General terms and conditions
1. Supplier identification
These General Terms and Conditions (GTC) apply exclusively and to all contractual relationships between us, Anchor Media GmbH, Budapester Straße 45, 20253, Hamburg, Germany, entered in the Commercial Register of Hamburg District Court under Commercial Registry B (HRB) 136831, represented by Mr Jan Moritz Finke, VAT ID no.: DE45/702/01307, (“SL” — “squarelovin”) and you, our commercial customers (“Customers”).
2. Scope of application
SL’s offers are aimed exclusively at entrepreneurs, i.e. any natural or legal persons or partnerships with legal capacity who, in concluding the Contract, are conducting their commercial or independent professional activity (§ 14 of the German Civil Code).
2.2 Deviating provisions
Any deviating provisions of the Customer are not accepted unless we expressly agree to the application of said provisions in writing.
2.3 Changes to the GTC
The GTC apply in the version valid at the time of conclusion of the Contract. SL reserves the right to make changes to the GTC with future effect. The Customer may object to the new GTC at any time. In this situation, SL reserves the right to extraordinary termination.
3. Non-binding nature
SL’s offers are non-binding and without obligation. This also applies should SL have provided the Customer with calculations, product descriptions or other documents—including in electronic form—to which SL retains the property rights and copyrights.
4. Prohibition of set-off; rights of retention of customer
The Customer is entitled to rights of set-off and retention only insofar as its claim is determined to be legally valid or is undisputed.
5.1 Compensation claims; exceptions
The Customer’s compensation claims are excluded. This excludes compensation claims asserted by the Customer that arise from injury to life, limb or health or from violation of essential contractual obligations (cardinal obligations), as well as liability for other damages resulting from a breach of obligation committed intentionally or through gross negligence by SL, SL’s legal representatives or SL’s vicarious agents. Essential contractual obligations are those obligations that must be fulfilled in order to achieve the purpose of the Contract.
5.2 Violation of essential contractual obligations
In the case of a violation of essential contractual obligations, SL is liable only for foreseeable damage typical of the type of contract in question, provided that said damage is caused through simple negligence, unless the case involves compensation claims asserted by the Customer as a result of injury to life, limb or health.
5.3 Legal representatives and vicarious agents
The liability limitations stipulated in No. 5.1 and 5.2 also apply to the benefit of SL’s legal representatives and vicarious agents.
5.4 German Product Liability Act
The provisions of the German Product Liability Act remain unaffected.
5.5 Periods of limitation
The period of limitation for compensation claims asserted by the Customer is one (1) year. This does not apply to compensation claims asserted by the Customer as a result of injury to life, limb or health or to claims asserted pursuant to the German Product Liability Act.
6. Data protection
SL collects, processes and uses the Customer’s personal and company-related data (“personal data”) in the course of executing contracts. When doing so, SL observes the provisions of German data protection legislation and the German Telemedia Act. Unless the Customer gives its consent, SL shall only collect, process and use personal data to the extent required to execute the contractual relationship and to make use of and undertake accounting for telemedia. SL shall not use personal data for promotional purposes or for conducting market research or opinion polls without the Customer’s consent. The Customer may retrieve the data it has provided under its customer account or modify said data at any time. Further information can be found in SL’s Data Privacy Statement.
7.1 Maintaining secrecy
The parties agree to maintain secrecy with respect to confidential information. This obligation continues to apply after the Contract has ended.
7.2 “Confidential information”
“Confidential information” refers to all information and documents of the other party that are designated as confidential or must be considered to be confidential based on the circumstances, in particular information regarding operational processes, business relationships and expertise, business and marketing plans, and prices.
The following confidential information is excluded from this obligation:
- a) Confidential information that was already demonstrably known by the recipient at the time of concluding the Contract or that becomes known to the recipient through a third party following conclusion of the Contract without a confidentiality agreement, statutory provisions or official orders being violated in the process;
- b) Confidential information that is already public knowledge at the time of concluding the Contract or that becomes public knowledge following conclusion of the contract where this was not the result of a violation of this Contract;
- c) Confidential information that must be disclosed owing to statutory obligations or on account of a court order or order issued by an authority. Insofar as it is permissible and possible, the recipient obligated to disclose the information in question shall inform the other party in advance and give that party the opportunity to take action against the disclosure.
