1.1 The following General Terms and Conditions (hereinafter “GTC”) apply to all contracts concluded between the respective local We Are Era entity (hereinafter "We Are Era”) and the client (hereinafter "Contractual Partner”) (We Are Era and Contractual Partner hereinafter referred to collectively as the “Parties”) on the performance of services as part of marketing projects, in particular in the area of influencer marketing (hereinafter referred to as “Project” or “Campaign”). These GTC cover all primary and secondary services.
1.2 We Are Era reserves the right to adjust these GTC from time to time. The most recent version is the one valid for the contracted performance of services. If the adjustments include significant changes, which affect the rights and duties of the Contractual Partner, We Are Era shall notify the Contractual Partner before the change takes effect by means of appropriate methods, for example, via the website of by email. Unless stated otherwise, updates of the GTC shall become effective on their publication on the website. The Contractual Partner is aware that the further performance of services, after an update of these GTC has been published, means that the Contractual Partner voluntarily declares its agreement to the binding applicability of the updated GTC.
2.1 The object of the agreement is the service respectively defined in the submitted quote (hereinafter referred to as “Quote”). The Quote includes in particular details as to the kind and scope of the services, the performance periods, and the consideration to be paid by the Contractual Partner. If duties of the Contractual Partner to cooperate should be required for the implementation of the Projects, these will also be included in the Quote. The Quote will be submitted in writing (email is sufficient).
2.2 By acceptance of the written Quote, the contract between We Are Era and the Contractual Partner will be concluded on the basis of the terms stated in the Quote and its acceptance and with inclusion of these GTC. The acceptance of the Quote shall be declared in writing (email is sufficient).
2.3 If the Contractual Partner itself should be contracted by a customer (hereinafter referred to as “Customer”) for the implementation of the Campaign, We Are Era shall take this into account and, in particular, include the products and service of the Customer in the Campaign insofar as they are part of the Quote. However, the party contracting with We Are Era, which has all related rights and duties, is the Contractual Partner. The Contractual Partner shall ensure that the requirements and wishes of the Customer are communicated in an appropriate manner so that We Are Era are able to implement them.
2.4 If the object of the agreement is the performance of services by one or more influencers or other persons, who command a certain presence in the media based on their publicity, the validity of the contract shall be subject to the condition precedent of the agreement by all involved influencers or other persons. We Are Era shall inform the Contractual Partner of this agreement as soon as it has been received (email is sufficient). The condition shall be deemed fulfilled only from the date on which the notification is received.
2.5 Insofar as We Are Era have determined certain key indicators such as, in particular, gross followers, impressions or reach in the Quote, these shall be subject to the condition precedent of confirmation from the involved influencers.
2.6 It remains reserved for We Are Era to contract third parties for the performance of its services. The agreement of the Contractual Partner is not required for this purpose.
2.7 Explicit provisions in the Quote or in the acceptance of the Quote, which differ from these GTC, shall take priority.
The terms contained in these GTC and in the Quote have the meanings defined below.
3.1 Gross Followers: “Gross Followers” means the number of followers per social media channel or in reference to all channels of the influencers, as determined in the Quote and as at the date of the Quote. Gross Followers shall become part of the contract only if this is expressly stated in the Quote.
3.2 Content Plan: “Content Plan” is a schedule and content summary, which is drafted after the joint signing of the contract by We Are Era and the Contractual Partner, wherein the services to be performed by We Are Era and the influencers are defined in more detail. The Content Plan can also include the dates and periods of the publication of the services. If defined in the Quote, the Content Plan shall become part of the contract upon the binding commitment of the involved influencers. This also applies to potentially included dates of publication. Deviations from the Content Plan are possible at any time, but they require the agreement of We Are Era, the Content Partner, and the influencer.
3.3 Impressions: “Impressions” means the frequency of how often a content is shown to a user. The measurement of Impressions depends on the concrete content, the corresponding media type and the requirements of the social media channels.
3.4 Content: “Content” means the materials to be realised, which are named in a Quote of We Are Era. Contents may be photos, videos, text messages or contributions, also in combination with or entirely as a photo or video, product placements in editorial formats, sponsor references, promotional videos or advertisements. Also other services, which are performed by the influencers or in collaboration with them and which are enabled, for example, by the technical functions of the social media platforms, are understood to mean Content for the purposes of these GTC.
