GENERAL TERMS AND CONDITIONS of the Manycreators GmbH
in the version of 17.12.2021
§ 1 General
“Manycreators GmbH” is a subsidiary of Home Shopping Europe GmbH (“HSE”), Münchener Str. 101h, 85737 Ismaning, (hereinafter referred to as the “Agency” or “Manycreators”) and mediates or provides influencers (hereinafter referred to as “Contractors”) who are requested by the Client for collaborations and other projects and/or creates content with the Contractors for Clients.
The contracts concluded between the Agency and the Client are subject to these General Terms and Conditions. This also applies to future business relations between the client and Manycreators, even if this is not expressly agreed upon again by the contracting parties. However, the agency remains authorized to change its terms and conditions at any time and to conclude new contracts only under the validity of the new conditions. Individual agreements in contracts always take precedence over these general terms and conditions.
The current version of the valid general terms and conditions can be viewed at any time at www.manycreators.com/agb.
§ 2 Conclusion of contract
Between the agency and the customer it can come first by e-mail, telephone, via WhatsApp or other messenger services to an order description and concretization of the service. The contract is concluded at the latest with the sending of an order confirmation by the Agency, from which the concrete details of the order result. Only those service and price specifications that have been expressly declared by Manycreators in text form (e.g. e-mail) shall apply. The customer accepts the order confirmation by remaining silent.
The approval and/or countersignature of offers by the customer’s employees is understood as a declaration of the customer’s management. The customer is responsible for the legal appearance set. This shall also apply if the consent is given by e.g. WhatsApp or e-mail or if the countersignature is given without a stamp, provided that the declaration is fundamentally attributable to the sphere of the customer.
§ 3 Tasks and duties
The Agency can be commissioned for the following services, among others: (1) creation of content productions (e.g. promotional videos with an Influencer of the Agency) or (2) mediation/provision of contractors for the performance of highly personal services (e.g. Influencer Posts on the Contractor’s own channel) on behalf of the Client. These contractors can be in particular, depending on the customer’s wishes, influencers, models or other creative personalities. The billing and commissioning of the contractors is carried out by the agency. The exact contractual content of the service owed by the agency “Manycreators” or the contractors results from the respective offer letter or the order confirmation.
The client shall ensure that the contractors are specifically informed about the scope of activities desired by him; regularly, this is done in the context of social media campaigns through a briefing, which is to be sent by the client. The customer shall also ensure that the contractors receive product samples or clothing to be advertised if this is of importance to the customer for the implementation of the campaign.
Outside of the briefing and the concrete project order as well as possible deadlines, the contractors arranged for the client are free in the design of their activities and are not subject to any instructions regarding time, place and design.
Manycreators does not guarantee recognition and approval of the contractor by the client and the public.
The contractors are only obligated to perform work that is usually evident from the booking request, usually in connection with the presentation of goods or services. The contractors are not obliged to perform any further work and/or work that does not correspond to the contractual purpose. In particular, no work is owed that interferes with the intimate or personal sphere of the contractors. Likewise, the contractors are not obliged to perform the work to an extent other than agreed. If the customer insists on such activities, the contractor can refuse these activities and, in case of doubt, also refuse further execution of the contract. The customer shall nevertheless remain obliged to pay the full agreed remuneration.
The customer is prohibited from agreeing on booking changes or additions with contractors during the campaign without Manycreators’ prior consent. Any booking changes made will not affect the agreement between the agency and the client. The contractor is not authorized to legally represent Manycreators vis-à-vis the customer.
§ 4 Remuneration
The agency remuneration results from the offer or the order confirmation. The object of the calculation is the fee of the commissioned contractor, as well as any additional travel expenses incurred. Manycreators is entitled to demand an agency commission from the contractor in a separately agreed amount. The total amount is inclusive of the statutory value-added tax of currently 19% applicable at the time of the order.
Manycreators is entitled to demand advance payment in the amount of 50% up to 100% of the invoice amount stated in the order confirmation or the offer. This advance payment is payable within 14 days of the invoice date. The remaining amount is due after the service has been rendered and is also payable within 14 days of the invoice date.
In the event that a requested deposit / advance payment is not paid on time, Manycreators is entitled to terminate the contract immediately. In this case, the customer is not entitled to any compensation. Manycreators retains the right to the deposit for the expenses incurred and the contractor’s booking, unless the customer proves that Manycreators has not incurred any corresponding expenses and / or damages.
§ 5 Offsetting, retention
The customer is only entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed or acknowledged by the agency, or are disputed but ready for decision in court proceedings. Manycreators is entitled to a right of retention of the service in the event of non-payment of the deposit, irrespective of the right of termination (§ 4).
§ 6 Project failure / cancellation of an assignment
The customer remains obliged to pay the contractually agreed remuneration in the event of a project cancellation for which he is responsible. The same applies to the cancellation of a project through no fault of Manycreators or the contractor itself (e.g. cancellation or shortening of an event), unless the cancellation was due to force majeure.
