T&C FOR CUSTOMERS

§ 1 General information
 

(1) CAPTURE the Agency GbR, Zangerstraße 15, 65375 Oestrich-Winkel (hereinafter: "CAPTURE") offers its customers advertising services such as cooperation, product placement campaigns, performance campaigns, give-away campaigns and other services, in particular in cooperation with influencers, in social media including blogs (hereinafter: "Profiles") (hereinafter collectively referred to as "Campaigns"). CAPTURE accepts these orders and has them produced by advertisers, "prominent" online personalities, bloggers and people with a generally high reach on the Internet, especially in social media, as subcontractors (hereinafter: "influencers"). The influencers finalize the campaigns according to the client's ideas on behalf of CAPTURE and publish them. Customers of CAPTURE are CAPTURE's clients, regardless of whether they are companies, agencies, or other clients, even if agencies represent them.
 

(2) CAPTURE also provides services to individual customers in the field of management consulting, during which CAPTURE advises the customer in implementing performance-optimized influencer campaigns and makes suggestions for booking suitable influencers. The respective service description results directly from the offers submitted by CAPTURE. 

§ 2 Scope of application, definitions of terms

(1) These General Terms and Conditions(hereinafter referred to as "GTC") apply to all contracts and business relationships between CAPTURE and its customers. They apply in particular to    
 

• Influencer campaigns

• and/or contacting exclusive influencers from CAPTURE

• and/or mailings/messenger messages/newsletters

• and/or influencer recommendations/portfolios by e-mail

• and/or sending products to CAPTURE or the influencers of CAPTURE

• and/or (advertising) services 

• and/or cooperation agreements

• and/or consulting services from CAPTURE
   

(2) The version of the General Terms and Conditions of CAPTURE, valid when the contract is concluded, shall apply. 

(3) Deviating, conflicting or supplementarygeneral terms and conditions of the customer are hereby rejected.

(4) Individual agreements with the customer(including collateral agreements, supplements and amendments) shall take precedence over these GTCs. 

(5) CAPTURE only accepts as customers entrepreneurs within the meaning of § 14 BGB (German Civil Code), i.e., natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the legal transaction.

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

(7) Unless otherwise agreed in writing with CAPTURE, the following definitions of terms shall apply to all communication between CAPTURE and the Customer as well as to the service description:
 

• Instagram/IG: The "Instagram" platform" is accessible athttps://www.instagram.com.

• Instagram feed post: Video or photo content uploaded to the influencer's main channel on the social network "Instagram."

• Instagram Story/IGS: Content on Instagram with a length of at least 3 temporary video or image sequences (15 seconds each) that are uploaded to the "Stories" section of the account and disappear after 24 hours.

• Story views/story reach: Number of people who have seen an Instagram story.

• Story impressions: Total number of views of an Instagram story, including multiple views from one user.

• Swipe-Up Link/Link-Sticker: Link in an Instagram Story that can be accessed by swiping up or tapping. The link provided by the customer is used and placed in at least one story slide.

• Slides/Sequences: Short, consecutive images or videos within an Instagram story. A slide has a fixed length of 15seconds.

• Reminder/Story-Reminder: A single story slide(15 seconds) published on the influencer's profile 24h to max. 48h after publication of a complete story and refers to the actual story or individual content.

• Teaser: Single story slide (15seconds), published a few hours or days before a main story and intended to arouse the community's interest.

• Instagram Reel/IG Reel: Video format on Instagram under the "Reels" section with a length of at least 15 seconds.

• Carousel mail: Post with several images or videos displayed one after the other and published on the influencer profile under the "Feed" section on Instagram.

• Instagram IGTV Post: A video with a minimum length of 2 minutes uploaded via the IGTV function of the Instagram app.

• Instagram Live: Live streaming function on Instagram within which advertising can be placed.

• Highlight Permanent storage of selected Instagram stories in the influencer's profile under the "Highlights" section.

• Instagram Bio: Text section in the influencer's profile that contains personal information and in which tags, links, codes or advertising messages can be placed.

• Link in Bio: Reference a link placed in the influencer's profile.

• Feed range: Number of individual people who have seen a feed post.

• Feed impressions: Total number of views of a feed post, including multiple views from one user.

• TikTok/TT: The platform "TikTok", accessible athttps://www.tiktok.com.