3.5 Campaign Period: The “Campaign Period” is the span of time named in the Quote of We Are Era, during which the agreed services or parts of them are performed, in particular published or made otherwise accessible. The Campaign Period is stated in the Content Plan.
3.6 Customer Content: “Customer Content” means Content (e.g. trademarks, graphics, videos, music, illustrations and products of the Contractual Partner, etc.), which is made available or forwarded to We Are Era by the Contractual Partner for the creation of the Content.
3.7 Posting: “Posting” means the publication of the Content and also other messages, contributions and similar services for drawing attention by the influencer on social media channels or other digital platforms.
3.8 Reach: “Reach” means the total number of the actually achieved individual contacts with users per Posting. The Reach measurement is dependent on the concrete Posting and the requirements of the social media channels. Access to the data giving information on Reach cannot be granted in all cases.
3.9 Social Media Channels: “Social Media Channels” are the channels and/or profiles of the influencers named in a Quote of We Are Era on the websites and/or mobile apps of the services "YouTube", "Facebook", "Instagram", "Twitter", "Twitch", "TikTok", "Snapchat" or similar platforms and services.
4.1 We Are Era shall perform the services contained in a Quote. The way and manner of the service performance shall be at the discretion of We Are Era. If agreed in the Quote, the services shall be performed with the contribution of influencers. If services shall be performed for shooting videos, filming or other production works with the involvement of influencers, We Are Era shall ensure that the influencers are available for the number of shooting or production days named in the Content Plan. Unless agreed otherwise in the Quote, We Are Era shall conclude contracts with all participants directly on its own. The Campaign Period, the number of services and the basic content of the services are defined in the Quote as well as in the Content Plan. The Content shall be produced consistent with the quality that is customary in the market. If the Contractual Partner wants the implementation to be of higher quality or conform to different technical specifications, this shall be done only if this is stated in the Quote. This shall apply also and in particular to special forms of use and publication.
4.2 The Contractual Partner shall ensure that all information required for the service performance is received on the dates agreed between the Contractual Partner and We Are Era. If the involvement of the Contractual Partner’s Content or Customer Content should be required for the service performance, these shall be transferred by the Contractual Partner by the dates requested by We Are Era. We Are Era shall not be held responsible for the consequences if the transmission is not on time.
4.3 All services of influencers shall be organised and coordinated by We Are Era. We Are Era shall also monitor the compliance with the legal regulations and the rules of the social media platforms by the influencers. Liability of We Are Era for any violations of the aforementioned regulations and policies is excluded, however. We Are Era shall ensure in particular only that the publication, the Posting and all services for drawing attention by the influencer as agreed in the Quote are in accordance with the Content Plan. Postponements or changes shall be notified on time to the Contractual Partner.
4.4 If provided in the Quote, We Are Era shall also perform all required services relating to the production of the Content. In addition, the development, the actual production and post-production can also be included in this. We Are Era may freely decide how to perform all production-specific services. We Are Era shall decide at their own discretion whether individual or all production services will be performed by subcontractors. If production services are performed by service providers other than We Are Era at the Contractual Partner’s request, the contract shall be concluded and the invoicing be issued in the way as determined in the Quote.
4.5 If, due to the kind of the type of the service, an acceptance procedure comes into question, We Are Era shall make Content that are ready for acceptance available to the Contractual Partner for the acceptance procedure after they are completed. Unless defined otherwise in the Quote, the Contractual Partner shall have overall two (2) opportunities to notify We Are Era of change requests regarding the respective Content. Each change request shall be notified to We Are Era in writing within two (2) working days from receipt of the Content (email is sufficient). Otherwise, the Content will be deemed accepted and be published on the date named in the Content Plan. Where the change requests relate to changes that can be made in the course of post-production (different cut, effects, use of previously produced film material, etc.) or changes, which relate to an inadequate and deviating implementation by the influencer of the requirements that have been determined in the briefing, We Are Era shall make these changes without additional costs for the Contractual Partner, provided that they represent only minor additional expense, or ensure that the influencer will make these changes. We Are Era shall have a unilateral right of to decide regarding the evaluation of the expense. Where the requested changes are associated merely with a delay in time and/or with not inconsiderable additional effort, in particular if a repeated production of the Contents or more elaborate adjustments in the course of post-production are required, We Are Era shall inform the Contractual Partner of the expected delay and/or the additional expenses that are expected to arise in the process. Only upon a release given for this and with a cost assumption declared by the Contractual Partner will We Are Era implement the requested changes. The additional expenses shall be borne by the Contractual Partner without delay and against regular invoicing. We Are Era shall not be liable for any delay in time resulting from this.