7.4 Contractors; employees
The parties shall only grant access to confidential information to such advisers who are obligated to maintain professional secrecy or who, prior to accessing said information, have been made subject to obligations that are commensurate with the confidentiality obligations of this Contract. Furthermore, the parties shall only disclose confidential information to those employees who are required to know said information in order to execute this Contract. The parties shall also impose on said employees an obligation to continue to maintain confidentiality after they have left the company to the extent permitted by labour law.
7.5 Contractual penalty
The parties are mutually obligated to pay a contractual penalty of EUR 5000.00 (in words: five-thousand euro) to the other party for any culpable violation of their confidentiality obligations within the meaning of No. 7.1. Any further claims remain unaffected by this.
8. Other provisions
8.1 No transfer of rights and obligations
The transfer of rights and obligations of the Customer arising from this Contract or the transfer of this Contract to a third party is permitted only with SL’s prior written consent.
The headings of individual sections and provisions of these GTC are provided solely for the purposes of clarity.
8.3 Applicable law
Subject to any other individual agreements concluded between the Customer and SL, the law of the FEDERAL REPUBLIC OF GERMANY exclusively applies to the contractual relationship between the Customer and SL, excluding the UN Convention on Contracts for the International Sale of Goods.
8.4 Place of jurisdiction
Insofar as the Customer is a businessman, a legal person under public law or a special fund under public law, the exclusive—and international—place of jurisdiction for all disputes directly or indirectly connected to the contractual relationship is SL’s registered office in HAMBURG, GERMANY. The same applies accordingly if the Customer is an entrepreneur within the meaning of § 14 of the German Civil Code.
II. Use of digital services
The use of any products, services or software provided on the website operated by SL or of other services on the website (collectively referred to as “digital services”) is undertaken on the basis that the Customer complies with the following supplementary provisions. If SL becomes aware of any violations of the Customer’s obligations, SL is entitled to delete the content in question. SL reserves the right to block and deny access to customers who violate the obligations arising from these GTC — even after a single violation.
2. Availability of digital services; data security; information provided; links
2.1 Availability; data security
As technology currently stands, it is not possible to guarantee continuous, full availability of the digital services. SL therefore does not assume liability for the continuous and consistently fault-free availability of the digital services. Faults and maintenance work may restrict or temporarily disrupt usage. Insofar as SL has an influence on the interruptions (e.g. in the case of maintenance work), SL shall ensure that such interruptions are kept as short as possible. The digital services are best used via DSL or, in the case of mobile applications, via LTE connection. If the digital services are used via mobile end devices, both the range of functions and the presentation of said services may be limited. SL assumes no responsibility for data security outside its sphere of control or for the risk of data loss when transferring data via the Internet.
2.2 Information provided
SL accepts no liability whatsoever for the up-to-dateness, accuracy, completeness or quality of information provided through the digital services. Any liability claims asserted against SL in relation to damages of a material or immaterial nature that are the result of usage or non-usage of information presented or the result of usage of incorrect and incomplete information are excluded. No. I. 5. remains unaffected.
In the case of direct or indirect references to external websites (hyperlinks) that are outside of SL’s area of responsibility, SL is liable only insofar as SL has knowledge of the content and insofar as it is technically feasible and reasonable for SL to prevent usage in the case of illegal content. Should SL become aware of any violations of law, SL will remove such links immediately. This provision also applies to all links and references provided by SL itself within its own online content, as well as to (in this respect: external) information entered by the Customer, e.g. messages created by the Customer and posted under TPC (No. II. 5.1) to request rights.
3. Prohibited content and usage
3.1 Reading out of digital services; harvesting
The reading out of data from the digital services, particularly for commercial purposes, is prohibited. The uploading of viruses or other malicious code is prohibited. The Customer also undertakes never to collect or harvest data from the digital services.
3.2 Server overload
The use of programs that place SL’s servers under an excessive load is prohibited.