• TikTok Video: A short video was shared on the "TikTok" platform under the "Video" section.

• TikTok Bio: Text section in the influencer's profile that contains personal information and in which tags, links, codes or advertising messages can be placed.

• Facebook: The "Facebook" platform," accessible athttps://www.facebook.com.

• Facebook post: Video or photo content uploaded to the influencer's main channel on the social network "Facebook."

• YouTube/YT: The platform "YouTube" is accessible athttps://www.youtube.com.

• YouTube (Dedicated)video: Video content uploaded to the influencer's main channel on the social network YouTube, where the video's plot focuses exclusively on the respective campaign. The brand named in this contract, as well as the usability and properties of the respective product, must be used to the defined extent.

• YouTube Integration: Short product or brand integration into an existing YouTube video with content that may not relate to the product.

• Snapchat/SC: The "Snapchat" platform" is accessible athttps://www.snapchat.com.

• Snapchat Post: At least 5 video or image sequences (15 seconds each) uploaded to the influencer's main channel on the social network "Snapchat."

• Blogpost: A text and image post in the influencer's main blog. The article must contain the customer's product/service.

• Blog Article: Written post published on an influencer's blog platform/website.

• Twitch: The platform "Twitch" is accessible athttps://www.twitch.tv.

• Twitch Livestream: TV live stream on the influencer's main channel on the social network Twitch, featuring the product or service at regular intervals during the stream and a special mention in the headline/name of the stream.

• Insights/profile statistics: Data on the performance of an influencer profile and its content in the form of screenshots or screen records that the influencer creates and provides.

• Gender split: Statistics on the distribution of genders within the influencer's followers, which are created by the respective platform and provided by the influencer.

• Age distribution: Statistics on the distribution of age groups within the influencer's followers, which are created by the respective platform and provided by the influencer.

• Country distribution: Statistics on the distribution of countries of origin within the influencer's followers, which are created by the respective platform and provided by the influencer.

• City distribution: Statistics on the distribution of cities of origin within the influencer's followers, which are created by the respective platform and provided by the influencer.

• Link clicks: The number of clicks on a specific URL (e.g., within an Instagram story). The statistics are created by the respective platform and provided by the influencer.

• Content: Media elements such as text, images or videos shared on social media (as part of campaigns).

• Content-Piece: A completed media element, e.g., a single Instagram story or sequence or an Instagram feed post.

• UGC/Content Production: Content provided by the influencer and for advertising purposes.

• Caption: Text that describes or supplements a social media post (e.g., a feed post) and in which tags or hashtags can be integrated.

• Codes/voucher codes/discount codes: Special codes that offer discounts on products or services and through which the performance of a campaign can be measured. Codes can be personalized to the influencer or the campaign and are provided by the client.

• Tracking links: Trackable URLs that measure clicks and campaign performance and are provided by the client.

• Tracking parameters: Additional information is appended to URLs to track performance.

• Buy-outs/rights of use: Purchase of rights to use campaign content for marketing purposes, e.g., to display social media ads.

• Boost: Increasing the visibility of content through additional paid advertising measures.

• Correction loop: Process of reviewing, correcting and approving individual content. A correction loop corresponds to a single round of feedback from the customer and reworking by the influencer.

• Handle: Username of an influencer on social media.

• Barter deal: Exchange of products or services instead of monetary compensation.

• Performance remuneration: Remuneration based on the performance or success of a campaign according to specific KPIs such as the number of sales and the turnover generated as a result.

• CPM: Cost per thousand impressions, a key figure for the reach of content/contributions.

• Briefing: Instructions and information that influencers receive for a campaign and with which the influencer must ensure the correct implementation according to the client's ideas. Briefings are usually created directly by the customer.

• Black Week: Period from Monday to Black Friday, incl. Cyber Monday (the following Monday after Black Friday) with sales promotions.

• Posting date/Go-Live: Planned time of publication of a post or campaign by the influencer.

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§ 3 Campaign requests
 

(1) The customer undertakes to provide truthful information in a campaign request or offer and not to impersonate another person or use a name for which he is not authorized. The billing address is the postal address provided by the customer unless the customer specifies a different billing address. Suppose the customer provides no or incorrect information about his address. In that case, CAPTURE may use the customer's details from the legal notice on his homepage as the billing address and for other communication.     

