Populary UG (haftungsbeschränkt), Am Kanal 16-18, 14467 Potsdam (hereinafter referred to as “Populary”, “we”, “us”, “our”) operates an online platform under the URL populary.net (hereinafter referred to as the “Platform”) to leverage the success and the awareness level of advertising campaigns and advertised products. The Platform enables brand advertiser to identify key Content Creators from a global network (hereinafter referred to as “Creators”) to target your audience. The Platform provides profile analytics helping you to get in touch with the Creators suitable to promote your advertisement and assists you in analysing and tracking your advertising campaign through a state-of-the-art teal-time reporting dashboard on a SaaS-basis as well as to execute campaigns, manage Creator relationships and monitor campaign KPIs.
The following terms and conditions apply to all subscription contracts submitted online through our website. Please carefully read these terms and conditions before subscribing with us.
2. Scope of these Terms and Conditions
2.1 The present terms and conditions (hereinafter referred to as “T&Cs”) exclusively apply to the contractual relationship between us and you as brand advertiser (hereinafter referred to as “Advertiser”, “you”, “your”) valid at the time you submit your registration request with us. You may at any time download, save and print these T&Cs.
2.1 Any terms and conditions of the Advertiser with provisions deviating and/or additional to the T&Cs do not apply unless we expressly agreed to them in writing. This further applies in case we accept your registration request without expressly objecting your terms and conditions.
2.3 We merely offer our services to undertakings and legal entities. We do not offer our services to private persons. You qualify as a private person in case the purpose of you registration may not be attributed to your commercial and/or professional activity. In contrast you qualify as an undertaking in case you apply for registration acting as an individual or legal entity or incorporated partnership.
3.1 The use of our services requires a registration of the Advertiser through the online subscription page provided on our Platform. Please fill in the data as requested by the online subscription form and submit your registration request by activating the respective button. You are responsible for the correctness and the completeness of the submitted data.
3.2 Once your registration request has been submitted to us we will confirm safe receipt by email. Please note that this confirmation email merely confirms receipt of your registration request and does not represent an acceptance of your request with binding legal effect unless otherwise stated within the confirmation email.
3.3 Your registration request is accepted with its express acceptance by us or by executing the fulfilment of our services.
3.4 Upon registration you grant to Populary the right to use your name as a reference for Populary services. This includes the right to use your logo on our websites. You may revoke this right at any time, in writing, for any future use.
3.5 You do not have any claim for acceptance of your registration request and we reserve the right to reject your registration request at our sole discretion.
3.6 The Advertiser shall keep all access data (login, passwords etc.) for the Platform (“Access Data”) strictly confidential. The Advertiser shall promptly inform Populary in the event that it learns or suspects that an unauthorized third person is in possession of the Access Data. We are not liable for any misuse of Access Data due to the Advertiser’s negligent handling of its Access Data.
3.7 In case Populary has reason to believe that an unauthorized third party is in possession of Access Data, Populary may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respective account. Populary will promptly inform the Advertiser and will, upon request, communicate the new Access Data to the Advertiser without undue delay. The Advertiser cannot claim to have its initial Access Data restored.
4. Our Services
4.1 Populary provides to Advertisers who successfully registered with us access to the Platform and the right to use its technical functionalities including the dashboard to present the subject and the details of the advertisement respectively the intended advertising campaign. Our Platform enables the Advertiser to identify one or more Creator to increase the advertising impact of specific advertising campaigns in order to create and/or promote the sale and/or the awareness of the advertised products. The Creator provides its advertising environment in social media and/or in the World Wide Web in order to assist the Advertiser in its promotional activities for the aforementioned purpose.
4.2 We do not owe any success with respect to the identification of specific Creators or their suitability for the intended advertising campaign. Further, we are not liable for the successful performance of the advertising campaign and/or its commercial success. For the avoidance of doubt, our services are limited to the provision of the Platform and its technical functionalities as described within these T&Cs and any other performance specification within the meaning of a service agreement according to sections 611 et seq. German Civil Code (Bürgerliches Gesetzbuch – “BGB”).
4.3 The Advertiser may offer Creators to assist and participate at their advertising campaign subject to the specifications of the intended advertisement, these T&Cs and any applicable additional terms and conditions provided by you with respect to your advertisement, e.g., terms and conditions for participation at raffles.
4.4 Upon acceptance of the offer by the Creator, the further implementation and execution of the advertising campaign is subject to the individual detailed arrangements as further specified between you and the Creator with respect to the concrete subject of the advertisement and the remuneration to be paid. The individual arrangements and details agreed with the Creator and any additional terms and conditions according to 4.3 form part of the framework contract between Populary and the Advertiser. There are no contractual relationships between the Advertiser and the Creator.
