GENERAL TERMS & USAGE CONDITIONS FOR INFLUENCERS OF WOW Tech Europe GMBH
1. General information and scope of application
1.1 These general terms and usage conditions (hereinafter “Conditions”) apply to the commercial relationship between you as an influencer and WOW Tech Europe GmbH, Friedenstr. 91a, 10249 Berlin, Germany (hereinafter “WOW Tech Europe”) for all offers, deliveries, performances and contractual relations related to WOW Tech Europe.
1.2 You receive a draft contract from WOW Tech Europe for the collaboration with you as an influencer, in which the conditions of the individual collaboration are regulated in greater detail and reference is made to these general terms and usage conditions. A contract is concluded when both you as an influencer and WOW Tech Europe, represented by its managing director Mr Johannes von Plettenberg or its authorised representative, sign the draft contract submitted in writing. The written form is also upheld by an electronic signature (e.g. using Adobe Sign).
1.3 A commercial relationship with WOW Tech Europe is only possible with influencers who are entrepreneurs as defined in Section 14, Clause 1 of the German Civil Code (“BGB”). An entrepreneur is a natural or legal entity or a business partnership with legal responsibility, which when completing a legal transaction is acting to exert their commercial or self-employed professional activity, cf. Section 14, Clause 1 of the German Civil Code.
1.4 Influencers are individuals who are at least 16 years old and who are networked on one or more social media channels or networks (specified by WOW Tech Europe) accessible on the internet (e.g. YouTube, Facebook, Instagram, etc.) with a significant number of friends or followers (at least 3,500), and who regularly, i.e. two to three times per week, independently promote products and achieve a strong presence and a high profile as a result.
1.5 WOW Tech Europe is a manufacturer and seller of high-quality erotic products and accessories. WOW Tech Europe will regularly offer interesting campaigns or products for promotion, for which influencers themselves can apply independently at WOW Tech Europe by contacting [email protected], in order to post reports about them on certain channels.
1.6 Unless another agreement has been reached between you and WOW Tech Europe, these conditions apply exclusively. Any commercial terms that you may have that contrast, differ from or supplement these conditions will not be included in the contract, unless we expressly agree to their validity.
2. Acceptance of application and fulfilment of contributions
2.1 There is no claim to participation in a campaign offered by WOW Tech Europe as a reward. WOW Tech Europe may conclude a contract with you for a specific campaign if you fit the corresponding campaign profile as an influencer. With your agreement, we shall query your personal public reach data from the social networks or platforms that you have named. For more detailed information, see our Data protection provisions.
2.2 Should the contract be concluded between yourself and WOW Tech Europe, you are obliged to make the agreed contribution to the campaign within the agreed time period (hereinafter “reporting period”), e.g. to create your own post about the campaign and/or about the product in your social media channel within the reporting period, and to share it with your friends/followers.
2.3 WOW Tech Europe will agree the reporting period with you individually. In all cases, this is a fixed-date transaction, i.e. you must fulfil your contribution at the start of the reporting period. When the reporting period expires, there is no further interest in your contribution, and your claim to the agreed product or agreed fee expires. Any products already sent to you must be returned by you in this case, or - if a return is not possible, e.g. for reasons of hygiene - you are where necessary obliged to replace the value of the product obtained. We are not required to issue a warning. In all other cases, default begins in accordance with the statutory regulations.
2.4 Within the scope of a bonus campaign, WOW Tech Europe agrees an individual bonus with you, which must be expressly stated in the contract. The bonus always consists of a payment which WOW Tech Europe makes in euros on presentation of an invoice, exclusively to the account given by you. The bonus may only be claimed when WOW Tech Europe is presented with evidence of the agreed report (posting online). This evidence must be provided in the form of links to your posts.
2.5 In the cases of failure to fulfil the contribution to the campaign in a manner that infringes the contrast, WOW Tech Europe is due a contract penalty of 0.5% per day, although a maximum of 10% of the net value of the product, or, with bonus campaigns, the agreed bonus money. The assertion of any further damage compensation claims remains unaffected; the contract penalty will however be set against a damage compensation claim. The contract penalty does not fall due if the product or bonus has a value of less than EUR 50.00.
2.6 You are free to make any other editorial or journalistic contributions according to your own judgement. WOW Tech Europe merely specifies the content framework for the campaign or product advertising, to which you are bound.