4.6 Advertising: If the services to be performed are advertising videos, promotional posts or other marketing Contents, We Are Era shall ensure that the Content will be published in the agreed upon social media channels, after release is granted by the Contractual Partner, ensuring further that they will be accessible during the Campaign Period on the social media channels named in the respective Content Plan. The respective publication dates for the Content are defined in the Content Plan. Moreover, the Contractual Partner acknowledges with agreement that We Are Era and/or the influencers are obligated according to the respectively applicable statutory provisions to refer to the advertising character of the Content, in particular by means of a corresponding unmistakable identification as advertising. We Are Era does not accept any liability for deletions or blockings of Content, which are initiated by third parties and not based on rights infringements that are within the responsibility of We Are Era and/or the influencer.
4.7 Product placements: Insofar as the services to be performed are product placements, the Contractual Partner acknowledges with agreement that product placements are subject to legal regulations and hereby waives taking influence over the ways and manner of the placement of the Contractual Partner’s or Customer’s products that are the objects of the contract or interfering with the editorial responsibility and independence of We Are Era and/or the involved influencer. The Contractual Partner also acknowledges with agreement that We Are Era and/or the influencer may be obligated according to the respectively applicable legal regulations to discharge duties under trademark and advertising regulations as relates to the Content. This applies in particular to the duty to identify in a suitable place that the Content is implemented with the support from the Contractual Partner and that they are product placement. This can be done, for example, by displaying the “P” symbol and the wording “supported by product placements.”
4.8 Sponsoring: Insofar as the services to be performed are sponsoring, the Contractual Partner acknowledges with agreement that the sponsoring is subject to legal regulations and hereby, on this day already, waives taking influence over the Content and publication or programme placing of a sponsored Content in such a manner that the editorial responsibility and independence of We Are Era and/or the involved influencer are impaired. For sponsoring, We Are Era or the influencer shall point out the financing by the Contractual Partner or its Customer clearly in all reasonable brevity and in an appropriate manner, in accordance with the respectively currently valid legal regulations, for example, in the beginning or at the end of the Content. Besides or instead of the name of the Contractual Partner or its Customer, also the company logo or a trademark, another symbol of the Contractual Partner or its Customer, a reference to Contractual Partner or Customer products or a corresponding differentiating sign can be displayed.
4.9 Music: If Content includes music, We Are Era shall use exclusively music for which the required rights of use can be acquired and which are not held by copyright collecting societies (in particular German Society for musical performing and mechanical reproduction rights (GEMA)). Should music be used on request of the Contractual Partner or its Customer, whose rights of use are held by copyright collecting societies, the Contractual Partner itself shall satisfy the claims for remuneration of the copyright collecting societies.
4.10 If the Quote so defines, We Are Era shall provide the Contractual Partner with reporting and/or interim reports on key indicators such as Reach, Impression and potential other key indicators at defined intervals in the Campaign Period. The types of key indicators are determined in the Quote.
5.1 We Are Era grants the Contractual Partner the rights of use as defined in the Quote. If agreed in the Quote, We Are Era shall grant the Contractual Partner in particular the right to make the Content publicly accessible and take advantage of all forms of exploitation relating to it, and also transfer these rights to third parties in particular such as the Customer. According to the provisions of the Quote, the rights are granted as exclusive or non-exclusive rights for the Campaign Period or beyond, locally limited to the territory of the Federal Republic of Germany or locally unlimited, and limited to certain media or without limitation in this respect. If agreed in the Quote, the Contractual Partner shall be entitled in particular to use the Content within the limits of the purpose of use, as defined in the Quote, for the implementation of the Campaign. Insofar as agreed, this shall include the right to reproduce, replay, render publicly, provide public access to and disseminate Content in full or in parts at its own discretion personally by itself or through third parties in connection with the Campaign. Where agreed, in particular the rights to provide public access, public rendition and retrieval shall be transferred, each independently from the type/form/channel/scope of the transmission, exploitation or storing, and independently from the reception equipment and the rights relationship with the end user.