4.5 We assure that we use our best efforts to provide a smooth user experience with our Platform and strive to provide state-of-the-art technical functionalities ensuring a successful advertising campaign. We shall
(i) host or have our third party provider host the Platform;
(ii) grant registered Advertisers access to the restricted user area of our Platform;
(iii) provide technical functionalities to identify, analyse and track Creators, present advertising campaign and monitor the performance of advertising campaigns;
(iv) maintain the technical functionalities of the Platform in particular update and/or upgrade the Platform in irregular intervals and whenever Populary deems such update and/or upgrade as being important for the functionalities of the Platform.
(v) improve the technical functionalities of the Platform and adapt the Platform to technical progress;
(vi) either provide basic support through Populary online support portal to Advertiser at no additional charge; or provide upgraded support, if made available by Populary and subscribed to by the Advertiser;
(vii) Please note that the Platform or parts thereof may be subject to maintenance services, some of which require downtimes of the Platform. During such downtimes the Platform or parts thereof will not be accessible. We will usually notify you on planned maintenance downtimes but we reserve the right to waive such notice in case there are circumstances which require our immediate action for implementing such maintenance services.
4.6 Populary may from time to time, at no charge, permit Advertisers to use certain pre-release Platform features in connection with experimental testing by Advertiser that are not commercially available (“Free Services”). In case we offer you the opportunity to participate at such Free Services, the following shall apply:
(i) The Advertiser may be charged fees for an advertising campaign that exceeds the limitations for Free Services as determined in your subscription details. In such event, Populary will invoice, and the Advertiser will pay fees equal to the then-current standard prices for fee-based subscriptions at the level actually used by the Advertiser. Populary is not responsible for managing the Free Services on behalf of the Advertiser to ensure qualifying limitations are not exceeded.
(ii) Free Services are provided solely and exclusively on an “as-is” basis, without warranty, support or indemnities of any kind. The Advertiser assumes and unconditionally releases Populary from all risks associated with the use of any Free Services.
(iii) Populary may discontinue the Free Services at any time without liability to the Advertiser.
5. Advertiser’s Rights and Responsibilities
5.1 The Advertiser shall provide complete and correct information and advertising material in an appropriate form required and suitable to implement and execute the advertising campaign. The Advertiser shall brief and instruct the Creators(s) on the purpose and any characteristics of the advertising campaign as well as the use of the advertising material.
5.2 The Advertiser warrants and represents that the initiated advertising campaign, its performance, and/or the provided information, advertising material, and any additional terms and conditions of the advertising campaign do not infringe any third party rights and/or any applicable statutory provisions, including but not limited to data privacy law and tele media law. Further, the Advertiser ensures that the advertisement contains mandatory product information as requested by German and/or European law. The Advertiser undertakes to respect any applicable terms and conditions of third party websites, in particular of any social media websites. It is your responsibility to clear any contradictory rights prior to submitting your advertisement to the Platform.
5.3 The Advertiser undertakes to configure the technical parameters of its advertising campaign, such as any tracking settings, reporting settings for campaign analytics and to establish and administer enforceable terms for advertising campaigns as a pre-condition to the participation of Creators and users at the advertising campaign.
5.4 The Advertiser represents and warrants not to submit any advertisement to Populary or the Platform that is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene, or contains links to content of such nature. In case the specific advertisement is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene in certain countries or regions of the world only (“Restricted Countries”), the Advertiser shall block Restricted Countries for such advertisement using the respective dashboard tool or instructing Populary not to display the advertisement in Restricted Countries. Further, the Advertiser shall not submit any advertisement which contains or links to spam, bulk mail or offers with hidden costs, or which may harm the interests of Populary , the Creators and/or the target audience in any other way. The Advertiser ensures that it does not knowingly or negligently send, store, publish, post, upload or otherwise transmit through the Platform any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
5.5 Populary is entitled but not obliged to screen on a random basis advertisements before their activation for advertising campaign and/or activated advertisement campaigns in order to verify their compliance with these T&Cs.
5.6 Populary may, at its sole discretion, deactivate or remove any advertisement which, in Populary reasonable opinion, is contradictory to these T&Cs. Populary undertakes to inform the Advertiser without undue delay in case an advertisement has been removed. The Advertiser can replace the advertisement with another advertisement, which complies with these T&Cs.
5.7 The Advertiser may object the decision of Populary to remove the advertisement and request Populary to review its decision. If, upon further review, Populary agrees with the Advertiser, it shall promptly re-activate the advertisement. If however Populary still disagrees with the Advertiser, Populary may, at its reasonable discretion:
(i) refrain from resuming the advertisement through the Platform; or
(ii) resume the advertisement, but inform its Creators in an appropriate way that it holds the advertisement to be contradictory to the T&Cs, and suggest the Creators put it on a blacklist.