4. Conclusion of usage agreement
5. Copyright, personal rights and industrial property rights
5.1 Third-party content (“TPC”); obligation to name the creator
The Customer undertakes to ensure that all content of any kind (third-party content — TPC) made available to the Customer within the context of the digital services is protected by copyright or intellectual property rights or industrial property rights to the benefit of the relevant rightholder. Furthermore, the Customer undertakes not to use TPC unless it has the adequate rights of use for the TPC.
In this regard, the Customer undertakes to always observe any general terms and conditions of the relevant rightholder (alongside these GTC).
The Customer further undertakes, when licensing the TPC (No. 6.1.3), to name the creator as the creator or the holder of the exploitation rights to the UGC in the appropriate place and in an adequate font size.
5.2 User-generated content (“UGC”)
5.2.1 Granting of rights in favour of SL
By using the digital services, the Customer is providing SL information, e.g. on products of the Customer, names, brands, business names and audio-visual content of various types, in particular images (collectively referred to as “UGC”), or is granting SL access to UGC. The Customer hereby expressly grants to SL all rights for the UGC required to operate the digital services in accordance with the purposes of the Contract. Furthermore, SL is entitled, but not obligated, to use UGC for its own advertising purposes free of charge and without any restrictions in terms of time or location. In this regard, SL is in particular entitled to name or describe the Customer, as well as its products and brands, as a reference customer, e.g. in press releases and promotional material, and to edit UGC within the boundaries of § 14 of the German Copyright Act and § 2 of the German Constitution, and in particular to make changes to format, size and colour in this respect.
5.2.2 Assurance of sufficient rights to UGC
The Customer assures SL that it has the rights to UGC required to be able to use said UGC within the context of the digital services and to be able to grant SL the rights specified in No. 5.2.1 with legal effect. If the Customer is in any doubt as to whether or not it has the rights required to use its UGC within the context of the digital services or to grant the rights to SL, then the use of said UGC within the digital services is prohibited. UGC is not reviewed by SL in advance. If SL is or becomes aware of illegal UGC, then SL will delete said UGC immediately.
5.3 Exemption from liability
The Customer shall exempt SL—at first request—from any claims asserted by third parties against SL in connection with use of TPC or UGC, in particular claims arising from violations of copyright or personal rights. If the Customer becomes aware of any violations of the rights covered by the Contract, then the Customer must inform SL of this fact immediately. SL is entitled to take suitable measures itself to defend against third-party claims or to enforce its rights. Before implementing any measures itself, the Customer must first agree said measures with SL. The exemption also includes the reimbursement of any costs that SL incurs or has incurred as a result of enforcing or defending its rights.
6. The application
6.1 Scope of services
6.1.1 Web application
On the website, SL provides the Customer with an analysis and marketing tool in the form of a web application (software as a service — hereinafter referred to as the “application”), which, following registration, the Customer can use to optimise one or more accounts registered with the image service “Instagram” provided by Instagram Inc., 1601 Willow Road, Menlo Park, CA, 94025, USA (www.instagram.com) (“Instagram”). The scope of the offer is as set out below in these GTC and in the relevant service description in the offer. Depending on the agreed scope of services, the following main functions are provided as specified in No. 6.1.2 to 6.1.4.
6.1.2 Evaluation and analysis of Instagram content
With this application, SL enables the Customer to evaluate and analyse the Customer’s own content provided via the Customer’s Instagram profile. The precise scope of services is described on the website and in the offer. The data generated from the evaluation is prepared for statistical purposes and collected, processed and used by SL. SL’s Data Privacy Statement governs this aspect in further detail.
6.1.3 Acquisition of rights of use to third-party content (“TPC”)
The application enables the Customer to contact other Instagram- users (“Instagramer(s)”) via the channels provided by SL in order to make a binding offer to Instagramers to acquire rights of use to certain TPC that Instagramers have published via their Instagram profile. The precise scope of services is described on the website and in the offer.
At the express request of the Customer, SL shall provide the Customer with licensing terms and conditions that the Customer can use as the basis for its offer to Instagramer. Instagramer can confirm acceptance of the Customer’s licensing offer by labelling the TPC with the key term (hashtag) specified by the Customer in the licensing offer. SL shall not be party to the licence agreement concluded between the Customer and Instagramer and has no influence on the conclusion of said agreement. SL merely provides the technical means by which the Customer can contact Instagramer.
