myfluence | Terms and Conditions

This is a non-binding translation provided for convenience. Only the German version is legally authoritative.

We,
CASA Media GmbH

c/o Carano Software Solutions GmbH, Bornstraße 32, 12163 Berlin, GERMANY
registered in the commercial register of the Local Court of Potsdam under reg. no.: HRB 30884 P
represented by its managing director Christoph Krohn
hereinafter: we/us or myfluence

E-mail: support@myfluence.co

operate an online marketing platform at the URL <www.myfluence.co> on which users who have a certain reach or number of "followers" on social media and networks (hereinafter also: social media), as defined in more detail here, can sign up and register. Registration and use of our <myfluence> platform is free of charge. Once registration is complete and the account has been activated, users registered on our platform (hereinafter also: influencer or you) may take part in marketing campaigns that are offered to influencers via the platform. The campaigns are aimed at promoting the download of certain mobile apps on the influencers' social media profiles. Mobile apps are computer or software applications that can be loaded onto and run on a mobile device, in particular a smartphone, smart watch or tablet. The influencer receives financial remuneration for downloads of the promoted apps that are demonstrably attributable to the influencer's promotion. Proof that the influencer's advertising activity caused the download of the promoted app is provided by tracking links, whose performance can be followed and viewed in the influencer's password-protected user area on our platform. The details and conditions of the marketing campaigns offered on the platform, in particular regarding the level of remuneration and how it is calculated, are made known to the influencer before they take part in a specific marketing campaign on our platform.

§ 1 General, scope

These General Terms and Conditions (GTC) govern the legal relationship between us and you as a registered user / influencer on our online platform <myfluence>.
These GTC apply exclusively. Conflicting terms and conditions or other contractual clauses of our registered users that deviate from these GTC are not recognised by us and only become part of the contract with our express consent. Individual agreements always take precedence over these GTC.
Our offer to participate on our platform is directed exclusively at entrepreneurs within the meaning of § 14 of the German Civil Code (BGB). These are natural or legal persons or partnerships with legal capacity who, when concluding the legal transaction, act in the exercise of their commercial or independent professional activity.
Among other things, our platform offers the possibility of creating tracking links for products and using them on certain social media channels expressly named in detail in these GTC. Use on other channels not expressly named in these GTC requires our prior consent.
The GTC in force at the time of your registration on our online platform apply. Through our registration process we ensure that you have the opportunity to take note of these GTC before your influencer account is activated and can be used by you. By registering you agree to the applicable GTC. You can view, download and/or save our currently valid GTC at any time on our online platform.

§ 2 Registration, eligibility to participate, activation of the account

Use of our <myfluence> platform requires successful registration and the activation of your influencer account by us. A contract between you and us is concluded upon activation of your influencer account.
Registration and use of our <myfluence> platform is free of charge and does not entail any further costs. The decision on eligibility to participate on our platform through activation of an influencer account is at our sole discretion. For the avoidance of doubt, there is no entitlement to participation following registration.
Natural persons who have not yet reached the age of 18 are expressly not permitted to use our platform. The same applies to persons without full legal capacity.
If you register on our platform as the representative of another natural or legal person or partnership for an influencer account of the person you represent, you confirm by submitting the data that you are sufficiently authorised to represent the third party and are empowered and entitled to make the corresponding declarations of intent. On request you must provide us with evidence of such authorisation. If you cannot provide us with evidence of the authorisation, you are liable in that respect as a representative without power of representation in accordance with the statutory provisions. This may also include liability for the performance of the obligations that are the subject of the contract. If the purportedly represented person does not approve the registration carried out by a representative without power of representation, we are entitled to delete and deactivate the account concerned immediately. Further rights and claims remain unaffected and are expressly reserved by us.
Registration takes place by creating a user account, whereby all mandatory fields of the registration form must be completed fully and truthfully. Please check the data you have entered before submitting it to us and correct any inaccuracies or errors. Mandatory fields are identified as such. Any communication of additional data beyond this is voluntary. Providing a valid e-mail address is strictly required. If false or incomplete data is submitted, we are entitled not to activate the account concerned, or to block and/or delete and/or deactivate it with effect for the future. You are obliged to notify us of any change to your data without delay and to keep it up to date at all times.
Activation of the influencer account by us is a mandatory precondition for use of our platform and the opportunity granted through it to take part in marketing campaigns. Beforehand, myfluence checks and validates the data and social media profiles provided by the influencer. In doing so we verify that

