TERMS AND CONDITIONS
§ 1 AREA OF APPLICATION
(1) The following General Terms and Conditions (referred to as “T&Cs” in the following) shall apply to business relationships between Social Match GmbH & Co. KG (referred to as “Social Match” in the following) and the business partner (referred to as the “Client” in the following) in the version applicable at the time the cooperation was established.
(2) The Client’s Terms and Conditions shall not apply, even if their validity was not explicitly and individually rejected.
(3) In addition to these T&Cs, the basis for business relationships between Social Match and the Client shall be formed by the offer provided by Social Match to the Client, and the parties shall agree to the essential characteristics of provision of services within this context. Any provisions in the offer that deviate from these T&Cs shall take precedence over these T&Cs.
§ 2 NATURE OF THE BUSINESS RELATIONSHIP
(1) The Client has engaged Social Match to provide services involving advertising, marketing, sales promotion of inter alia a brand, a corporate logo, a product, or a service (also referred to as “Campaign” in the following).
(2) The performances of Social Match may include the development and implementation of specific advertising activities as well as – due to corresponding agreement with the Client – sales promotion activities associated therewith to be performed and provided by third parties (i.e. particularly Influencers). Social Match shall at its own discretion select and implement advertising and sales promotion strategies and activities. Anyhow, Social Match shall be obligated to apply the Clients’ explicit creative and conceptual demands when made aware to Social Match in writing (text form satisfactory) by the Client.
(3) Social Match shall safeguard the Client’s interests to the best of its abilities. In order to achieve a trusting working relationship, the Client shall provide any and all information, documents, and data essential to and required by Social Match for performing its services.
(4) Social Match shall be entitled to provide its services through subcontractors (especially third companies or affiliates of Social Match) if the Client does not object to this in writing (text form sufficient) due to understandable and reasonable grounds. In the latter event, Social Match shall be obligated to provide its services independently; Social Match shall nevertheless then also be entitled to terminate the business relationship according to section 11 para 2 or para 3 of these T&Cs.
§ 3 SERVICES PROVIDED BY SOCIAL MATCH
(1) Consulting services provided by Social Match may include the following:
(a) Cooperation in the development of the Client’s advertising strategy and tactics;
(b) Consulting on development of international, national, regional, and local focuses;
(c) Consulting on the optimal way to reach the target groups;
(d) Consulting on the effective involvement of selected third parties and Influencers for the optimal promotion of a brand, a corporate logo, a product, or a service of the Client.
(2) The concept development services provided by Social Match may include the following:
(a) Creation of a concept including definition of marketing objectives, target groups and advertising positioning;
(b) Development and submission of an advertising idea including an explanation of the creative intentions for marketing and sales promotion;
(c) Creation of a catalogue of activities based on the developed concept;
(d) Creation of a requirement profile for third parties and Influencers to be chosen/deployed for the Campaign;
(e) Research for suitable third parties and Influencers based on the Client’s qualitative and quantitative criteria and based on the concept designed for the Client in order to implement optimal marketing activities.
(3) The services provided by Social Match with regard to the implementation and processing of the Campaign may include:
(a) Communication and negotiation with third parties and Influencers;
(b) Creation of briefings and agreements to coordinate deployment of third parties and/or Influencers;
(c) Management of contract negotiations with third parties and Influencers, including the agreement on their remuneration; the conclusion of agreements with third parties and Influencers in Social Match’s own name, discretion and authority, but however in accordance with the Client’s specifications; processing the agreements with third parties and Influencers;
(d) Monitoring the third party’s and the Influencer’s contributions throughout the campaign. Social Match is not responsible for the legal conformity of the contribution’s correct identification of advertising activities by the third parties and Influencers. Social Match shall nevertheless encourage the third parties and Influencers to comply with any applicable laws and statutes with regard to their contributions;
(e) Creation of interim and final reports regarding the progress and achievements of the Campaign using the KPIs agreed upon between Social Match and the Client.
(4) Further details regarding the scope of Social Match’s services may also result from briefings, which are subject to respective agreement between Social Match and the Client.
§ 4 SERVICES TO BE PROVIDED BY THE CLIENT
(1) The Client shall be obligated to provide Social Match in reasonable time but at the latest within 48 hours upon the corresponding request by Social Match with all documents, data, information, and guidelines essential and necessary for Social Match to provide its services. The Client ensures that he is fully authorised to provide Social Match with the given documents, data, and information.
(2) These T&Cs constitute an integral part of the offer provided by Social Match to the Client, specifying the key parameters of the cooperation of the parties during the relevant Campaign. The Client must inform Social Match in writing (text form sufficient) within five (5) working days following the offer’s receipt about his consent with the offer or on any demand of changes. The Client must inform Social Match in writing (text form sufficient) about any requested changes to the offer.
(3) For the duration of a campaign and for 6 months subsequent to a campaign, the Client commits itself not to engage in a direct cooperation – in circumvention of Social Match – with the Influencer, deployed by Social Match with advertising services in a Client’s campaign.