(2) The Customer undertakes not to transmit any content with viruses, Trojans, or other programming that could damage the CAPTURE or partners' system. In the event of non-compliance, the customer shall be obliged to compensate CAPTURE for any damage incurred by CAPTURE due to any culpable breach of the above obligations.

(3) The customer undertakes not to disseminate any advertising or inaccurate warnings about viruses, malfunctions and the like or to encourage participation in snowball systems, chain letters, pyramid schemes and similar campaigns.

(4) For each CAPTURE campaign, the customer must comply with and recognize the rules in these GTCs. In case of a breach of these regulations, all ongoing campaigns may be discontinued immediately. CAPTURE shall remain entitled to remuneration and the customer must pay the total amount.

(5) CAPTURE is not obliged to refer to any previous or ongoing campaigns of CAPTURE or the Influencer before or after commissioning, even if the advertised products, services or companies could compete with those of the customer or its client. The Customer or the Customer's Client is not entitled to demand that CAPTURE or the influencers commissioned by CAPTURE work exclusively for the Customer or the Customer's Client or that they do not also work or advertise for other products, services or companies, even if the advertised products, services or companies could compete with those of the Customer or the Customer's Client.   

§ 4 Conclusion of contract 

(1) The presentation and advertising of the services on the websites, print media or within advertisements (e.g., on Instagram) do not constitute binding offers to conclude a contract with CAPTURE.  The same applies to campaign proposals or non-binding or non-binding offers from CAPTURE, which also invite the customer to submit an offer (so-called invitatio ad offerendum). The customer is not entitled to participate in a specific campaign/cooperation until a binding individual contract has been concluded. 

(2) If CAPTURE submits a binding offer to the Customer, CAPTURE shall inform the customer of the influencer, the scope and type of content (e.g., Instagram story, feed post, TikTok video, reel, etc.)and the profile (social media channel) to be used, the type of video and the remuneration for a campaign. The offer is subject to confirmation by the influencer. The confirmation is usually issued with the order confirmation from CAPTURE. 

(3) Individual contracts are concluded by agreement, including by telephone or messenger service.

(4) The offers or proposals of CAPTURE are based on the ideas communicated by the customer concerning the campaign in question. The customer is responsible for ensuring that the requirements and information provided by him for a campaign are accurate and complete. 

(5) The customer confirms that it has carried out an internal check in advance, 
 

• whether the influencer can be booked under the conditions, i.e., whether the necessary budget is available, 

• whether the authorization to act for the booking exists, 

• that there are no overlaps in the bookings, such as a double booking, whether past bookings with the influencer could conflict with the assignment, 

• whether all insights/statistics have been submitted, fit and a booking can be made, 

• that the influencer's profile and existing content suit them,  

• whether the destination country/shipping country has been requested if worldwide shipping is not possible, if fixed dates are necessary, e.g., for live events, whether these have been communicated and availability has been agreed with CAPTURE and 

• whether the products to be advertised are available. 

(6) Subsequent changes to the campaign provisions, particularly a postponement of agreed publication dates, are only possible if CAPTURE agrees.

§ 5 Order processing 

(1) CAPTURE shall perform the agreed services with the necessary care. CAPTURE is entitled to use the services of third parties, in particular those of influencers, for this purpose. 

(2) CAPTURE has specific empirical values regarding the expected reach of certain advertising measures. The customer is aware that forecasts in this regard are non-binding and that CAPTURE cannot guarantee a certain level of success. Insofar as the customer receives reach figures from CAPTURE or the influencer, in particular Insights, from the past, he is aware that these only allow limited conclusions to be drawn about the figures to be achieved for the campaign covered by the contract. The customer is also aware that call-up figures, website traffic or sales, a certain ROI or specific KPIs are only within the influencer's sphere of influence to a limited extent and are dependent on many factors, some of which can only be influenced by the client or the platform. CAPTURE is, therefore, not due any success in this regard. Suppose a separate remuneration has been agreed for the achievement of specific targets for an advertising measure. In that case, this is paid as a performance-related bonus if the target is achieved. 

(3) If the customer wishes the content to be labeled as advertising, this must be communicated to the influencer in the briefing. The customer hereby releases CAPTURE from any obligation arising from a lack of labeling.