the social media profiles provided by the influencer are in fact those of the registered influencer,
the influencer's stated social media profiles are publicly accessible,
the profiles are on recognised and popular social media platforms and portals, in particular Instagram, Facebook, TikTok, YouTube, X (formerly Twitter), Pinterest, Twitch, Reddit, Snapchat,
the influencer's social media profiles meet our quality and safety requirements, i.e. in particular that they are free of unlawful, immoral or offensive content and that the reach acquired was not obtained through unfair or abusive methods, in particular through purchased social media followers, likes, views/impressions, etc., and
the influencer's social media profiles have a reach of at least 2,000 followers per individual profile.

The selection of the influencers whose profile we activate on our platform after registration is at our sole discretion. As a first step we send you a confirmation by e-mail containing a verification link. After clicking the verification link you can submit your data to us. We check your data and, as a second step, activate your influencer account on our platform if we accept your registration.
When registering your account you may choose a password for your account yourself. In your own interest, and to protect against misuse of your influencer account, please make sure to choose a password that offers you sufficient security against misuse of your account, e.g. by choosing a long password and using a combination of numbers, special characters, upper-case and lower-case letters. You are further obliged not to disclose the applicable password to third parties and to take reasonable precautions to prevent any third party from gaining unauthorised access to your account and the data stored in it. If you suspect misuse of your account you must notify us immediately. If you breach the duties set out here, we accept no liability for the misuse of your account and the data stored in it.
Your contractual partner for the contract on the use of our platform is CASA Media GmbH, represented by its managing director Christoph Krohn, c/o Carano Software Solutions GmbH, Bornstraße 32, 12163 Berlin, GERMANY. The contract language is German. Translations of these GTC and of all further contractual documents into another language may be made available to you as an additional service on a non-binding basis only. In the event of any discrepancy, the German GTC and contractual documents are authoritative and take precedence over translated versions. We store your contract data in accordance with the data protection requirements of the GDPR. Further information on this can be found in our privacy policy.
We reserve the right to exclude influencers from further use of our platform even after their account has been activated if the conditions for activation set out here subsequently cease to apply.
Each influencer may only be registered for one account and may only use one account. Multiple registrations are not permitted.
In the context of cooperation with partners we may indicate that the influencer is registered on our platform. In doing so, personal data such as name, user name and social media accounts may be transferred to third parties. Details of this are set out in our privacy policy.

§ 3 Obligations when carrying out marketing campaigns

The details and conditions of the marketing campaign offered on the platform in each case, in particular regarding the level of remuneration and how it is calculated, are made known to the influencer before they take part in a specific marketing campaign on our platform. By taking part in a specific marketing campaign the influencer confirms that these apply. The influencer guarantees that their advertising services when carrying out campaigns comply with applicable laws and with the requirements and guidelines applicable to the campaign in each case. Activities performed by the influencer in the context of marketing campaigns must in particular comply with the requirements set out below:

When carrying out marketing campaigns, the influencer may not upload, make publicly accessible or link to any content or other material, in particular photos, videos, texts or music, to which they do not hold the necessary rights, or in which third-party rights exist, or which infringes third-party rights, in particular copyright, neighbouring rights, patent, trade mark, name, competition, design, utility model, personality or other industrial property rights or intellectual property rights.
When carrying out marketing campaigns, the influencer may not upload, make publicly accessible or link to any content or other material if this constitutes a breach of trade secrets or violates general laws. It is in particular prohibited to use content or other material that is offensive, defamatory, harmful, discriminatory, insulting, inflammatory, pornographic, racist, extremist or that glorifies violence or violates public decency.
When carrying out marketing campaigns, the influencer may not upload, make publicly accessible or link to any content or other material if the distribution, reproduction, public performance, making publicly available or offering of such content or materials would give rise to fees or costs for us or for the promoted partner company, e.g. levies payable to collecting societies.
When carrying out marketing campaigns the influencer must observe and comply with the applicable statutory requirements. These include, by way of example: (aa) requirements of advertising law, in particular the duty to identify and label advertising content, (bb) requirements of competition law, in particular the prohibition of misleading practices, the prohibition of unreasonable nuisance, and the prohibition on operating, participating in or promoting chain-letter, snowball or pyramid schemes, (cc) requirements of data protection law, in particular the prohibition on spying out, collecting or using personal data for advertising purposes without consent, and (dd) requirements of the law on the protection of minors.
When carrying out marketing campaigns, the influencer may not upload, make publicly accessible or link to any content or other material that contains viruses, spyware, spam or other harmful software (malware).
When carrying out marketing campaigns the influencer must comply with the requirements of the respective platform operator (general terms and conditions, terms & conditions, licence terms, privacy policies, community guidelines, etc.).
When carrying out marketing campaigns the influencer must use their own social media profile and must observe the provider identification requirements applicable to it.
When carrying out marketing campaigns the influencer may not take any manipulative or unfair measures or use unfair aids. The following in particular are deemed "unfair", without being limited to these:

activities carried out by a bot, script or other automated programs, as well as so-called click fraud;
advertising using false or misleading information, prices or other sales-relevant features of the product to be promoted;
the use of emulator programs that replicate a computer or an operating system and thus make it possible to use or create software for that computer on another computer with a different architecture;
advertising using so-called incentives, i.e. granting, promising or holding out the prospect of benefits or rewards for downloading or purchasing the product to be promoted, including asking users to download or purchase the promoted product merely in order to support the influencer;

We reserve the right to carry out an investigation where fraudulent measures are suspected or known. However, there is no obligation to investigate.
A breach of the aforementioned obligations when carrying out marketing campaigns simultaneously constitutes a material breach by the influencer of the obligations under the platform usage contract pursuant to these GTC, which entitles us to terminate the contract immediately even without prior warning. In the event of a breach of these obligations we further expressly reserve the right, even without prior notice, to remove content or other material, to block the influencer profile, to exclude the influencer from further use of our services, to deactivate tracking links generated via the profiles, to withhold outstanding payments or to reclaim payments made, insofar as the influencer's payment claims arose through a breach of the obligations set out here, and/or to assert further claims against the influencer and/or against whoever is liable for the legal violations.
You are obliged to inform yourself independently, at your own cost and at your own risk, conscientiously about which specific rules and regulations apply when carrying out the marketing campaign and all associated activities. In case of doubt you must obtain professional advice on this.
If claims are asserted against us by third parties on account of violations for which you are responsible or which were caused by you when carrying out a marketing campaign, you must indemnify us on first demand against all claims asserted against us in that respect and hold us fully harmless. This includes indemnification against, or reimbursement of, reasonable costs of legal defence and, where applicable, all court and legal defence costs in the event of legal proceedings.

§ 4 Remuneration, invoicing, payout

Details of the level of remuneration and how it is calculated are made known to the influencer before they take part in a specific marketing campaign on our platform.
Unless otherwise stated or agreed, the payout amounts stated are net amounts in EURO. If the influencer is entitled to deduct input tax and shows VAT, the applicable VAT is charged in addition. The influencer is obliged to provide us with their tax number and their VAT ID for invoicing purposes.
The amount of the remuneration is performance-based and is credited to the influencer's account and paid out periodically. Unless otherwise stated or agreed, the remuneration is generally based on how often the recipients of the advertising downloaded the promoted app within a certain period of time and installed it on their device. The definition applicable to the respective campaign, the calculation of the remuneration, the conditions for it, any upper limits, targeting criteria and guidelines for carrying out the campaign are laid down bindingly in the campaign guidelines.
We record the number of parameters relevant for calculating the level of remuneration using common tracking tools. The influencer can view the recorded tracking data in their account on the platform. The influencer must check the transmitted tracking data, which serves as the basis for calculating the influencer's remuneration, without delay for completeness and accuracy. Objections must be notified to us, stating reasons, no later than fourteen days after the tracking data was transmitted. After this period has expired the tracking data is deemed to be the binding basis for calculating the remuneration to be credited. Any online statistics that we make available to the influencer in the account on our platform serve illustrative purposes only and are not legally binding.
Credit balances on the influencer account do not bear interest.
Unless otherwise stated or agreed, credit balances are paid out periodically, namely twice a month, by bank transfer to the account specified by the influencer and stored in the influencer account, provided that the credit balance amounts to at least €25 at the periodic payout date. If the credit balance falls below the payout threshold, payment is made as soon as the minimum amount is reached or exceeded. In the case of multiple persons, the total amount is paid out to one person only. For the purpose of payout, the influencer must correctly provide us with their name, billing address, tax number, VAT ID and their bank details (IBAN and, where applicable, BIC).
For each payout we issue the influencer with a credit note for tax documentation purposes, which we store in electronic form in the influencer's account. The amounts stated in the credit note are gross amounts and include the applicable VAT or show it separately.
Influencers are responsible for taxing their income from the marketing campaigns themselves. Insofar as we are obliged, on account of the influencer's business address outside the Federal Republic of Germany, to pay the so-called non-resident withholding tax within the meaning of § 50 a of the German Income Tax Act (EStG), the payout amount is reduced accordingly.