5.2 To the extent it is determined in the Quote, the Contractual Partner shall be granted rights, including the right of further transfer to third parties, to integrate the Content and Postings in its own Social Media Channels, share them, link to them or publish and disseminate them in another related manner. This right is granted for the Campaign Period or beyond. A publication in the aforementioned sense, however, requires the prior written release from We Are Era (email sufficient).
5.3 Further rights to use the Content beyond the ones expressly named in the Quote of We Are Era shall not be granted to the Contractual Partner and/or its Customer. The Contractual Partner and its Customer shall be permitted to use Content, in particular video material, beyond the extent agreed in the Quote, only upon explicit written permission being given by We Are Era and, if applicable, an accordant further agreement on remuneration. We Are Era are not obligated to grant such agreement.
5.4 If the Contractual Partner or the Customer exceed the scope or the kind of the granted rights of use as defined in the Quote, the Contractual Partner shall be responsible for any resulting proprietary rights infringements in consequence of this and indemnify We Are Era from and against claims of third parties, including influencers, on first request and refund the costs for the adequate legal defence.
5.5 If the Contractual Partner provides We Are Era with Customer Content and/or Content of third parties (e.g. recordings of musical performances, photos, signs, texts, videos, etc.), which are used by We Are Era within the scope of the contractual cooperation, the Contractual Partner shall indemnify We Are Era and the influencers from all claims brought by third parties in connection with the use of the Customer Content, on first request and refund the costs for the adequate legal defence. If the Contractual Partner does not notify of any limitation and/or obligations (e.g. requirements to give name credits) in writing, the rights to the Customer Content shall be granted to We Are Era without limitations in time, region and content, whereas non-exclusively. Any Content produced by using Customer Content can be used without limitations by We Are Era and/or the influencers, even after the termination of the contract, if no limitations have been notified when they are made available for use.
5.6 Any use of ideas, presentations, concepts or other documents drafted by We Are Era and/or the influencer in the course of the collaboration by the Contractual Partner beyond the scope of the respective Quote is prohibited. These are the intellectual property of We Are Era or the influencers and subject to the applicable copyright laws. Ideas and rough ideas can only be realised if a prior contractual agreement is concluded with We Are Era. Reproduction in full or in part and any transfer to third parties is prohibited. The Contractual Partner shall be liable for the damages resulting in case of a prohibited use or transfer to third parties.
5.7 Irrespective of the rights to be granted to the Contractual Partner, We Are Era shall have a right to use the produced Content or their components for self-promotion, thereby entitling We Are Era to refer to the Content or the Campaign, including the name and image of influencers, in announcements or presentations on our social media channels and websites, among other places.
6.1 As consideration for the fulfilment of the services to be performed by We Are Era or the influencers under these GTC and the Quote, and the transfer of rights according to Section 5, the Contractual Partner shall pay to We Are Era the fee defined in the Quote plus the value added tax.
6.2 The services shall be invoiced according to the due dates set in the Quote. Otherwise, the services shall be due when they are performed by We Are Era and can be invoiced, respectively, by We Are Era.
6.3 The respective invoice total shall be due for payment without deductions at the latest within fourteen (14) working days after the invoicing.
6.4 If the Contractual Partner is in delay with a payment, We Are Era shall be entitled to suspend the further continuation of the Campaign agreed under the project contract until the receipt of payment and make it contingent upon the payment of an appropriate advance on the remuneration to be expected. The Campaign Period shall then extend accordingly. We Are Era shall also have a right to withhold the already produced Content on grounds of default. A right of withholding also applies in all cases of a significant deterioration of the Contractual Partner’s financial situation. We Are Era have the right to claim interest in the amount of 9 percentage points above the base interest rate. Claims of further damages remain expressly reserved. The Contractual Partner’s right to prove a lesser default damage remains unaffected from this.
6.5 Claims of the Contractual Partner based on incorrect invoices shall lapse by limitation after one (1) year, calculated from the end of the year in which the incorrect invoice from the Contractual Partner was received. This does not apply to damage compensation claims based on incorrect invoices in result of gross negligence or intent. In this respect, the statutory limitation periods apply.