5.8 The Advertiser may not:
(i) sell, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit its access to the Platform and the subscription for the benefit of any third party except as expressly permitted under this Agreement;
(ii) use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the hosting environment or the Platform;
(iii) incorporate any data mining, robots or similar data gathering or extraction methods to the Platform;
(iv) copy, translate, modify, reverse engineer, reverse assemble, disassemble, or decompile the software of the Platform or any part thereof or otherwise attempt to discover any source code of the Platform; or
remove, obfuscate or alter any default disclaimers or copyright notices served by the (v) Platform for display on the advertising campaign (such as footers) without Populary prior knowledge and consent.
5.9 The Advertiser undertakes not to enter into a business relationship with Creators regarding the assistance of the Advertiser in performing advertising campaigns and/or advertisements for the Advertiser’s products, either itself or through any third party, during the term of subscription and for a period of two (2) years after the termination of the contractual relationship between the Advertiser and Populary . That shall merely apply to such Creator who participated at an advertising campaign during the Advertiser’s subscription term and shall not apply to Creators to whom the Advertiser already maintained a contractual relationship before subscribing to our services.
5.10 The Advertiser shall protect, defend, indemnify and hold harmless Populary , and all its officers, directors, agents, employees and representatives, from and against any and all cost and expenses of any nature whatsoever (including legal costs and disbursements), claims and judgements arising out of, or in any way connected with, any claim for the violation by the Advertiser of any statutory or regulatory obligation, any claim for injury or damage to property, personal injury, death or other cause of action involving any claim arising out of the Advertiser’s activities pursuant to the subscription or other conduct of its businesses.
5.11 In the event that the Advertiser negligently or willfully breaches any of its obligations as determined in this T&Cs the Advertiser shall be obliged to pay and Populary shall be entitled to claim a reasonable contractual penalty per breach. The right to claim damages shall remain unaffected whereas the contractual penalty shall be the minimum amount of damages payable and any contractual penalty due shall be credited against the claimed damages. Further, we reserve the right to terminate the subscription and/or suspend respectively limit the access to the Platform and our services for the duration of the persistent breach of the obligation.
5.12 To the extent that any obligation of the Advertiser under these T&Cs protects the interests of the Creators, it shall apply for the benefit of the Creators (Echter Vertrag zugunsten Dritten, section 328 BGB).
6.1 The access to our Platform is subject to an annual subscription. The subscription fee is individually determined and specified by Populary . The subscription fee will be due once Populary confirmed the registration of the Advertiser and delivered Access Data for an initial login to the Platform.
6.2 Advertising campaigns are subject to additional fees depending on inter alia the volume of the planned advertising campaign and the kind and number of involved Creators. The individual campaign fees will be displayed on your dashboard once you uploaded your advertisement and selected your desired Creator(s). The campaign fee is due upon acceptance of the offer of the Advertiser towards the Creator according to 4.4 of these T&Cs.
6.3 Unless otherwise stated (i) fees are quoted and payable in Euros; (ii) fees are payable for the entire subscription, unless otherwise agreed fees are payable respectively for one subscription term period in advance; the standard subscription term period is [1 year] (iii) subscriptions cannot be decreased during the relevant subscription term, and (iv) payment obligations are non-cancellable and payments are non-refundable. The subscription fee is payable in full thirty (10) calendar days after the invoice date unless otherwise stated in the registration confirmation and unless payment has already been settled electronically during the registration period in advance. Populary may charge the Advertiser an administrative processing fee in connection with certain transactions that the Advertiser elects not to pay by credit card payment.
6.4 The Advertiser may only offset counterclaims against claims of Populary if the Advertiser’s counterclaims are undisputed or established by a court judgment. The Advertiser can only exercise a right of retention if its counterclaim is based on the same contractual relationship.
7. Termination, Suspension and Refund
7.1 Unless otherwise agreed the Advertiser shall be entitled to terminate the subscription at any time for convenience.
7.2 The right to terminate the subscription for good cause shall remain unaffected. That shall particularly apply in case there are circumstances which jeopardise the proper performance of the contractual relationship, in particular, in case the Advertiser infringes any of its obligations according to these T&Cs. In such case each party shall be entitled to terminate the subscription (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach by the end of the thirty (30) day period, (ii) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder.
7.3 If there is no technical functionality to terminate the subscription in the Platform, the termination has to be declared in written form. A termination for good cause can only be declared in writing. Email is sufficient for this purpose.
7.4 Each advertising campaign may be cancelled with immediate effect using the respective technical dashboard functionalities – if any – or by written letter or email. Cancellation of an advertising campaign is subject to the following cancellation fees
7.5 Upon termination of the subscription by the Advertiser according to 7.2, Populary will provide to the Advertiser a pro-rata refund of subscription fees for the remainder of a terminated subscription term period. The same applies in case Populary is permanently unable to provide its services, in particular in case the operation of the Platform became impossible to Populary .