§ 5 RENUMERATION
(1) For the services described in the offer and the T&Cs Social Match shall receive the remuneration specified in the offer.
(2) If not already explicitly referred to in the offer, the legally required Value Added Tax (VAT) shall apply and be payable to all services provided by Social Match involving remuneration, expenses, and travelling costs, provided this tax is due.
(3) All payments shall be due payable to Social Match without any deductions within 30 days following the submission of a corresponding invoice.
(4) Social Match shall at any time be entitled to request partial payments from the Client for stand-alone parts of a Campaign.
(5) In case of extensive Campaigns of a longer duration (longer than 3 months following acceptance of the offer), Social Match shall be entitled to request partial payments from the Client, regardless of the completion of stand-alone parts of the Campaign. Requirement for such partial payments is that it shall be possible for the Client to identify the invoiced services provided by Social Match from the invoice.
(6) Any additional remuneration for miscellaneous services not defined in the offer and provided by Social Match must only be paid by the Client if the respective remuneration has been agreed on by the parties in writing (text form sufficient).
(7) Due to the consent of the Client and upon presentation of the original receipts, the Client must reimburse Social Match for out-of-pocket expenses and travelling costs that incurred during completion of services by Social Match within the context of the business relationship if not already covered by the agreed remuneration.
§ 6 USE OF TRADE MARKS
During the business relationship and thereafter, Social Match shall be entitled to use protected and unprotected, i.e. registered or not registered trademarks, logos, names, designs, or other trademarks belonging to the Client in any form for its own marketing purposes, without any obligation to remunerate the Client for the respective use.
§ 7 RIGHTS OF USE
(1) At the time of their acquisition or their creation, Social Match shall grant the Client use of all transferable rights, particularly rights of use governed by copyright law, the right to file applications for trade mark, and name rights, in order for the Client to exploit the services performed during the campaign.
(2) The granted rights shall only apply for as long and insofar as Social Match remains the owner of these rights and rights of use on its own behalf or is or was entitled to grant such rights for other reasons.
(3) Any right referred to in this section 7 shall be granted to the Client non-exclusively. Nevertheless, the Client shall be entitled to transfer granted rights. Social Match shall at any time remain entitled to use, exploit, transfer, or otherwise handle the granted rights at its own discretion and without limitation in terms of time or place, in any other form, and without restriction.
(4) If Social Match uses/deploys third parties and Influencers to provide services during the cooperation with the Client, Social Match shall endeavour to receive a granting, transfer, or to ensure spatially or temporally unlimited use of their copyrights and any other rights resulting from provision of services by third parties or Influencers. However, Social Match shall not be obligated to do so.
(5) Social Match shall at any time be and remain entitled to use any ideas, drafts, and creations, designs, files etc., created, developed, generated during the business relationship with the Client in performing the parties’ agreements in an altered manner within and for any further current and future business relationships with other clients or the Client himself.
§ 8 LIABILITY
(1) Social Match shall undertake to complete the work assigned to it with due professional and commercial care and to the best of its ability and in good conscience while also observing generally accepted principles of advertising.
(2) Social Match shall only be liable for losses or damages incurred by the Client due to defects, delays, or non-performance of Social Match’s obligations if Social Match fails to fix the given defect, delay or non-performance upon a written (text form sufficient) complaint by the Client informing Social Match in specific about these defects, delays or non-performances and within a grace period granted by the Client to Social Match of at least ten (10) business days. In this case, liability for damages shall specifically include costs for a new concept, planning, and creation of the advertising service. Social Match’s and/or the Client’s need to produce several drafts for publication of an image and/or a text associated with the image shall not constitute a defect, delay, or non-performance.
(3) For any other losses or damages that result to the Client due to culpable behaviour of Social Match, Social Match shall be liable without limitation in case of intentional or gross negligent behaviour and, in case of ordinary negligence, only if material obligations typical for the contract are violated and result in losses or damages typically foreseeable at the time the contract was concluded. Any limitation of liability indicated above shall not apply in case of loss of life, bodily injury, or impairment of health or in case of application of mandatory statutory provisions.
(4) Social Match’s liability for indirect losses or damages and subsequent losses or damages caused by defects shall be excluded.
(5) Social Match shall not be liable to the Client for losses or damages resulting to the Client due to misconduct on behalf of third parties and Influencers (subcontractors, sec. 2 para 4, exempted). Such misconduct may include insufficient identification of advertising involved with publications on social media networks on the Internet or in other media for distribution of advertising messages. Only the third parties and Influencers engaged and/or the Client shall be responsible for the proper identification of any publication with advertising content. Nevertheless, Social Match shall indicate the obligation of proper identification to the third parties/Influencers engaged.
(6) In addition to and in case not expressly and in a legally correct manner deviated from in this section 8, the applicable statutory provisions shall apply.
§ 9 CONFIDENTIALITY
(1) The parties shall be obligated to treat all exchanged business documents related to their business relationship as strictly confidential.
(2) The parties shall also obligate their own staff and third parties engaged for provision of services to treat business documents as confidential.
(3) The obligation to maintain confidentiality shall apply for the duration of the cooperation between the parties and for two (2) years thereafter.