In the event that a contractor is absent due to illness or force majeure, Manycreators’ obligation to provide the contractually agreed service shall lapse, insofar as Manycreators is unable to procure an equivalent replacement at short notice despite appropriate efforts. Manycreators will notify the customer of the failure without delay.
In the event of cancellation of the order by the customer up to 2 weeks before the start of the project, cancellation fees in the amount of 80% of the previously agreed total amount will be charged. In the event of cancellation of the order by the customer less than 2 weeks before the start of the project, cancellation fees amounting to 100 % of the previously agreed total sum shall be incurred. The assertion of a higher, actually incurred damage is explicitly reserved.
§ 7 Rejection of a contractor
In the event of the rejection of a contractor, the customer is obligated to immediately inform Manycreators in text form (e-mail) of the corresponding reasons. If the reasons in question are reasons that would justify immediate termination of an employee (e.g., refusal to work, insulting the customer, business-damaging comments about the customer, fraud, theft and embezzlement at the expense of the customer, suspicion of a criminal offense, unauthorized leave, threatened sick leave, sexual harassment of colleagues, work time fraud), the customer has the option to withdraw from the contract with immediate effect. In this case, only the working time worked up to that point is to be paid.
If the customer fails to give this reason or if the reasons would not be sufficient for a termination without notice, the rejection of the contractor – regardless of the reason – shall be deemed to be a cancellation of the assignment in accordance with “§ 6 Cancellation of an assignment” and shall be charged at 80 % of the total order amount.
Upon rejection, the customer has the option (but not the obligation) to book another contractor with Manycreators as a substitute. However, Manycreators is only obliged to arrange for an equivalent contractor if the initially arranged contractor was not properly selected.
If the customer fails to do so, subsequent (damage) compensation claims are excluded. This does not apply to claims for which Manycreators has unlimited liability due to injury to life, body and health or due to gross negligence.
§ 8 Rights of Use to Photographs and Video Recordings of the Contractor
For the agreement of rights of use to photo and video recordings of the contractor – also for further marketing on the part of the customer on its own sales channels (e.g. paid media purposes) – the parties shall reach an explicit and separate agreement on the so-called “buy-out” and its scope. Rights of use shall only be granted after payment of the required remuneration. A period of use begins with the actual use of the recordings, but no later than 2 months after the creation of the recordings. The customer shall provide Manycreators free of charge with a selection of the recordings made by him in digital form, which Manycreators may use comprehensively free of charge in any medium for its own advertising purposes and the contractor free of charge for the MediaKit. Any use by the agency will only take place after the client has started to use the recordings.
Any use beyond this in terms of content or time requires the express consent of Manycreators and, if applicable, separate remuneration in accordance with our buyout conditions.
Rights of use to photo and video recordings are only transferred if the agency’s invoice is paid in full and on time. Otherwise, the client is not entitled to use the contractor’s recordings. If the client nevertheless uses the recordings without full payment, the client is obligated to pay Manycreators a contractual penalty in the amount of 100% of the agreed fee.
For the sake of clarification, it is stated that the customer is responsible for additionally obtaining the photographer’s photographic copyright rights.
For the avoidance of doubt, the customer is not allowed to use the image of the influencer for illegal activities or which might cause damage or harm to the influencer.
Should the Customer itself act as an intermediary between the Agency and another end customer, the rights of use agreed in the order confirmation shall be granted exclusively to the end customer under the conditions set out in §9. In this case, the customer is not granted any rights of use. Should the customer nevertheless use the recordings, the customer is obligated to pay Manycreators a contractual penalty in the amount of 100% of the agreed fee.
§ 9 Liability and other obligations of the customer
The customer undertakes to provide Manycreators with all documents and information necessary for the provision of the contractually agreed services in a timely, accurate and complete manner. In all other respects, the legal regulations apply with regard to the customer’s liability, including towards the contractors.
§ 10 Liability
Manycreators is not liable for the admissibility under competition and trademark law and the registrability under trademark law of the services provided. Manycreators excludes liability for slightly negligent breaches of duty, insofar as these do not relate to damages from injury to life, body or health or guarantees, or claims under the Product Liability Act are affected. Furthermore, liability for the breach of obligations, the fulfilment of which is a prerequisite for the proper execution of the contract and on the observance of which the customer may regularly rely, shall remain unaffected. The same applies to breaches of duty by contractors. If Manycreators’ liability can be limited or excluded in accordance with these general terms and conditions, this also applies to its vicarious agents.
§ 11 Obligation to give notice of defects
The customer is obligated to notify Manycreators in writing of any complaints immediately, but no later than within 4 working days after the service has been rendered. Otherwise, the service is considered approved.
§ 12 Final Provisions
This agreement is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Should individual points or provisions of this agreement be ineffective, the remaining points remain unaffected. The invalid provision shall be replaced by the statutory provision. The English version of these general terms and conditions is for explanatory purposes only and is not part of the contract.
The place of jurisdiction for all claims arising from the contract is Munich.