7.6 In case Populary terminates for good cause, Populary for compensation of its damages claims against the Advertiser is entitled to keep up to 75 % (seventy-five percent) of all advertising campaign funds still credited to the Advertiser’s account. The Advertiser remains free to prove that no or only substantially lower damage has been incurred.
7.7 Populary may, with prior or concurrent notification to the Advertiser, suspend or limit access to the Platform if payments owed by the Advertiser are thirty (30) or more days overdue (or ten (10) or more days overdue in the case of credit card or other electronic payments). For the avoidance of doubt the suspension shall not result in the expiry of the claim to the continued payment of any outstanding fees. Populary shall, however, provide the Advertiser with the agreed services, once all payments have been settled in full.
8. Defects and Limitation of Liability
8.1 We shall be liable for defects of our services as described in § 4 according to the statutory provisions. The Advertiser is not entitled to a specific get-up of the Platform or any specific services other than determined in this T&Cs. The Advertiser understands that the Platform may be subject to amendments, updates and/or upgrade and, thus, the Advertiser does not have any claim against Populary to reverse any amendments, updates and/or upgrades in case the Advertiser does not agree with the amendments, updates, and/or upgrades. Thus, the Advertiser cannot claim that a given state or functional range is maintained or achieved. In case of any defects please contact our support team for further assistance.
8.2 We reserve the right to temporary takedown the Platform or parts thereof in case we reasonably conclude that the Advertiser, Creators or any other third are using the Platform to engage in (a) denial of service attacks, spamming, (b) improper uses according to these T&Cs, (c) illegal activity, and/or (d) actions that are causing immediate and material harm to Populary or others. Any suspension or takedowns in accordance with the sections 4.6 (vii) or 5.11 shall not be deemed as a defect.t.
8.3 Apart from a violation of material contractual duties, Populary will only be liable to the Advertiser in the event of intent and gross negligence. “Material contractual duties” means contractual duties, the compliance with which makes the proper performance of the subscription possible in the first place and in relation to which the Advertiser may regularly rely on their compliance. To the extent that Populary is liable for slight negligence, the liability for material damage and pecuniary loss will be limited to the typical and foreseeable damage. Any liability for other direct or consequential damage is excluded.
8.4 The aforementioned limitations of liability do not apply in the event of a violation of life, body or health, a fraudulent concealment of a defect, the assumption of a guarantee or procurement risk, and for liability under the German Product Liability Act.
8.5 To the extent that a liability of Populary is excluded or limited, this also applies to Populary directors, employees, representative and agents.
9. Data Privacy and Safety
9.1 The Advertiser represents and warrants complying with the statutory data privacy provisions applicable to the individual advertising campaign. That particularly applies to the collection, storage and processing of personal data through the respective advertisement campaign. You acknowledge that you are fully responsible to always receive the required consent (if any) to use and process the personal data of third parties for the scope and the extent of your intended use.
10.1 The parties shall not disclose to any third party any confidential information of the other party including but not limited to the subject and the concrete get-up of the advertisement, any data (including any usage data and compilations thereof), information or software relating to the Platform; and/or any other information designated in writing, or identified orally at the time of disclosure, by the disclosing party, as “confidential”.
10.2 The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party’s confidential information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of the confidentiality obligation the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
10.3 This confidentiality obligation shall survive any termination of the contractual relationship between the Advertiser and Populary .
11.1 All or any of Populary rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the Platform in a merger, acquisition or sale of all or substantially all of Populary assets.
11.2 The Advertiser is not entitled to assign or transfer any or all of its rights under these T&Cs without the prior written consent of Populary .
11.3 If any provision of the T&Cs shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from the T&Cs and shall not affect the validity and enforceability of the remaining provisions.
11.4 No oral side agreements were made. Any amendments or supplements to these T&Cs must be in writing to be effective. This applies also to the cancellation of this written form requirement. Any changes, amendments or the abrogation of the Agreement (partly or entirely) require written form (letter, fax or e-mail); the requirement of written form can only be waived in written form.
11.5 We reserve the right to amend the present T&Cs at any time. The Advertiser will be notified of changes to the T&Cs in appropriate form through the Platform or via email. The Advertiser may dispute changes to the T&Cs within a time period of two weeks following receipt the notification of the changes and the possibility of taking notice thereof. The changes to the T&Cs become binding in the event that the Advertiser does not dispute the changes within the above-mentioned time period or continues to use the Platform after having received the notification of the changes to the T&Cs without having disputed the changes. We will inform you on the aforementioned legal effect simultaneously with our notification of the intended changes to these T&Cs. If the Advertiser disputes the changes in time, each party may terminate the Agreement with one month’s prior notice. Until termination, the T&Cs in their former version will govern the Advertiser’s relationship with Populary .
11.6 The courts of Potsdam, Germany, shall have exclusive jurisdiction.
11.7 This T&Cs, the use of the Platform as well as the contractual relationship between the Parties shall be governed and interpreted according to the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law is excluded.