(4) Campaigns are generally created by influencers who work independently and autonomously. Their services are subject to independent execution within the agreed parameters. Therefore, the client has no claim to a specific result. Notwithstanding this, the agreed framework conditions must be complied with, particularly the data on products, services or companies. A campaign is fulfilled after the respective influencer publishes all agreed content components. 

(5) The customer is not entitled to uninterrupted support services. The availability of service staff and the possibility of contacting them may be limited or unavailable at times. The customer shall have no claim if the CAPTURE website, telephone lines, messenger services, or similar are not accessible due to force majeure or internal resources, the CAPTURE service cannot be accessed, or the contact options are restricted or interrupted. 

(6) The customer shall only be entitled to create the campaign in a specific file type if this has been agreed upon.

(7) The customer is obliged to specify his desired campaign as precisely as possible in a written briefing within a reasonable period, but no later than 48 hours before publication or agreed content release, to avoid future disputes regarding the content and appearance of the campaign. The customer shall check the links, codes, or other tracking parameters to be provided by it with the briefing for correctness and functionality before transmitting them to CAPTURE. He is responsible for their correctness and functionality. 

(8) If not provided by the customer, a briefing on the campaign implementation shall be prepared by CAPTURE based on the information supplied by the customer.

(9) For each cooperation request, CAPTURE reserves the right to check for offensive, racist, defamatory, or criminal content. In such a case, you will be notified that the commissioned campaign cannot be produced. In this case, the campaign will not be carried out and the deposit will expressly not be refunded. 

(10) CAPTURE shall only be entitled to review the content to be published or published if this has been expressly agreed. 

(11) CAPTURE undertakes to moderate between the customer and the influencer if necessary and to pass on the influencer's contact details (if the latter agrees) to the customer at live events to achieve the best possible result. 

(12) The Customer is obliged not to deviate from the initially confirmed production order and to respect the calculation basis on which CAPTURE and the Influencer are based. Direct communication between the client and influencer (if necessary and permitted) is used to agree on details and specifics but not to change the original order.

(13) CAPTURE shall be entitled to provide partial services insofar as this is reasonable for the customer. 

(14) If a release by the customer has been agreed, CAPTURE will request the customer to do so as soon as the campaign has been created by the respective influencer for release and - unless it is not possible in terms of time or technically - transmit the image & video material via WeTransfer, Dropbox, mail or comparable tools and/or cloud services. A correction loop shall only take place if it has been expressly agreed. Upon receipt of the campaign material, the customer must notify us of any objections in writing immediately.  

(15) The campaign will be published on the influencer's selected channels after the customer approves publication. The movement or the respective partial service must be released within one week of notification by CAPTURE unless a shorter period is necessary due to the agreed publication date. The customer cannot refer to a deviation if he has not previously provided sufficient information on the creation of the campaign. Suppose the customer neither approves the content within this period nor raises justified objections. In that case, the content created shall be deemed to have been approved for publication after the expiry of the period. The content is then published.

(16) The Customer shall assert any subsequent objections regarding the content in writing to CAPTURE immediately after publication. If he fails to do so, the content is deemed to be approved.

(17) After completion of the campaign, the customer will receive the insights of the published content on request, in so far as this is technically possible. If this is not possible, the customer is not entitled to reduce the remuneration.  

(18) Deadlines for the provision of services by CAPTURE shall not commence until CAPTURE has received the data required for the services in full following the agreement or the necessary cooperation has been provided in full. This also includes the final confirmations of all content release dates. Suppose the customer receives proposals from CAPTURE fora campaign's publication date(s). In that case, he is obliged to accept one or more of these proposals or to submit three other date proposals for each agreed campaign, whereby the proposals for the first or only publication date must be within eight weeks of the order being placed. Suppose more than one campaign has been agreed. In that case, these alternative dates for the publication of the first campaign must be within eight weeks of the order being placed and foreach subsequent campaign within the four weeks following the last publication date unless otherwise agreed with CAPTURE. Suppose the customer fails to comply with this obligation even after the expiry of a reasonable deadline set by CAPTURE in writing. In that case, CAPTURE shall be entitled to invoice the total remuneration.

(19) The customer is obliged (i) to send products to be provided by him to the influencer at his own expense and risk, in good time so that the influencer has a reasonable period to provide the contractual services, and (ii) to notify the influencer in advance of expected shipping times of more than two days. 