§ 5 Availability of the platform, warranty

We endeavour to make our platform available to you permanently and without restriction and to ensure the permanent operation of your influencer account. Nevertheless, we expressly give no guarantee of error-free and uninterrupted usability. If technical maintenance work on our platform is necessary and access to your account is therefore likely to be temporarily restricted, we will where possible inform you of this at least 48 hours before the maintenance work is carried out and will, where possible, have it carried out at a time outside normal business hours (CET = Central European Time). Such work serves system stability, the security or integrity of the servers and the ongoing optimisation of our platform. Any reasonable restrictions associated with this must be tolerated within the usual scope. The platform may be temporarily restricted where this is necessary in view of capacity limits or in order to carry out technical measures.
The statutory provisions apply to rights in respect of material defects and defects of title, unless otherwise stipulated in these GTC.
We give no guarantee of correct data recording in relation to a generated tracking link.
We reserve the right to discontinue operation of the platform in whole or in part at any time, without giving reasons, for an unlimited period. In such a case we will inform the registered influencers in advance and pay out to the influencer the credit balance available on the respective account.

§ 6 Contract term, termination

The contract on the use of our platform is concluded for an indefinite period and may be terminated by either party at any time with a notice period of two weeks from receipt of the notice of termination by the contractual partner, with effect from the end of a calendar month.
Marketing campaigns that have already begun and that only end after the termination takes effect must be continued and brought to completion by the influencer as agreed, irrespective of the ending of the platform usage contract. Notwithstanding the ending of the contract, we will account for the remuneration to which the influencer is entitled for this as agreed and pay it out to the influencer.
The right of the parties to terminate the contract extraordinarily without notice for good cause remains unaffected in any event. Good cause for extraordinary termination of the contract exists for myfluence in particular in the case of a culpable breach by the influencer of the obligations under § 3 of these GTC.
In the event of breaches of contract, the party in breach must as a rule be given a warning before an extraordinary termination is declared and must be given the opportunity to remedy the breach of contract and to eliminate its consequences. However, an extraordinary termination without prior warning is permissible in particular where a) the breach of contract is so serious that the terminating party cannot reasonably be expected to continue with the contract, or b) the contract is breached repeatedly.
If the influencer causes an extraordinary termination of the contract through a culpable breach of contract, we are entitled to end the influencer's ongoing marketing campaigns immediately and to block or deactivate their account and access to our platform provisionally or permanently.
The contract may be terminated in writing or by e-mail in text form. Our postal address is: CASA Media GmbH, c/o Carano Software Solutions GmbH, Bornstraße 32, 12163 Berlin, Germany. Our e-mail address is: support@myfluence.co. No reasons need to be given. Alternatively, you may contact us in the log-in area of the influencer account and notify us of the intended ending of the contract.
In the event of an extraordinary termination declared by us against the influencer on account of a culpable breach of contractual obligations, the influencer is excluded from participating on our platform again and is not entitled to re-register.