§ 1 Introduction
1.1 The following terms and conditions (“T&Cs”) apply between Populary UG (haftungsbeschränkt) (“Populary”) and the Creator as identified in § 2 below (“Creator”).
1.2 The T&Cs and any applicable orders placed by the Creator shall be collectively known as the “Agreement”. Terms and conditions of the Creator do not become part of the Agreement, unless Populary has accepted them in writing.
1.3 The Creator shall deliver advertisements according to a brief provided by a company seeking to promote its goods or services (the “Advertiser”) through Populary and a dedicated online platform (the “Advertising Platform”) operated by Populary. The advertisements will be selected by the Creator through the Advertising Platform or individually agreed upon between the parties (the “Advertisements”) through the Creator’s account (the “Creator Account”) in a social photo sharing community (the “Social Community”).
1.4 The Creator shall receive offers via e-mail (the “Invite”) to deliver Advertisements and with instructions (the Brief) for the content (e.g. pictures, text, sound/music and/or video material – the “Work”) required for the Advertisement. The Advertisement requirements will also be made available on the Advertising Platform.
1.5 By operating the Advertising Platform, and rendering the services according to the Agreement, Populary acts only as an agent between the Advertiser and the Creator. The Advertiser itself is solely responsible for submitting advertisements through the Advertising Platform to the Creator. Populary has no influence in this regard and thus provides no guarantee that Advertisements will be available in satisfactory quantity.
1.6 Populary shall pay the Creator a consideration according to § 6, which depends on the payment Populary receives from the Advertisers.
§ 2 Registration
2.1 A Creator can become a Creator by registering an account with Populary on Populary’s website(s). This requires a “Registration Form” to be filled in, esp. with an email address, and submitted as well as the connection to the Creator’s account of the Social Community.
2.2 By filling in the Registration Form the potential Creator submits a binding offer to enter into a contract exclusively with Populary according to the T&Cs (the “Creator Offer”). All fields of the Registration Form which are marked as being “required” have to be filled in. Any statements submitted through the Registration Form must be complete and correct.
2.3 The Agreement between the Creator and Populary is concluded when Populary accepts the Creator Offer, either by declaring acceptance explicitly, or by otherwise commencing action to fulfill the Agreement.
2.4 Populary will promptly confirm receipt of the Creator Offer by sending an e-mail to the e-mail address submitted in the Registration Form. This confirmation is not a binding acceptance of the Creator Offer. The confirmation can however be sent together with such acceptance.
2.5 A potential Creator becomes a Creator as defined in these T&Cs once Populary has accepted the Creator Offer. Populary can decide in its sole discretion whether or not to accept the Creator Offer.
2.6 A potential Creator also becomes a Creator as defined in these T&Cs, when the Creator starts to deliver Advertisements.
2.7 The Creator agrees that it will deliver the Advertisements in compliance with all applicable laws, including any laws regarding the transmission of technical data and personal data. The Creator will not interfere or attempt to interfere with the proper working of the Advertising Platform or prevent others from using the Advertising Platform.
2.8 Populary reserves the right, but shall have no obligation, to review the Creator’s display of Advertisements and use of the Advertising Platform in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, administrative or governmental request.
§ 3 Delivery of Advertisements
3.1 The Creator shall deliver all Advertisements in accordance with the Agreement.
3.2 The Creator agrees to deliver the Advertisements in accordance with the Brief, including the style of the Work and the schedule for delivery (the Schedule).
3.2 The Creator undertakes not to place the Advertisements in a context which might be detrimental to Populary or its reputation (see § 4 for details with regard to the Creator Account).
3.3 The Creator must not alter or modify the Advertisements without Populary’s prior written consent.
3.4 Populary is entitled to copyright of any Work delivered through the Creator’s account for Populary in the course of an Advertisement.
§ 4 Creator Account and Promotion of it
4.1 The Creator Account must not contain any illegal or offending content.
4.2 The Creator warrants and represents that it does not include any illegal or offending content on the Creator Account. The Creator warrants and represents that it does not use illegal means to promote or advertise the Creator Account. The Creator warrants and represents not to use any means which are excluded by Populary to promote or advertise the Creator Account.
4.3 The Creator shall hold Populary harmless of any third party claims alleging the Creator Account contains illegal content.
Content which is generally illegal or offending (not exhaustive)
Content infringing any applicable laws and other legal rules with regard to youth protection, data protection, protection of personality rights, protection against insults, and public decrial.
Content which is false or misleading or which promotes illegal activities.
Content promoting or endorsing criminal activities or containing instructions for criminal activities, including but not limited to information on the production or purchase of arms, child pornography, fraud, drug trafficking, gambling, stalking, spying on trade secrets.
Content which is racist, offensive, vulgar, molesting, insulting, threatening, obscene, hateful, invasive of another person’s privacy, defaming, libelous, politically extremist, religious, violent, sexist, erotic, or otherwise harmful to underage persons, or of a touting nature.