(20) If there is no fixed date, e.g., a live event, CAPTURE is entitled to cancel agreed dates for unforeseen prevention of the influencer, e.g., due to illness, and to propose new dates analogous to the provision in paragraph (18). CAPTURE can suggest a comparable influencer for the services if an influencer is permanently unavailable. The customer will agree to this proposal unless there are objective reasons against it.

(21) If CAPTURE is prevented from providingthe agreed services and the reasons for the hindrance originate from the sphereof the customer, CAPTURE's obligation to perform shall be suspended. At thesame time, CAPTURE' claim for remuneration shall remain unaffected.

(22) Contractual declarations, invoices or other notifications sent by CAPTURE to the e-mail address provided by the customer for this purpose or - if the customer has not provided any information in this regard - to the e-mail address of the customer's last contact person shall be deemed to have been delivered to the customer as soon as they have been received in the electronic inbox of this e-mail address. If received after 8 PM, they shall be deemed accepted on the next working day.

§ 6 Cancellation/rebooking of campaigns 

(1) CAPTURE reserves the right to cancel or rebook the contract or partial services if the commissioned influencer does not provide his service despite his contractual obligation, e.g., because a product test does not convince him there is an incompatibility with the product or for other reasons for which CAPTURE is not responsible. Deposits for canceled(partial) services will be refunded immediately. Instead of canceling, CAPTURE is entitled to propose another influencer of equal value or several influencers at a similar overall budget to the customer. The customer undertakes to accept this proposal unless there are objective reasons to the contrary. 

(2) The claim to remuneration for (partial)services rendered shall remain unaffected.

(3) The customer has the right to cancel a campaign in writing until the start of content production and only if no publication date has yet been agreed. In this case, the client must pay 50% of the agreed remuneration for the campaign. As soon as production has begun or a publication date has been agreed upon, a cancellation is excluded and complete payment must be made. The customer shall be at liberty to prove that CAPTURE saves expenses or acquires or maliciously refrains from receiving them by using its labor elsewhere. 

§ 7 Remuneration 

(1) All prices quoted by CAPTURE are net prices subject to statutory value-added tax.

(2) The influencers activated by CAPTURE act exclusively in the interest of the client, who utilizes the influencers’ services. If CAPTURE is required to pay an Artists’ Social Security Contribution (Künstlersozialabgabe) to the Artists’ Social Security Fund (KSK) for the influencers’ remuneration, CAPTURE is entitled to pass these costs on to the client and itemize them separately on an invoice.

(3) All invoices from CAPTURE must be settled within 14 days of receipt unless otherwise agreed upon or stated on the invoice. If the customer is in default of payment, CAPTURE shall be entitled to charge a reminder fee of EUR 40 plus VAT plus shipping costs for the reminder. Furthermore, CAPTURE shall be entitled to default interest of 9 percentage points above the base interest rate. They shall be entitled to withhold further payments. 

(4) CAPTURE is entitled to demand a down payment of 50% of the agreed remuneration from the customer, due within 7 days of placing the order. 

(5) CAPTURE shall be entitled to invoice partial services insofar as this is reasonable for the customer. This applies to individual or several fully delivered campaigns, individual influencers of a campaign, or already published content.

(6) If the customer opts for a campaign with physical goods, he shall bear the costs for the respective products, shipping, and, if applicable, customs duties. They must pay tax on products or items they provide to the influencer following Section 37b of the Income Tax Act.  

(7) If the customer does not send products directly to the influencer but to CAPTURE (Mainzer Str. 21, 65185 Wiesbaden),he must pay the shipping costs for forwarding to the influencer as well as a service fee of EUR 40 plus VAT. CAPTURE shall send a corresponding invoice to the customer upon receipt of the products. There is no entitlement to forwarding before receipt of the total amount (shipping costs plus service charge and VAT).

(8) The customer is generally obliged to pay by bank transfer. Different payment methods must be agreed upon in writing before the start of the campaign. There is no entitlement to alternative payment methods. 

(9) All additional fees for transferring money abroad or via alternative payment service providers (such as PayPal) are to be paid in addition to the total price and the statutory VAT. All payments must be made in Euros.

(10) If the granting of rights of use has been agreed upon, the separate remuneration shall be due and payable upon invoicing. 

