Framework contract for influencers

in the version of 01.08.2019

§ 1       Scope

(1) This framework contract is valid for every contract between the-models GmbH, Kreuzstr. 34, 33602 Bielefeld, Germany, hereafter referred to as “agency” and the person, that is registered as an influencer at the-models.de or at the-influencer.de or who makes a booking confirmation within a registration that has been made (hereafter referred to as “influencer”). The contract is considered as framework contract for every order made by the agency and accepted by the influencer and regulates the duties of every order towards the customer.

(2) Changes of this framework contract are only valid by the matching declaration of both parties in written form, whereby only the agency’s management can make changes. The agency reserves itself the right to change the conditions regularly, which the influencer accepts with the accepting of a booking with reference to the new conditions.

§ 2       Contractual object

(1) The agency tries to mediate the influencer to its customers for service and product advertising purposes. Success is not guaranteed.

(2) The agency is therefore the agent of the influencer. The agency receives a commission for the mediation of influencer and or performer contracts (orders) between the influencer and the customer, which is billed to the customer.

(3) The frequency of orders depends on the demand of the respective influencer type, so that no concrete information can be given. If the influencer should not be mediated by the agency due to a lack of demand by the agency's customers, it is not part of the sphere of the-models and the agency is not liable for any service or replacement.

§ 3       Registration

(1) To be accepted in the database of the agency and to be considered for possible orders, the influencer has to register on the website “the-models.de” or "the-influencer.de" once.

(2) The information provided during the registration have to be true and correct. All mandatory details have to be filled in; the framework contract and the declaration of consent have to be accepted.

(3) Only legal entities, who are legally competent and legal or corporate entities, are allowed to register. A registration can only take place in the relation of the exercise of a commercial activity or as an independent contractor; therefore the influencer has to be an entrepreneur. In this regard, the agency is entitled to demand a business licence or other proof of business from the influencer at any time and to exclude the influencer immediately from his platform if he does not or no longer consider the entrepreneurial status to be given at his own discretion. Alternatively, the agency reserves the right to also accept non-commercially active persons as influencers if a settlement based on the income tax card has been agreed upon.

(4) The registration first takes effect when it is confirmed by the agency. The agency has the right to decline or revoke the registration without giving reasons at any time.

(5) The revoke of the registration by the influencer is possible at any time but does not affect current employment relationships.

§ 4       Job submission

(1) Depending on requirements, the agency shall issue the orders described under § 3 to the influencer by notifying the e-mail address provided by the influencer in the registration process.

(2) The influencer is entitled to reject jobs from the agency at any time. A justification is not necessary here.

(3) If the influencer accepts a job, he is obliged to carry it out in accordance with the agency's requirements in terms of content and time and in accordance with the provisions of the respective booking confirmation.

(4) After coordination of the order and electronic confirmation that the Influencer accepts it, the Agency is entitled to conclude the contract with the customer in the name of the Influencer and to commit the Influencer in this respect. With the confirmation of the Influencer, an individual contract is concluded between him and the Agency in this respect. However, claims of the Influencer against the Agency shall only arise when the Agency has actually confirmed the conclusion of the contract to the Influencer.

(5) The influencer is not entitled to independently apply for campaigns of the respective customer on the basis of information obtained through communication with the agency. This regulation is valid for 12 months from the date the agency sends the booking request to the influencer. A direct cooperation between the influencer and the respective customer during this period is therefore prohibited. Should the influencer nevertheless enter into cooperation with the respective customer during this period, § 12 applies. In addition, the influencer is obliged to pay a contractual penalty of 2,000.00 € (Euro) to the agency in case of a violation of this agreement.

§ 5       Obligations of the influencer

(1) The influencer is obliged to produce the postings agreed with the customer and to publish them on the agreed social media channel within the cooperation period specified in the booking confirmation. The influencer is not allowed to mention or promote any competitors of the costumer within these postings.

(2) The influencer is not allowed to publish any further advertising postings on his social media channel on the day of publication of contributions within the framework of the cooperation.