Advertising, Marketing and Promotion which is generally illegal (not exhaustive)
Advertising, marketing or promotion material which infringes third party rights, especially third party title rights and copyright.
Material which is false or misleading.
Any other form of unfair competition.
Advertising, Marketing and Promotion which is excluded by Populary
Material which uses third party trademarks, or anything which can be confused with third party trademarks, in meta tags, keyword advertising, or as invisible text.
All measures commonly not accepted in search engine marketing and search engine optimization.
4.4 Populary neither endorses nor approves of actions performed or content made available by the Creator.
§ 5 Malicious Code
5.1 Populary takes reasonable measures to protect its systems against viruses, spyware and other malicious code (together “Malicious Code”), and shall take reasonable measures to check, or have its Advertisers check, all Advertisements delivered through its systems to the Creator, for Malicious Code. However, the Creator acknowledges that Malicious Code can never be completely prevented. It is the Creator’s responsibility to protect all data stored on its systems against unauthorized access, and data loss. The Creator shall make its users waive, as far as legally permissible, all potential claims against Populary based on Malicious Code, and inform its users as to appropriate measures to protect their systems.
5.2 Unauthorized third parties may send e-mails under the name of Populary, without Populary’s knowledge or consent, and such e-mails may contain Malicious Code or links to web content, which in turn, contains Malicious Code. Populary cannot prevent such behaviour. The Creator shall, therefore, recommend its users to check all incoming e-mail for Malicious Code prior to opening them.
§ 6 Consideration
6.1 The Creator receives a payment based on the number of followers at the point of delivering the Advertisements, the quality of the photo feed and/or other events performed in connection with the display of advertisements through the Creator Account, as in each case determined by Populary based on its reports, unless other agreements have been made in writing. No ancillary verbal agreements shall be valid.
6.2 The payment is subject to an unspecified reduction if Populary deems the Work unsatisfactory in relation to the Advertisement requirements outlined in the Brief, including the Schedule.
6.3 The payment shall be made available to the Creator 30 days after the end date of the campaign, or on receipt of the entire payment for the campaign by the Advertiser.
6.4 Populary will generate a payment receipt (the “Receipt”) on behalf of the Creator in the form of a credit note or invoice stating the payment due to the Creator according to the applicable taxation laws. The Creator agrees that the transfer of the Receipt will be made electronically. Populary will transfer the amount within 10 days after the corresponding invoicing month. The money transfer will be made to the Creator’s preferred payment account that is stated in the Creator’s user account settings.
6.3 If the payment amount does not amount to 100 USD, Populary is authorized to not disburse the payment amount immediately but with the amount due in the following invoicing month or else if the accumulated amount due is at least 100 USD.
6.4 If the Creator does not raise any objections within two weeks upon receipt of the credit note and/or invoicing and/or receipt of the payment, it is deemed to be accepted.
§ 7 Content of Advertisements
7.1 Populary does not allow Advertisers to transmit any Advertisement through the Advertising Platform to the Creator that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, or to link their Advertisements to such content. Upon being informed thereof, Populary shall promptly remove any Advertisement containing such content. The Creator does not have any other claims against Populary. The Creator acknowledges that Populary does not constantly control all Advertisements and the respective links, as Advertisers have the possibility to upload Advertisements.
§ 8 Technical and Commercial Limitations; Changes; Availability
8.1 Unless otherwise provided for in these T&Cs, Populary provides the Advertising Platform through which it renders it services on an “AS IS” and “AS AVAILABLE” basis.
8.2 Populary offers the Creator use of its Advertising Platform over the Internet subject to technical and commercial limitations as defined below.
8.3 Populary may modify the Advertising Platform without prior notice. Therefore, the Creator is granted a right of use only for the then current version. The Creator may reduce or cease its use of the Advertising Platform in the event that it is modified.
8.4 Populary reserves its right to cease operation of the Advertising Platform at any time, without giving reasons or prior notice. Any balance owed to the Creator will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
8.5 Populary will use commercially reasonable efforts to make the Advertising Platform available to the user. In the event of a partial or total failure of the Advertising Platform which results in an advertising campaign that could not be fully delivered within the agreed timeframe, Populary is entitled to deliver the Advertisements later on, without any additional claims on behalf of the advertiser.
§ 9 Termination
9.1 The Agreement is entered into for an unlimited period of time, unless otherwise agreed upon between the parties.
9.2 Each party has the right to terminate the Agreement at any time with immediate effect, unless otherwise agreed upon.
9.3 The parties remain free to terminate the Agreement for cause at any time.
9.4 In case Populary is responsible for a termination of the Agreement for cause, all outstanding amounts shall be paid out. The Creator shall not have any other claims, unless otherwise provided in the Agreement.