2.7 You must write your contributions yourself. You must label places in the text which you have adopted from other people or publications accordingly, with reference to the source. You must ensure that your contributions do not infringe the personal, brand, copyright or other rights of third parties. If people are shown on photos used by you, you must obtain their express approval for publication and use of the image.
2.8 WOW Tech Europe recommends that you observe the rules of behaviour specified by the German Advertising Council (Deutscher Werberat). For more information, see: https://www.werberat.de/verhaltensregeln. You are obliged to personally ensure that all your contributions meet the statutory requirements, in particular in relation to the broadcasting treaty (Rundfunkstaatsvertrag; RStV) and other media, competition, youth protection and press law requirements. These include the clear and unequivocal labelling of advertising and the visual separation of advertising from editorial content. Each advertising measure agreed with us must be labelled as such, e.g. by attaching or blending in the easily legible word “Advertisement” (“Anzeige”) or “Advertising” (“Werbung”) in an easily visible place. It should be shown in a separate space from other editorial content or programme sections in a manner suitable for the medium, through visual and/or acoustic means, e.g. through a separate section or a division of the screen (split screen). You may not use techniques for covert or subliminal influencing. You are also obliged to label the supplier in a way that is easily recognisable, accessible at all times and constantly available (e.g. through an imprint).
2.9 You are also obliged to desist from commercial offers, activities, legal infringements or other impairments to the campaign that are impermissible, which inhibit the development of children and young adults, which violate human rights or which are of a criminal nature, misleading or aggressive. These include e.g. pornographic, discriminatory, racist, extreme religious or political statements, or those that extol violence.
3. Storage of the contract text
3.1 The data finalised with you, together with the data provided by you, will be stored internally by us. We will be happy to forward you this data via a direct access link sent by e-mail.
3.2 The general terms and usage conditions can also be viewed at all times on www.womanizer.com.
4. Products and conditions of payment
4.1 For your contribution, you will receive the product agreed in each case with you, or the agreed bonus. The product is a non-cash benefit. This is connected to the campaign and can either consist of an invitation to an event or the delivery of the product to be advertised, or a voucher. Bonuses consist of the payment of an agreed amount or a lump sum advertising cost contribution for your contribution.
4.2 If the contract between you and WOW Tech Europe is concluded, the purchase price or advertising cost contribution agreed in this context is regarded as a fixed price, even if it has not expressly been identified as such.
4.3 It is hereby agreed that the payment of the agreed bonus is made via a credit note issued by us in euros - plus the statutory VAT. The credit note has the effect of an invoice (Section 14, Clause 2, p. 2 VAT Act, “UStG”). We shall issue the credit note immediately following presentation of evidence of online posting as per item 3.5 of these conditions. Payment will be made exclusively to the account given by you.
4.4 For products, WOW Tech Europe - unless agreed otherwise - retains the right to determine the type of dispatch, in particular transport companies, the transport route and packaging.
4.5 With regard to claims arising from a contract concluded in relation to a campaign and the associated extra-contractual claims, compensation or withholding is only permitted when counter-claims are due against which no objection has been made. The influencer is only authorised to exert a right to withhold insofar as a counter-claim is based on the same contractual relationship.
5. Retention of title of products
5.1 WOW Tech Europe retains the ownership of the delivered products and/or parts of these (reserved goods) until you have fulfilled your obligation to make a contribution to the agreed campaign in accordance with the contract.
5.2 The goods that are the subject of retention of title may neither be leased to third parties nor transferred as security prior to the full provision of the contribution. You must inform WOW Tech Europe immediately in writing when and in so far as third parties access the reserved goods.
6. Usage rights
6.1 Following conclusion of the contract, WOW Tech Europe will provide you with the advertising materials, brands, photos, videos, trailers, scene photos, models, drawings, images, sketches etc. needed to realise the contract. For the reporting period, you will be granted single usage rights which are limited to the reporting period and the agreed channel.
6.2 Should you as an influencer purchase a copyright, service or other rights to your posts relating to the agreed campaign and your other contributions relating to the agreed campaign (hereinafter “contribution”), you grant WOW Tech Europe the sole, irrevocable, temporally and geographically unlimited right to
use your contribution together with translations and other revisions or redesigns of your contribution.
6.3 WOW Tech Europe retains the right to use your contribution unaltered or following editing or a redesign to produce more extensive campaign advertising, for a comprehensive and repeated assessment or for use in all media, social networks and all forms of implementation - digital or analogue. This comprises the following in particular:
– The comprehensive right to duplicate, disseminate, or publicly present or replicate or make publicly available your contribution or parts of it - in the original or in edited form.