The Customer undertakes only to request the acquisition of rights of use to TPC that Instagramer has already labelled with a key word (hashtag) that contains the Customer’s company or brand name.
Furthermore, SL expressly draws the Customer’s attention to any claims to remuneration asserted by Instagramer pursuant to § 32a of the German Copyright Act.
6.1.4 Photo galleries
The application enables the Customer to publish photos liked by the Customer (own images and TPC) in photo galleries on its website via the application. If desired, the Customer can link these images to its products, which will then be displayed when the user clicks on the image.
6.2.1 Setting up the customer account
In order to use the application, the Customer must first register on the website. The minimum information required to register is a first and last name, a valid email address and an individual password. Registration must be completed by an individual; in the case of registration of a company, registration must be completed by the company representative authorised to do so. Third parties are not permitted to register. Once registration has been successfully completed, a customer account (“customer account”) will be activated for the Customer that the Customer can log into via the website using its login details and also manage independently via the website. The customer account is non-transferable. No customer may have more than one customer account. If a customer maintains more than one customer account, SL is entitled to delete multiple customer accounts without warning. The Customer is not permitted to rent out or lend its customer account. The Customer has no right to grant access authorisation. In the case of a work group (No. 6.3.2), SL shall provide the Customer with an administrative customer account along with the agreed number of employee accounts with restricted user rights.
The Customer alone is responsible for keeping its password safe. In particular, this includes keeping the password strictly confidential and not passing on the password to a third party in order that said party can submit orders via the website. Should unauthorised parties gain knowledge of the password to the customer account, the Customer shall immediately change its password. SL assumes no liability for any damage suffered in connection with the theft of the password or the passing on of the password, or as a result of the Customer granting a third party access to the website through use of the password. The Customer shall immediately notify SL of any unauthorised use of its password by contacting: .
6.2.3 Deactivating the customer account
The Customer can deactivate its customer account by sending a corresponding electronic request to SL’s customer service team. The customer account will then be deactivated. This action cannot be undone. Any payment obligations that the Customer has towards SL at the time of deactivation remain unaffected by this action.
6.2.4 Linking to Instagram profile
In order to use the services of the application, it must be linked to the Customer’s Instagram customer account. To do this, the Customer must log into its Instagram account using its login details. Further information can be found in the Data Privacy Statement.
6.3 Licence models
SL offers various licence models (“subscription(s)”) for the application, which differ in terms of their scope of functions and, in some cases, are subject to a fee. SL reserves the right to modify the scope of functions provided in free subscriptions (“trials”) at any time or to stop offering trials
6.3.1 Conclusion of licence agreement
The ordering of the subscription by the Customer, e.g. by providing written confirmation of a non-binding offer by SL (“order”), is considered to be a binding offer by the Customer to enter into a contract. Insofar as the subscription order does not dictate otherwise, SL may accept this offer to enter into a contract within fourteen (14) days/weeks of SL receiving it. Acceptance can be provided either in writing (e.g. by means of order confirmation) or by activating the subscription. The use of permitted means of down payment by the Customer, despite the provision of remuneration, does not immediately lead to conclusion of a contract.
6.3.2 Work groups
In the case of group orders (“work groups”), e.g. for companies, SL concludes the Contract for the work group with the person responsible for or authorised to give directives to the members of the work group (“TL”). The TL hereby gives his assurance that he has adequate power of representation to do so. SL is entitled to request corresponding proof from the TL at any time. If the TL does not respond to such a request within one (1) week of receiving said request, SL is entitled to block the company profile and to bar the entire work group from using the application.
6.3.3 Licence fees; due date; right of retention
Unless agreed otherwise in individual cases, the current licence fees of SL at the time of conclusion of the Contract, plus statutory VAT, apply.
Unless agreed otherwise in individual cases, the licence fee is payable in advance and due within fifteen (15) days of receiving a corresponding invoice.
SL is entitled to withhold the agreed services for as long as the Customer is in default of payment. The right to assert claims for further damages remains unaffected by this provision.