9.5 Populary may terminate the Agreement in particular for, but not limited to, the following reasons: – The Creator culpably breaches any legal rule, or the Agreement, and such breach remains unremedied despite written notice (possibly via e-mail); a written notice is not required in case of a severe contravention, i.e. when it would be unreasonable that Populary remains bound by the Agreement. – The Creator encourages Fraudulent Actions (as defined in § 18). – The Creator has not used its account for six months despite a reminder.
9.6 Cases in which it would be unreasonable for Populary to remain bound by the Agreement generally include infringements of Sect. 3.2, 4.1, 4.2 and 4.3 of the T&Cs.
9.7 If there is no option to terminate the Agreement within the Advertising Platform, the termination has to be declared in writing. A termination for cause can only be declared in writing. E-mail is sufficient.
9.8 After the termination has come into effect, the Creator shall stop the implementation of the Advertisements. The Creator will not earn any consideration for Advertisements displayed after the termination has come into effect.
§ 10 Claims Based on Defects
10.1 Populary grants the Creator access to the Advertising Platform. The Creator cannot claim that a given state or functional range is maintained or achieved. The Creator acknowledges that the Advertising Platform, as any other software, can never be completely free of bugs. Therefore, the Advertising Platform can only be considered to be defective if its usability is affected severely and for a significant period of time.
10.2 Populary is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations, which are not carried out by Populary.
10.3 Populary does not assume any warranties.
§ 11 Indemnification
11.1 Each party agrees to indemnify and hold the other party harmless from and against any losses, costs, liabilities and expenses, including reasonable attorneys’ fees, arising out of any third party claims resulting from the breach of the warranties made by such party in the Agreement.
11.2 The indemnifying party has the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party’s defense of such claims.
§ 12 Limitation of Liability
12.1 Populary is not responsible for damages, unless they are caused intentionally or by gross negligence.
12.2 Liability for breach of a cardinal obligation or an essential obligation is limited to the damage which could have been foreseen.
12.3 The damage which can be foreseen is limited to USD 2,500.00 per Creator.
12.4 The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of Populary and their members.
12.5 The aforementioned limitations of liability determined in Sect. 12.1 to 12.4 do not apply to the liability for personal injury of life, body, and health. 12.1 and 12.4 do not apply in case the damage is the result of a breach of a cardinal obligation, an essential obligation or a guarantee. Populary remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
§ 13 Data Protection
13.1 The Creator acknowledges that Populary and/or the Advertisers may store user data and usage data, which they may collect automatically.
13.2 The Creator acknowledges that Populary and/or the Advertisers may use such data to optimize their Advertisements, to better target users with Advertisements which better match their interests, and for statistical purposes, market research, and the promotion of their respective goods and services.
§ 14 Protection of Login Data
14.1 The Creator shall keep all access data (login, passwords etc.) for the Advertising Platform (“Access Data”) strictly confidential. The Creator shall promptly inform Populary in case it learns or suspects that an unauthorized third person is in possession of the Access Data.
14.2 In case Populary has reason to believe that an unauthorized third party is in possession of Access Data, Populary may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respective account. Populary will promptly inform the Creator and will, upon request, communicate the new Access Data to the Creator without undue delay. The Creator cannot claim to have its initial Access Data restored.
14.3 In case a third party uses, through the Creator’s fault, the Creator’s Access Data, the Creator is liable for all such actions, and for damages. In such event, all access through the Creator’s Access Data shall be considered as an access by the Creator.
§ 15 Access to these T&Cs – Changes and Further Notices – Communication
15.1 Each log-in to the Advertising Platform is subject to the T&Cs. The T&Cs can be printed or saved on storage media.
15.2 Populary may make changes to these T&Cs (including amendments) at any given time, for the future, if this should prove necessary (in particular to reflect changes in the Advertising Platform or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Creator is not disadvantaged contrary to good faith.
15.3 The Creator will be notified of changes to the T&Cs in appropriate written form (possibly via e-mail). Populary will notify the Creator on the Advertising Platform, or via e-mail.
15.4 The Creator may dispute changes to the T&Cs within a time period of two weeks following receipt the notification of the changes and the possibility of taking notice thereof. It is recommended that the Creator submit its opposition in writing (for example via e-mail).
15.5 The changes to the T&Cs become binding in the event that the Creator (i) does not dispute the changes within the above-mentioned time period or (ii) continues to use the Advertising Platform or (iii) continues to place Advertisements on the Creator Site, after having received the notification of the changes to the T&Cs without having disputed the changes.
15.6 Populary will inform the Creator about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Creator about the changes to the T&Cs.
15.7 If the Creator disputes the changes in time, each party may terminate the Agreement with one month’s prior notice unless termination is possible at any time according to § 9. Until termination, the T&Cs in their former version will govern the Creator’s relationship with Populary. The Creator does not have any other claims against Populary.