(3) The Influencer undertakes to label all posts created within the scope of the cooperation as advertising in accordance with the advertising guidelines of the respective social media platform. Such labelling can be achieved, for example, by adding the term "advertisement", "Anzeige" or "Ad". The corresponding labelling must be clearly legible and easily recognisable. If the agreed advertising labelling is missing, the influencer is exclusively liable. In addition, the Influencer undertakes to ensure that all requirements of the TMG (German Telemedia Act) are met, in particular the obligation to provide an imprint. Should the TMG be violated, the Influencer shall be exclusively liable.

(4) The influencer is obliged to ensure that all postings created within the cooperation are legal and do not infringe any third-party rights (copyright, trademark law, competition law, etc.). The influencer is not allowed to disseminate any unauthorised advertising, spam or incorrect warnings of viruses, malfunctions and the like or to request participation in unfair competitions or comparable actions.

(5) The influencer is not allowed to create, publish or link to any immoral, pornographic, morally reprehensible, offensive, violent, violence glorifying, sexist, right-wing or left-wing extremist content or content that violates any laws, in particular laws for the protection of minors and the Jugendmedienschutzstaatsvertrag.

(6) The influencer assures that the subscribers on his social media channel and the persons interacting with his postings are not bots. Such bots are in particular any computer-controlled programs or parts thereof that perform repetitive or generic tasks largely automatically without relying on interaction with a human user. The same applies to all procedures and techniques that are suitable for covertly or subliminally influencing users.

(7) After publication of the postings created within the cooperation, the Influencer is obliged to keep them published on his Social Media channel for a period of at least 365 calendar days unless otherwise specified with the booking request / confirmation. In this phase the Influencer is prohibited from deleting this content independently. In the case of stories, the posts created must be made available for a period of 24 hours. During this time, the influencers profile must be public. After expiry of the period, the Influencer is free to delete the services or to continue to leave them on the corresponding channel. The Agency reserves the right to demand the premature deletion of the content already published.

(8) The influencer shall provide the agency with the statistics of the contracted influencer campaign within 7 working days upon request.

§ 6       Remuneration

(1) The influencer shall receive the fee agreed in the booking confirmation for the production of the influencer postings within the respective cooperation period. The amount of the fee is specified in the respective booking confirmation. All costs incurred by the influencer during the creation of the postings are thus covered.

(2) For the orders successfully placed with the Influencers by the Agency, the Agency shall be entitled to a commission in the amount of 25 percent of the remuneration paid by the Customer pursuant to Paragraph 1

(3) All prices are net prices. The value-added tax (VAT) shall be added to the price, if applicable.

(4) The payment of the fee to the influencer takes place within 10 days after a correct invoice has been issued.

(5) The influencer does not receive any remuneration if the content produced by him does not meet the specifications agreed upon in the booking confirmation. Furthermore, the influencer receives no remuneration if he violates his obligations listed in § 5. Due to the fixed business character, the influencer does not have the right to subsequent fulfilment, which the influencer hereby relinquishes.

§ 7      Sickness

(1) If the Influencer is unable to perform the services owed under the order form due to illness or another comparable reason, the Influencer must inform the Agency of this immediately, but no later than within two days of becoming aware of the reason for the impediment, as well as of the expected duration of the impediment. This shall also apply to the recovery or the removal of the hindrance.

(2) As soon as the Influencer has recovered, he/she must make up for the services owed under the individual order without delay, but at the latest within one week of the date of recovery. This shall only apply if and to the extent that the services can in principle be made up for and this appears expedient within the framework of the order form. The final assessment is the responsibility of the agency.

§ 8      Cancellation of an order

Orders originally planned cannot be guaranteed by the agency. In the event that the respective contract between the agency and the customer is cancelled by the customer – even at short notice – the contract between the agency and the influencer is automatically cancelled, too, without replacement. The agency will inform the model immediately after learning about the cancellation. In the event of cancellations or the exchange or change of days of service, the influencer is not entitled to compensation for the dates cancelled in this way.

§ 9      Duration of this contract

(1) This contract is for an indefinite period.

(2) The influencer can end the contract at any time with the consequence of deactivating the sedcard, which will then be put offline.

(3) The agency can also end the contract at any time and take the sedcard of the influencer offline.

(4) The ordinary contract termination does not affect orders which the influencer already accepted. The influencer must complete orders which are already booked or not yet completed. If this does not happen, the agency reserves the right to claim compensations.