6.6 If agreements on bonuses, discounts and rebates of any kind exist between the Contractual Partner or companies affiliated with the Contractual Partner, on the one hand, and We Are Era or companies affiliated with We Are Era, on the other hand, these shall not apply to this contract. This does not apply if such agreements have been expressly negotiated.
6.7 The Contractual Partner shall have rights to offset payments only if its counterclaims are established as final and absolute, or if they are uncontested or acknowledged by We Are Era. Furthermore, it is entitled to claim a right of withholding only insofar as its counterclaim based on the same contractual relationship is established as final and absolute or if it is uncontested or acknowledged by We Are Era.
7.1 The contract shall take effect upon the signing of the Quote submitted by We Are Era and end on expiration of the Campaign Period named in the Quote or upon the end of the grant of rights according to the respective Quote and payment of the contractual remuneration according to the Quote in connection with Section 6 of these GTC, whichever is the later date, without requiring a notice of termination. The right of ordinary termination is precluded.
7.2 Both Parties’ right of extraordinary termination of the contractual relationship for good cause remains unaffected.
7.3 The Contractual Partner shall be granted the right to withdraw from the signed contract up until the start of the Campaign. In the event the right of withdrawal according to sentence 1 above is invoked, We Are Era shall have the right to be refunded its costs, which shall be proven on the basis of a discontinuation calculation that also considers expenses, which have been incurred by We Are Era in connection with the implementation of the entire Campaign. If We Are Era does not prove the costs based on a discontinuation calculation, the following calculation of the costs to be refunded by the Contractual Partner shall apply: (i) in case of withdrawal up to nine (9) weeks before the start of the Campaign, 25% of the agreed remuneration, (ii) in case of withdrawal up to six (6) weeks before the start of the Campaign, 50% of the agreed remuneration, (iii) in case of withdrawal up to six (6) weeks before the start of the Campaign, 75% of the agreed remuneration and in case of withdrawal at any later point time, the full agreed remuneration. The withdrawal shall be notified in writing (email is sufficient) to We Are Era.
8.1 We Are Era generally do not assume any warranty, unless expressly determined otherwise in the Quote, for certain key indicators such as, in particular, Reach and Impressions. This also applies to the number of so-called “followers”, “subscribers” or “likes” on the Social Media Channels of the contributing influencers.
8.2 If so agreed in the Quote, We Are Era shall apply their best efforts to reach the key indicators determined in the Quote. However, We Are Era shall not be held responsible for the promotional or communicative success of a Campaign.
8.3 Insofar as measurable and quantified key indicators such as, in particular, Reach or Impressions are agreed in the Quote, the service performance in accordance with the contract will only not be given anymore from a shortfall of more than 25% below the key indicators. After the performance of the service, the same circumstances shall be taken as the basis for the measurement of the key indicators, which were taken as the basis of the prognosis of the key indicators in the Quote. If these circumstances have changed, the Contractual Partner cannot claim that the performance of services was not in accordance with the contract in case of a shortfall. We Are Era has the right to compensate a shortfall during a certain period by outperforming during another Campaign Period. In that case, a performance of services in accordance with the contract will be given. In all cases, it remains reserved for We Are Era to avoid shortfalls by providing other services to be agreed with the Contractual Partner.
8.4 Any liability of We Are Era shall be excluded for any damages directly related to this circumstance, if the Contractual Partner or its Customer should take influence in any way on the implementation of their Content affecting their legitimacy, in particular, as concerns their permissibility under competition and advertising regulations. The same applies to actions by the Contractual Partner or Customer which constitute interference with or infringement on the editorial autonomy and independence of We Are Era or the influencers.
8.5 The Contractual Partner shall be liable to We Are Era and the influencers for losses incurred by them due to the illegitimacy of the Content and Postings under the law, in particular under competition and advertising regulations, which result from actions taken by the Contractual Partner or Customers, as well as those described in Section 8.3.