 

(11) Invoices from CAPTURE to the Customer shall be provided exclusively in digital form. 

§ 8 Copyright 

(1) Unless otherwise agreed, the customer does not receive any rights of use to the content. In particular, he has no right to publish, distribute, or make the content available publicly. A separate agreement with CAPTURE is required to grant ownership of use. 

(2) The Customer shall grant CAPTURE anon-exclusive right of use to the respective brand(s) or company logo(s)advertised or contained in the campaign following the contract as well as to all other possible industrial property rights (hereinafter "Customer Property Rights")") to the extent that this is necessary or expedient for the fulfillment of the contractual obligations. With the publication of the content, the customer's protective rights to the content are exhausted and the customer irrevocably waives any claims concerning the content. CAPTURE is entitled to grant the producing influencer a corresponding sublicense for this purpose.

(3) The Customer shall indemnify CAPTURE against claims of third parties, which are based on the fact that the customer was not entitled to grant the rights according to paragraph (2). 
 

§ 9 Liability 
 

(1) CAPTURE shall be liable without limitation for culpably caused damages resulting from injury to life, limb or health. Furthermore, CAPTURE shall be liable without limitation in cases of grossly negligent or intentional breach of duty and within the scope of liability under the Product Liability Act. 

(2) The following applies to other damages: In the event of damage caused by slight negligence, CAPTURE shall only be liable in the event of a breach of a material contractual obligation, but the amount shall be limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract; material contractual obligations are obligations that arise from the nature of the contract and whose breach would jeopardize the achievement of the purpose of the agreement, as well as obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the customer may regularly rely.

(3) CAPTURE shall only be liable for the loss of data following the above paragraphs and only to the extent that appropriate data backup measures on the part of the customer could not have avoided such a loss.

(4) The objection of contributory negligence(e.g., breach of the customer's obligations) remains unaffected.

(5) The limitations of liability shall also apply mutatis mutandis to the vicarious agents of CAPTURE.

(6) If the customer sends materials, products or other items to the influencer to create the content, the influencer shall be solely liable for the condition and return of the materials, products or other items provided. CAPTURE assumes no liability and no guarantee for materials, products or other items provided to the influencer.

(7) CAPTURE shall not be liable for damage to property or personal injury during a live event commissioned by a customer. The latter is fully responsible for ensuring and complying with all official and legal requirements. The customer shall indemnify CAPTURE against any liability and claims.

§ 10 Supplier protection

(1) For the duration of the cooperation and aperiod of six months after its termination, the customer is not permitted toplace orders with influencers directly or indirectly, independently or dependently,occasionally or commercially or to use their services without the prior writtenconsent of CAPTURE (supplier protection). Influencers within the meaning ofthis provision are only those active for the customer due to the cooperation with CAPTURE or those made known to the customer in the context of the collaboration with CAPTURE or, in particular, were suggested by CAPTURE.

(2) Excluded from the obligation to protect suppliers following paragraph (1) are influencers who were previously known to the customer and concerning whom the customer has notified CAPTURE in writing immediately after receipt of Insights, a campaign proposal or offer or other disclosure of the influencer by CAPTURE. However, prior awareness can only be claimed if the customer has maintained an active contractual relationship (not mere initiation) with the influencer at or within one year before the disclosure. 

(3) The Customer undertakes to forward any requests from CAPTURE influencers to CAPTURE without delay. Unless expressly permitted by CAPTURE, communication with the Influencers shall occur exclusively through and via CAPTURE. Agreements with influencers on-site, via social networks, messenger services, by telephone, or in any other way CAPTURE has no knowledge of but which involve execution, payment and/or other relevant changes are strictly prohibited to the customer. The customer also undertakes to inform CAPTURE immediately of any misconduct by an Influencer.

(4) The Customer shall pay an appropriate contractual penalty for each breach of the obligations to protect suppliers for which it is responsible following § 10, the amount of which CAPTURE shall determine at its reasonable discretion and the appropriateness of which may be reviewed by the competent court in the event of a dispute. Further claims by CAPTURE shall remain unaffected.

(5) The customer itself must ensure that it does not breach contractual obligations (such as exclusive agreements) towards third parties (such as agencies commissioned by it) as a result of its commitments to protect suppliers. Should such a breach occur, even if only imminent, the customer must inform CAPTURE immediately. This notification does not release the customer from the obligations to protect suppliers following the above provisions. 