(5) The right to extraordinary termination remains unaffected for both parties.

(6) Any termination must be in (electronic) text form.

§ 10       Image rights

(1) During the term of the contract, the influencer grants the agency unrestricted rights of use to the image and video material sent to the agency by the influencer.

(2) The agency is entitled to a commission for the orders successfully placed with the influencers by the agency. The agency commission is usually 20% of the fee. In addition to the agency commission, a further 5% of the fee will be charged as a pre-financing commission. The pre-financing commission is charged in order to compensate for the default risk of the client's performance with regard to the advance payment made to the influencer. The commission is charged to the client and is no longer to be deducted from the remuneration offered to the influencer in the booking request.

(3) The influencer grants the agency as well as the respective customer irrevocable and unrestricted rights of use of the image and video material created within a cooperation for advertising purposes.

(4) In addition, by sending the agency image material, the influencer assures that he owns the unrestricted rights to use these photos and is entitled to have them published on the agency website.

§ 11     Use of social media an web content

(1) To promote the marketability of the influencer, the agency reserves the right to use pictures and / or videos of the influencer’s social media and/ or web content for the sedcard or other advertising of the model. The influencer agrees to this and declares by concluding the contract that she / he is legally authorized to transfer the corresponding usage rights to the agency.

(2) The agency will promptly inform the influencer about the use of social media and / or web content, according § 9 (1).

(3) In addition, the Influencer grants the Agency a right to sublicense the content pursuant to § 11 (1) to the Customer. This entitles the respective customer of the individual order in particular to use this content itself, to refer to it, to share it, to refer to it in stories, etc.

(4) If the rights of third parties conflict with the use of content from social media and/ or the web, the influencer shall first attempt to obtain such rights. If this is not possible, the influencer shall inform the agency as soon as possible after the conclusion of the contract, but at the latest when receiving the usage hint by the agency, according § 9 (2), which pictures and / or videos are excluded from use by the agency. The influencer is responsible for delayed or missing references to the rights of third parties to pictures and videos in social media and / or the web.

(5) Insofar as the Influencer can be accused of intent or negligent ignorance with regard to the existence of third-party property rights to the corresponding content in accordance with § 9 and 10 of this Framework Agreement, the Influencer undertakes to indemnify the Agency against the claims of said third parties upon first demand.

§ 12     Confidentiality obligations

(1) The parties undertake to treat as confidential all information and documents received from the other party in connection with the performance of this Agreement. The parties are prohibited from disclosing information or documents of the other party to third parties without the other party's prior written consent. This shall not apply to such third parties who are subject to a professional duty of confidentiality in relation to the party disclosing the information.

(2) The provisions of Paragraph 1 shall not apply to such content and information which the Agency has reserved for itself for advertising purposes in accordance with this Framework Agreement.

(3) The provisions of the German Business Secrets Act shall remain unaffected.

§ 13     Liability

The influencer is liable for all damages, happened by or because of contract violation by the influencer, towards the agency. This applies in particular for the violation of the obligations from this contract as well as for violations of obligations from respective booking confirmations. The liability exists also towards the agency’s customer, for who the influencer worked.

§ 14     Data Protection

(1) For the purpose of executing the contract and arranging individual orders, the data provided by the Influencer during registration will be collected and stored by the Agency. This is done on the basis of Art. 6 para. 1 p. 1 lit. b DSGVO.

(2) The Agency undertakes to comply with the applicable data protection provisions, in particular in accordance with the DSGVO, at all times. Further information on data protection can be found in the Agency's privacy policy, available at https://www.the-influencer.de/en/privacy-policy.
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§ 15     Other

(1) Place of jurisdiction is Bielefeld, Germany.

(2) This Agreement is exclusively subject to German law.

(3) Changes and additions of this contract require written form and must be expressly identified as such and have to be accepted by both parties. The agency reserves itself the right to change the conditions regularly, which the influencer accepts with the accepting of a booking with reference to the new conditions.

(4) Should one or more terms of this contract be invalid or void, the validity of the remaining terms shall not be affected. The parties are obliged to replace invalid or void clauses with legally valid ones that come as close as possible to the economic intention of the initial clause. The same applies if the contract should contain a gap that needs to be filled.