– The reproduction of your contribution in any form and sequence, including the recording, presentation or repeated reproduction with added sound as a sound or language expression, the publication and duplication in text, image, video or other multimedia form.
6.4 You remain authorised to use your own contribution for your own purposes within the agreed scope. You also have a claim to naming your influencer name in connection with your contribution. The only exception is when such naming is not standard in relation to the specific medium being used.
7. Defect rights
7.1 If, following conclusion of the contract, it emerges that the claim of WOW Tech Europe to the provision of the contribution is at risk due to a defective performance capacity or willingness to perform on the part of the influencer, WOW Tech Europe may refuse to provide the agreed product and specify to the influencer - insofar as this is still possible due to the fixed deadline for the contribution - a reasonable period in which the influencer must complete the agreed contribution step by step against the provision of the product. The same applies in cases of defective contributions. Should the influencer refuse to perform, or should the period expire without a successful outcome, WOW Tech Europe retains the right to reduce the agreed payment for the defective contribution, or to withdraw from the contract and demand damage compensation.
7.2 With all product deliveries, WOW Tech Europe shall observe the valid statutory regulations and specifications, such as the REACH ordinance (ordinance EC No. 19072006) or the law on electrical and electronic devices, (“ElektroG”).
7.3 You as an influencer may only assert claims for defects for products when you fulfil your legal obligations for inspection and notification (Sections 377, 381 of the German commercial code, “HGB”).
7.4 In cases of justified claims for defects relating to the product, of which notification is given in due time, you as an influencer initially have a claim to supplementary performance during the guarantee period, whereby WOW Tech Europe may as it chooses either rectify the fault or deliver a fault-free item.
7.5 You must give WOW Tech Europe the time and opportunity to arrange the supplementary performance due, in particular handing over the products subject to complaint for inspection. In the case of a replacement delivery, you must return to WOW Tech Europe the defective item in compliance with the statutory regulations.
7.6 You only have the right to claims for damage compensation or compensation for futile efforts according to the regulations contained in item 8 below of these conditions.
7.7 Your defect rights are excluded if you have caused the defect through failure to observe the operation, maintenance, care or assembly instructions, through incorrect use, faulty treatment or assembly, or due to natural wear.
7.8 The claims arising from material and defects of title lapse according to the statutory regulations.
8.1 WOW Tech Europe is consistently liable in full for damage to persons (injury to life, body and health) and for damage caused by intent or gross negligence, and for liability according to the product liability legislation. This also includes unlimited liability for fraudulently concealed defects or the lack of a quality for which WOW Tech Europe has assumed a guarantee.
8.2 In all other cases of slightly negligent infringement of a key contractual obligation, the liability of WOW Tech Europe is always limited to the foreseeable damage that typically occurs. Key contractual obligations are those obligations whose fulfilment enables the correct realisation of the contract per se, and which the influencer can regularly be confident are being met. No further liability exists.
The influencer is obliged, during and after termination of the contractual relationship, to maintain strict confidence regarding all commercial or operational secrets of the client, payment agreements and all other circumstances of a confidential nature which have been described as confidential, either verbally or in writing, or which are recognisable as confidential matters, as well as all information and circumstances connected with the cooperation, which are made known to them during the cooperation. The obligation to maintain confidentiality also applies following expiry of the contract. The existence and content of this agreement is also confidential.
10. Contract language and severability clause
10.1 The contract language is German. With regard to contract documents (such as application, confirmation) or other written communication, the German language version is always decisive.
10.2 Should a clause in the concluded contract or a clause of these conditions be or become invalid, or contain a gap, the legal validity of the remaining clauses remains unaffected. In this case, the parties are obliged to agree on a legally valid clause which comes closest to the commercial purpose of the invalid clause.
11. Applicable law and place of jurisdiction
11.1 The contract concluded between WOW Tech Europe and the influencer and the agreements made within it are subject to the law of the Federal Republic of Germany. The UN purchase law (CISG - the UN Convention on Contracts for the International Sale of Goods of 11 April 1980) is expressly excluded.
11.2 The sole place of jurisdiction for disputes arising from the contractual relationship is - insofar as is permissible - the head office of WOW Tech Europe in Berlin, Germany.