8.6 We Are Era shall only be liable for damages, including indirect damages, in particular from loss of profit - regardless of the legal grounds - if We Are Era, its legal representatives or a vicarious agent has caused the damage intentionally or through gross negligence or if an material contractual obligation has been negligently breached. Material contractual obligations are obligations whose fulfilment enables the proper execution of the contract in the first place and on whose compliance the contractual partner may rely. In the event of a breach of material contractual obligations and the occurrence of indirect damages, in particular from lost profits, We Are Era's liability to pay compensation shall be limited to the foreseeable damage typical of the contract. The above exclusions or limitations of liability do not apply to damage to life, limb or health.
9.1 We Are Era and the Contractual Partner undertake to treat all business and trade secrets, know-how and other information as confidential, which are disclosed by the respective other Party in connection with this Marketing Contract or otherwise and which are earmarked as confidential or which are recognisable to be such, for the duration and beyond the termination of this Project Agreement.
9.2 This confidentiality undertaking shall not apply to confidential information, which (i) was publicly known at the time of its disclosure or which has become publicly known thereafter without a violation of the foregoing provisions being a reason contributing to this, (ii) is disclosed by the disclosing party on an expressly non-confidential basis, (iii) was in the legitimate possession of the receiving party prior to its disclosure, or (iv) is transferred to the receiving party thereafter by a third party without violating a confidentiality undertaking. The burden of proof for such an exception shall be on the Party invoking it.
9.3 After the end of the term of this Project Agreement, each Party shall return all documents to the complete extent, which it has received from the other Party in the context of this Project Agreement or destroy all documents received from the Party upon request by this Party.
10.1 If the Parties come into contact with personal data in the course of the performance of the contract, or if such data comes to their attention or is transferred to them or made accessible to them in any other way, they shall be obligated to treat the personal data as confidential.
10.2 We Are Era and the Contractual Partner shall create the permissibility of the processing of personal data within their respective sphere of responsibility (Art. 6 GDPR) and assure the security of the data according to Art. 32 GDPR.
10.3 The Parties agree that the processing of personal data shall take place under separate responsibility. Each Party shall independently ensure, in particular, the rights of data subjects (Art. 15 to 22 GDPR) and the duties to provide information (Art. 12 seqq. GDPR) within their own area of responsibility. Regarding the aforementioned duties to provide information, the Parties agree that they will inform data subjects of a transmission to the other Party according to Art. 14 GDPR, so that Art. 15 (5) GDPR shall apply to the receiving Party.
10.4 The Parties are authorised to transfer data to third parties as defined by Art. 4 (10) GDPR and to service providers as defined by Art. 28 GDPR, if and insofar as this is required for the performance of their respective duties under this Agreement.
10.5 The liability agreements according to the service contract and these GTC shall apply to the data processing as relates to the service performance.
10.6 This obligation shall also continue to apply after termination of the Project Agreement.
The Parties undertake during the term of the contract and up to three (3) years after termination of the contract not to make any negative statements in public about the other Party, its bodies, employees, products, and/or services or the contractual collaboration. The Contractual Partners undertake to equally protect the influencers.
12.1 Every contract between We Are Era and the Contractual Partner comprises the Quote accepted by the Contractual Partner, these GTC and, if agreed in the Quote, the Content Plan, which shall then be an integral part of the contract.
12.2 The contract shall replace all prior written or verbal agreements between the Parties. Changes and amendments to the contract including these GTC require the written form. This also applies to the waiver of the requirement of the written form itself. If provisions in a Quote from We Are Era contradict the provisions contained in these GTC, the provisions in the Quote shall take precedence.
12.3 All services of We Are Era are performed exclusively on the conditions of these GTC. The GTC of the Contractual Partner shall not apply even if the Contractual Partner expressly refers to their applicability. On acceptance of the Quote from We Are Era, the Contractual Partner irrevocably waives its own GTC and recognises these GTC.
12.4 Voidness or invalidity of one or more provisions of the contract comprising these GTC and the Quote shall not result in the voidness or invalidity of the entire contract. Instead, the Parties agree to replace a void or invalid provision by such a provision, which facilitates the economic purpose of the contract in a legally permissible manner. This applies analogously in the case that the Project Agreement makes an omission in provisions.
12.5 The place of jurisdiction for all disputes arising between the Parties from the contractual relationship is the place of origin of the respective contractual We Are Era entity to the legally permissible extent. The local law of the place of origin of the respective contractual We Are Era entity applies to this contract, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