15.8 Unless otherwise provided in the Agreement, Populary will usually communicate with the Creator via e-mail. The Creator shall make sure that it receives all e-mails sent by Populary to the address submitted in the Registration Form (see Sect. 2.2), or at a later date. The Creator will in particular configure the spam filter accordingly and regularly check all incoming e-mail under this address. Populary may choose any other appropriate means of communication.
§ 16 Ownership of Rights
16.1 The Creator acknowledges that by registering, it grants Populary the right to name the Creator as a reference for Populary’s services. The Creator may revoke this right at any time, in writing, for any future use.
16.2 The Creator acknowledges that Populary will provide third-party Advertisements using the Advertising Platform for display on the Creator Site pursuant to the Agreement.
16.3 The Creator agrees that it will use any data (including any usage data and compilations thereof), information or software, provided by Populary to the Creator, only for the purpose of providing and optimizing Advertisements for Populary on the Creator Site according to the Agreement.
16.4 Populary will retain all rights, title, and interests in and to the Advertising Platform (except for any licensed content and third-party Advertisements included therein), including all data (such as any usage data and compilations thereof), information and software related thereto. The Creator acknowledges that the software, information, content and data related to the Advertising Platform (such as any usage data or compilations thereof) are protected for Populary under copyright and similar rights and may contain trade secrets or other intellectual or industrial property owned or licensed by Populary.
16.5 The Creator agrees not to modify, alter, create or copy derivative works of the provided data, information, content or software of the Advertising Platform. Populary does not grant to the Creator any license, express or implied, to the intellectual or industrial property of Populary or its licensors, except for a limited right of use according to the terms and for the duration of the Agreement.
§ 17 Non-disclosure
17.1 The parties shall keep confidential all “Confidential Information” received from the other party or otherwise received under the Agreement.
17.2 Confidential Information shall include the Advertisements prior to publication, any data (including any usage data and compilations thereof), information or software relating to the Advertising Platform; and/or any other information designated in writing, or identified orally at the time of disclosure, by the disclosing party, as “confidential”.
17.3 After and during the term of the Agreement, neither party will use for any purpose or disclose to any third party, any Confidential Information of the other party. Any exception to this must be obtained in advance.
17.4 The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party’s Confidential Information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of this § 17 by the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
§ 18 Abuse and Fraud
18.1 Populary will take reasonable measures to prevent “Fraudulent Actions”. The Creator will support Populary in preventing Fraudulent Actions. The Creator warrants not to endorse or sponsor any Fraudulent Actions.
18.2 Fraudulent Actions include, without limitation, all actions listed as Fraudulent Actions on Brandnew’s website or those which are performed by a bot, script, automated program or similar device in relation to any Advertisements provided by Populary. Fraudulent Actions also include all actions generally considered fraudulent or abusive according to generally accepted principles of online marking, such as those prohibited by the leading programs for affiliate marketing and keyword advertising.
18.3 Fraudulent Actions include, without limitation, any third party, including, without limitation, the users of the Creator Site, generating queries, completing surveys, or completing referrals through any automated means or with any false information.
§ 19 Miscellaneous
19.1 Populary’s failure to act with respect to a breach by the Creator does not waive Populary’s right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by Populary under the Agreement shall be deemed effective unless delivered in writing and signed by a duly appointed representative of Populary.
19.2 All or any of Populary’s rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the Advertising Platform in a merger, acquisition or sale of all or substantially all of Populary’s assets.
19.3 The Creator must not assign or transfer the Agreement or any or all of its rights thereunder without the prior written consent of Populary.
19.4 Section headings used in the T&Cs are for convenience only and shall not affect the interpretation of the T&Cs.
19.5 If any provision of the T&Cs shall be held by a court of competent jurisdiction to be unlawful, void, or for any reason unenforceable, then in such jurisdiction that provision shall be deemed severable from the T&Cs and shall not affect the validity and enforceability of the remaining provisions.
19.6 Any changes, amendments or the abrogation of the Agreement (partly or entirely) require written form (letter, fax or e-mail); the requirement of written form can only be waived in written form.
19.7 The courts of Potsdam, Germany, shall have exclusive jurisdiction.
19.8 The laws of the Federal Republic of Germany apply for all contracts concluded by Populary on the basis of the T&Cs and any claims arising therefrom, and for all claims related to the use of the Advertising Platform. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
19.9 The English version of these T&Cs is decisive.
Potsdam, 16th August 2016
Populary UG (haftungsbeschränkt)
Am Kanal 16-18
firstname.lastname@example.org • www.populary.net • Amtsgericht Potsdam: HRB 29056 • Managing Director: Astrid Hernández
Berlin, July 2016
Populary UG (haftungsbeschränkt) – Am Kanal 16-18 – 14467 Potsdam – Germany – email@example.com – www.populary.net – Amtsgericht Potsdam: HRB 29056 – Managing Director: Astrid Hernández