§ 10 SAFEKEEPING
(1) Social Match shall safeguard and store all documents, data, files, etc. placed at its disposal by the Client for provision of services during the cooperation and for at least two (2) years thereafter.
(2) The Client shall be entitled to demand the return of these documents or to request the deletion of data and files at any time.
§ 11 DATA PRIVACY STATEMENT
Social Match processes personal data of the Client and its employees for the purpose of conducting the business relationship, fulfilling obligations resulting therefrom for Social Match and for legitimate interests .With the data privacy statement mentioned in § 11, Social Match fulfills the obligations under § 13 GDPR.
The Client’s personal data Social Match is processing are in particular the name, the address, the e-mail address, the telephone number, professional information of the contact person, personal data in connection with other personal characteristics to determine the appropriate campaign strategy/cooperation partner and, if applicable, further personal data of the Client insofar as they relate to a natural person within the meaning of § 4 (1) GDPR. The purposes for which Social Match processes the personal data of the client are explained below.
To optimize the performance of the campaign, to fulfill and to properly discharge its obligations under the contract, Social Match collects, stores and processes the Client’s personal data. This includes, for example, processing steps for the internal storage of personal data, the internal transfer of personal data to the employee responsible for the Client at Social Match or the initiation and processing of communication with an influencer. Furthermore, in the course of providing the services, the data is passed on to third parties, subcontractors, who are responsible for the fulfillment of the contract, within the required scope. This includes the purposive use of the personal data of the Client for the purpose of communication and negotiation with third parties and influencers in the sense of campaign/service provision. The legal basis of these processing steps is § 6 (1) (b) GDPR. All processing for the above purposes is necessary to fulfill the contract.
For the sake of the successful cooperation of the Client with potential influencers as well as the corresponding initiation, execution and execution of campaigns, Social Match sends personal data to influencers. The Client can contact the influencer, or do so through Social Match. The legal basis for this processing step is § 6 (1) (b) GDPR. All processing steps for the stated purposes are necessary to fulfill the contract.
The personal data of the Client and the employees are stored for the duration of the contract and beyond for a reasonable period of time to fulfill the stated purposes. This period depends, among other things, on whether post-contractual claims still have to be asserted, specific requirements and enquiries, resulting from the cooperation with the Client, an influencer and Social Match, have to be served or whether legal storage obligations exist.
The Client may assert the data subject rights referred to in § 15 et seq. GDPR with respect to Social Match, in particular the right to information (§ 15 GDPR), correction (§ 16 GDPR), deletion (§ 17 GDPR), limitation of data processing (§ 18 GDPR) and, if applicable, the right to data transferability (§ 20 GDPR). In addition, the customer has the right to complain to the supervisory authority if he is of the opinion that the processing of personal data by Social Match violates the GDPR.
§ 12 DURATION & TERMINATION
(1) The duration of the business cooperation between Social Match and the Client shall be determined by the duration or period of the Campaign to be completed according to the parties’ agreements. The business relationship between the parties shall end following upon completion of the Campaign and complete fulfilment of the relevant agreed performance obligations.
(2) During the duration of a Campaign, the business relationship may be terminated by Social Match by giving one (1) months’ notice from the end of the month. In this case, the Client shall not be entitled to assert claims to damage compensation resulting from the premature termination of the business relationship. The services performed up until the time when termination becomes effective must be properly invoiced and remunerated.
(3) Both parties shall be entitled to terminate the business relationship at any time for a good reason (“extraordinary termination”).
(4) In case of extraordinary termination by Social Match, Social Match shall be entitled to invoice the agreed remuneration from the Client (pro rata if appropriate) for any services performed until the time when termination becomes effective.
(5) If extraordinary termination is based on misconduct or a material breach of the contract on behalf of the Client, Social Match shall additionally be entitled to demand compensation for losses or damages and expenses incurred by Social Match resulting from Social Match’s expected continuation of the business relationship.
§ 13 MISCELLANEOUS
(1) Upon obtaining the Client’s consent, Social Match shall be entitled to assign rights and obligations resulting from the business relationship with the Client to third parties, either in whole or in part.
(2) The laws of the Federal Republic of Germany shall apply to the entire business relationship between Social Match and the Client and to the provisions of these T&Cs and the offer in particular. The application of the United Nations Convention on Contracts for the International Sale of Goods shall be explicitly excluded.
(3) The place of jurisdiction for all disputes resulting from and in connection with the business relationship between Social Match and the Client, these T&Cs, and/or the offer shall, in the absence of mandatory statutory provisions, be Münster (Westphalia), Germany or the Client’s place of jurisdiction at the discretion of Social Match.
(4) If one or more provisions of these T&Cs are or become invalid or ineffective, this shall not affect the validity or effectiveness of the remaining T&Cs. A provision that most closely matches the commercial intention of the parties in this regard shall take the place of the invalid or ineffective provision.
(5) In case of any conflict or deviation between the German and the English version of these T&Cs, the German version shall prevail and be the only valid version of these T&Cs.