the event of impossibility for us and delay. The liability is limited to the contract-typical damage, with the emergence of which Freachly had to count on the conclusion of the contract due to the circumstances known at that time. In addition, Freachly is fully liable for damages for which mandatory statutory provisions, such as the Product Liability Act, provide for liability.

(2) We shall only be liable for the loss of data in accordance with the preceding paragraphs and only if such a loss could not have been avoided through appropriate data protection measures by the influencer.

(3) The limitations of liability also apply mutatis mutandis to our vicarious agents.

(4) Further liability of Freachly does not exist, in particular Freachly is not liable for content provided by the partner or the influencer, unless Freachly appropriates them by passing them on to third parties. In particular, Freachly is not liable for missing labeling of the delivered content as advertising or infomercial. If the partner wishes to label the content as advertising, this must be reported to the influencer. The influencer hereby expressly indemnifies Freachly and the Affiliate from any obligation arising out of a missing mark.

(5) If the partner sends materials, products or other items to the influencer for the purpose of creating the post, he alone is liable for the condition and return of the materials, products or other objects provided. Freachly accepts no liability or guarantee for materials, products or other items provided to the influencer.

9 Contractual penalty

If the Partner (i) enters into a contractual relationship with the Influencer directly, bypassing our range of services, after the Influencer’s offers have been transmitted to the Partner via the Freachly platform, by e-mail or telephone and/or (ii) enters into a contractual relationship with the Influencer within 6 months after completion of a Product Placement Deal and provision to the Partner for the creation of a further deal, which is no longer covered by the deal originally created with Freachly assistance, a contractual penalty of EUR 1.000 (one thousand Euro) per infringement.

10 Customer reference

(1) Unless otherwise agreed or the partner does not expressly contradict, the partner agrees with contract conclusion to serve as a reference for Freachly. The references may be presented in both digital and non-digital form. Freachly may use the partner’s company name and logo as well as other publicly known information, such as the industry, when presenting the reference.

(2) The partner may request the removal of the reference provided that the last order placed was placed at least five years ago. In addition, the Partner can revoke the consent at any time and demand the removal if personal data are affected by the publication as a reference. In this respect, reference is made to the data protection provisions. The Partner shall also be entitled to a right to distance if the naming of the Partner as a reference demonstrably concerns special business interests of the Partner, in particular trade secrets.

(3) If Freachly is obliged to remove the reference in accordance with the previous paragraph, the Partner shall grant Freachly a period of one month to remove the reference for slightly changeable uses (e.g. website, e-mails, social media channels, etc.) and a period of six months for all other uses.

11 Confidentiality

(1) The Partner undertakes to maintain secrecy with regard to all offers relating to deals (product placement deals, give-away deals and performance deals) and to treat this information confidentially. This includes in particular all details, information and data about the participating influencers, the agreed prices and in particular information about the platform itself. This includes the name of the influencer as well as the type of deal and the content of the agreements between the influencer and the partner.

(2) In particular, the Partner is prohibited from disseminating, disclosing or otherwise publishing this information on the Internet, in particular in social networks and media.

(3) This obligation does not apply to information on deals,

(a) The Partner was already demonstrably aware of at the time of conclusion of the contract or becomes aware of this from a third party, without this violating a confidentiality agreement, statutory regulations or official orders;

(b) which are publicly known when the offer is withdrawn or are subsequently made publicly known, unless this is due to a breach of this contract;

(c) which are required to be disclosed by law or by order of a court or authority. To the extent permitted and possible, the recipient subject to the disclosure obligation shall give prior notice to the other party and give it the opportunity to take action against the disclosure; or

(d) whose publication the influencer and/or freachly has agreed to (e.g. naming influencer in reposting).

(4) Any culpable violation of these provisions shall result in a contractual penalty of 30% of the agreed remuneration. Further claims of Freachly remain unaffected.

12 Notes on data processing

(1) Freachly collects data of the partner within the framework of the handling of contracts. Freachly complies in particular with the provisions of the Basic Data Protection Ordinance (DSGVO), the Federal Data Protection Act and the Telemedia Act – in each case if and to the extent applicable. Without the consent of the partner, inventory and usage data are only collected, processed or used insofar as this is necessary for the processing of the contractual relationship and for the use and billing of telemedia.

(2) Freachly will not use data for advertising, market or opinion research purposes without the consent of the partner.

(3) The partner or his employees have the possibility at any time to retrieve the data stored by Freachly in his profile, to change or to delete personal data. In addition, with regard to the consent of the partner and further information on data collection, processing and use, reference is made to the data protection declaration, which can be downloaded from the Freachly website at any time in printable form.

13 Final provisions

(1) The law of the Federal Republic of Germany shall apply to contracts between Freachly and the partner to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The contract language is exclusively German.

(2) The place of jurisdiction for all disputes arising from contractual relationships between the partner and Freachly is Berlin.

(3) Freachly is entitled to change the above conditions of participation at any time. In this case, Freachly will post changes to the Terms of Participation on its platform and via email. The partner is given the opportunity to object to the changed conditions of participation within two weeks. If he does not do so, the approval of the amendment shall be deemed to have been given. Otherwise, these terms and conditions apply unchanged.

(4) Should individual provisions of these terms and conditions be wholly or partially invalid, the validity of the remaining terms and conditions shall not be affected thereby. Statutory provisions, if available, shall replace the ineffective provisions.

 

DEFINITIONS

 

Deals” – any Freachly-initiated advertising collaboration between influencer and partner that can take the form of Product Placement Deals, Performance Deals and Give-away Deals etc. The subject of a deal is the creation of posts by the influencer on the one hand and performance of the consideration by the partner on the other hand.

Consideration” – any material consideration that a partner promises to fulfill a deal, such as payment in cash, provision of product, use of services, etc.

Influencers” – Advertisers, bloggers, video producers and other persons or companies posting posts on social media channels, whereby the influencers are both consumers (within the meaning of § 13 BGB) and entrepreneurs (within the meaning of § 13 BGB). 14 BGB).

Affiliates” – companies that place deals online through Freachly, offer and ultimately commission influencers

Post” – any publication of any text, image, video or other content by the Influencer on one or more social media channels in accordance with the Partner’s Deal Terms App and other guidelines.

Social Media Channels” – Instagram, Facebook, Twitter and other so-called social and other media used to publish content.

Budget” – the maximum amount that the Affiliate is willing to pay for Freachly deals and services provided by Freachly-mediated influencers.