§ 11 Customer reference

(1) Unless otherwise agreed or the customer does not expressly object, the customer agrees to serve as a reference for CAPTURE upon conclusion of the contract. The references may be presented in both digital and non-digital form. CAPTURE may use the company, the customer, the logo and, if applicable, other publicly known information, such as the industry, when presenting the reference. The customer may request the removal of the connection with effect for the future, provided that the last order to CAPTURE was placed at least one year ago. Suppose CAPTURE is obliged to remove the reference. In that case, the customer shall grant CAPTURE four weeks to remove the reference for easily modifiable uses (e.g., website, e-mails, social media channels, etc.) and six months for all other benefits.

 

(2) Notwithstanding the foregoing, CAPTURE shall have the right to permanently publicly display content created within the scope of the contract, including products, services, brands or companies advertised therein, as an example of its range of services, including on its website and social media platforms. 

(3) If the Customer is an agency, CAPTURE may refer to it as a "Partner Agency" or "Partner Platform" following Section 11 (1). The agency shall ensure that its client grants CAPTURE the rights following (1) and (2) above. 

§ 12 Confidentiality

 

(1) The customer undertakes to maintain secrecy about the proposals, offers and information on all campaigns and to treat this information confidentially. This includes, in particular, all details, information and data about the participating influencers, the agreed prices, the insights and, in particular, details about CAPTURE itself. This also includes the influencer's name, the type of campaign, and the content of the agreements between CAPTURE and the customer.

(2) In particular, the customer is prohibited from disseminating, disclosing or otherwise publishing this information online, especially in social networks and media. In particular, the customer is also prohibited from using insights or prices for other contractors or clients or processing, using or passing them on to third parties other than for executing the contract or the agreed campaign. For clarification, it is pointed out that the confidentiality obligation also applies to CAPTURE influencers insofar as disclosure is not necessary to execute the order.

(3) Information relating to the campaign, in particular the process, appointments, prices, other influencers involved and similar sensitive data may only be passed on to the influencer(s) via CAPTURE and its vicarious agents. Direct communication between customers and influencers is strictly prohibited.

(4) This obligation does not apply to such information,

a. which were demonstrably already known to the customer at the time of conclusion of the contract or subsequently become known to the customer from a third party without violating a confidentiality agreement, statutory provisions or official orders;

b. which are publicly known at the time the offer is made or are made publicly known after that unless this is due to a breach of this contract;

c. which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the customer obliged to disclose shall inform CAPTURE in advance and allow CAPTURE to take action against the disclosure.

 

(5) The confidentiality obligations according to § 12 shall also apply beyond the contract term without any time limit.

 

(6) The Customer shall pay an appropriate contractual penalty for each breach of the confidentiality obligations according to § 12 for which it is responsible, the amount of which CAPTURE shall determine at its reasonable discretion and the appropriateness of which may be reviewed by the competent court in the event of a dispute. Further claims by CAPTURE shall remain unaffected.

 

§ 13 Behavior & consideration 

 

(1) Ratings (stars, comments) within social media (e.g., Google My Business) are only given by mutual agreement between the parties. At CAPTURE's first request, the customer shall permanently remove a rating submitted via CAPTURE. This shall also apply after the termination of the contract between CAPTURE and the customer. If the customer does not remove the evaluation/comment objected to by CAPTURE upon first request, a reasonable contractual penalty to be determined by CAPTURE and reviewed by the competent court in the event of a dispute shall be deemed forfeited. 

 

(2) The Customer must refrain from statements or actions in public that are likely to damage the image of the influencer commissioned by CAPTURE or CAPTURE or that are contrary to public decency or common decency. 

 

§ 14 Final provisions

 

(1) The law of the Federal Republic of Germany shall apply to contracts between CAPTURE and the Customer to the exclusion of the UN Convention on Contracts for the International Sale of Good sand the conflict of laws provisions of German law. The contract language is exclusively German.

 

(2) The Wiesbaden, Germany courts shall have exclusive jurisdiction for all disputes arising from the contractual relationship between CAPTURE and the Customer. However, CAPTURE is also entitled to assert claims against the influencer at the customer's general place of jurisdiction.

 

(3) Additions and amendments to the contract must be made in writing; this also applies to waiving the written form requirement.