§ 7 Limitation of liability

We are liable only for our own fault and only for intent or gross negligence, on whatever legal grounds. For slight negligence we are liable only in the event of a breach of material contractual obligations, limited a) to reimbursement of expenses and damages, b) to the direct, foreseeable damage and c) to the performance interest. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the registered influencer may regularly rely. In our case this is the ability to use your account on our platform and to access it. Except in cases of intent and gross negligence, we are therefore in particular not liable for the loss of business information or data that you have stored on our platform if you have not backed it up adequately or if it has been lost as a result of misuse of your profile (co-)caused by your culpable conduct.
The exclusions and limitations of liability set out here under § 7 (1) expressly do not apply in the event of loss of life, injury to health or body, or in the case of claims under the German Product Liability Act. In these cases the statutory liability rules remain applicable.
The exclusions and limitations of liability set out here under § 7 (1) apply accordingly, subject to the exceptions named under § 7 (2), to our employees, representatives and vicarious agents.
Furthermore, we are not liable for the breach of obligations of the influencer in the independent operation of their social media profiles through which they carry out advertising and marketing campaigns, even if these were arranged via our platform. In particular, but not exhaustively, we are therefore NOT liable for:

compliance with tax-law or other sovereign or public-law obligations of the influencer, including compliance with the obligations to pay taxes that must be observed,
compliance with the influencer's provider identification and information obligations,
the permissibility under competition law of the influencer's advertising, their price statements, their business practices and/or their labelling obligations,
the permissibility under copyright, trade mark, patent, utility model, licence, design, neighbouring rights, freedom of expression, press, advertising, criminal and/or personality law of the product presentations, descriptions and images, as well as other components of their social media profile, and/or
the permissibility under data protection law of the collection and use of personal data that the influencer collects, stores, processes or otherwise uses from their users/followers or other persons in the context of their social media profile.

§ 8 Data protection

We collect and process the personal or personally identifiable data provided by you in the course of your registration within the framework of the applicable statutory provisions, in particular in accordance with the relevant provisions of the GDPR and the German Federal Data Protection Act (BDSG), on the basis of a valid legal basis, either on the basis of your consent, for the purpose of performing contracts existing with you or for pre-contractual steps, or on the basis of our legitimate interest in the data processing. More detailed information on this can be found in our privacy policy.
You are yourself responsible for the data of your followers, customers and/or visitors collected via your social media accounts or profiles, and for compliance with the data protection provisions applicable to you, in particular the provisions of the GDPR. It is your own responsibility to protect this data in accordance with the applicable provisions.
All data that you upload via your social media profiles in the context of marketing campaigns in order to promote the apps is visible to everyone on the internet.

§ 9 Prohibition on circumventing myfluence

During the term of the contract and for a period of one (1) year after the end of the contract, the influencer is prohibited from directly offering, carrying out or undertaking to provide identical or substantially similar advertising services / marketing campaigns to advertising partners with whom business contact was established via our platform.
For each case of a culpable breach of their obligation under § 9 (1) of these GTC, the influencer is obliged towards us to cease and desist and to pay a contractual penalty due immediately, the amount of which is to be determined by us at our reasonable discretion and which may be reviewed by the competent court in the event of a dispute. For breaches during the term of the contract, the contractual penalty should as a rule not be less than 100% of the amount that we paid out to the influencer within a period of one year before the breach for carrying out marketing campaigns for the advertising partner for whom the influencer offered or carried out identical advertising services, or undertook to do so, in breach of § 9 (1) of these GTC. For breaches within one year after the end of the contract, the period of one year up to the end of the contract is decisive for assessing the standard contractual penalty. The influencer remains free to prove that no damage or only lesser damage has occurred.
We expressly reserve the right to assert claims for damages that exceed the payment of contractual penalties in amount in the event of a culpable breach of the obligations under § 9 (1) of these GTC. Contractual penalty payments are set off against claims for damages insofar as these exceed the contractual penalty in amount.

§ 10 Final provisions

Should individual provisions of the above GTC or parts thereof be invalid or void, the validity of the remaining provisions shall not be affected thereby. An invalid or void provision of these GTC shall be replaced by the valid provision that comes closest to the invalid provision in its economic result. The same applies in the case of gaps in the contract.
The law of the Federal Republic of Germany applies. The UN Convention on Contracts for the International Sale of Goods (CISG) does not apply. If you are a merchant, a legal person under public law or a special fund under public law, the place of jurisdiction for disputes arising from a contract with you is our registered office. This also applies to disputes concerning the breach of contractual obligations outside the Federal Republic of Germany. However, we expressly reserve the right to bring proceedings at any other statutory place of jurisdiction.
The influencer may transfer rights and obligations under the contract with us on the use of the platform, and under the resulting contracts on carrying out marketing campaigns for advertising partners, to third parties only with our express consent.

Last updated: September 2024