6.4 Non-exclusive right of use
6.4.1 Activation of the application
Upon conclusion of the licence agreement, the Customer does not become the owner of the application. Rather, the Customer receives a non-exclusive, non-transferable, non-sub-licensable right of use, limited to the agreed period of time, to use the application as agreed. The licence does not cover other types of use.
6.4.2 Prohibited actions
Without prior written consent from SL in particular, the Customer shall not itself nor allow a third party to:
- Copy the application — excluding in the form of the app (No. 7) pursuant to the Contract;
- Modify, adapt, translate or redesign the application;
- c) Subject to § 69e of the German Copyright Act, reverse engineer, disassemble or decompile the application, or attempt in any other way to discover the source code of the application;
- d) Rent out, sub-license, lease, sell or assign the application, or transfer (or assert accordingly) the rights to the application in any other way;
- e) Remove information identifying rights or other designations (e.g. “powered by squarelovin”) in the application or in connection with the application; or
- f) Use, save, transfer or introduce an instrument, piece of software or process that interferes with or attempts to interfere with the functional sequence of the application.
The Warranty is excluded when using the trial version of the application. No. I. 5. remains unaffected.
In the case of paid use of the application, SL warrants that it will maintain the contractually agreed condition of the application for the duration of the Contract and warrants that contractual use of the application does not conflict with any third-party rights. SL shall rectify any material defects and defects of title relating to the rented item within a reasonable period of time. SL does not provide any further warranty for the application, subject to No. I. 5.
6.5.3 Customer’s duty of disclosure
The Customer shall immediately notify SL of any defects in the application in writing upon discovery of said defects. In the case of material defects, the Customer shall provide the details of the time when the defect occurred and the exact circumstances.
6.5.4 Initial defects
Liability on the part of SL for any initial defects (§ 536a of the German Civil Code) is excluded insofar as the requirements specified in No. I. 5. do not apply.
6.6 Contract terms; termination
6.6.1 Minimum contract term
Fee-based subscriptions have a minimum contract term of twelve (12) months from the start of the Contract (“minimum contract term”), unless SL and the Customer have expressly agreed otherwise. The right to ordinary termination is excluded during the minimum contract term.
6.6.2 Contract extension
If neither party terminates the Contract in writing at least three (3) months prior to the end of the relevant term, the contract term will be extended by at least a further twelve (12) months at a time.
6.6.3 Adjustment to licence fees upon contract extension
SL is entitled to increase the licence fees in light of the actual size of the Customer’s business upon extension of the Contract in relation to the reference values specified by the parties when concluding the Contract or—if such reference values have not been contractually agreed upon—in relation to the reference values published by SL.
6.6.4 Contracts with an indefinite term
If the parties have not agreed on a minimum term, either party may terminate the Contract with a notice period of three (3) months to the end of the calendar year.
Trials may be terminated at any time without having to give a reason and with immediate effect. The same applies to the customer account itself. Any existing payment obligations of the Customer remain unaffected by this.
6.6.6 Extraordinary termination
Both parties’ right to extraordinary termination for cause remains unaffected. If there is good cause for termination in favour of SL, the Customer is not entitled to request the reimbursement of any licence fees paid in advance. The Customer may only request the reimbursement of licence fees paid in advance if the Customer terminates the Contract for good cause and if the cause is within SL’s area of responsibility.
- a) There is considered to be good cause in favour of SL in particular if the Customer uses the digital services for purposes other than those specified in the Contract and does not stop doing so within a reasonable period of time as set by SL.
- b) There is considered to be good cause in favour of the Customer in particular if SL increases prices within the meaning of No. 6.6.3.
6.7 Legal consequences upon ending of the Contract
When the Contract ends, SL will deactivate the Customer’s customer account. All rights of use to the application granted to the Customer by SL will revert to SL with immediate effect when the Contract ends. The Customer may not continue to use the application once the Contract has ended.
7.1 App store
Insofar as the application is offered as an app for mobile end devices (“app”) via the portal or the online shop of a third-party provider (hereinafter referred to as the “app store”), the GTC of the relevant app store also apply.
7.2 In-app purchases
This applies in particular to cases where the Customer purchases subscriptions or digital (additional) services as in-app purchases (collectively also referred to as “subscriptions”) via the app store. Depending on how the relevant app store works, it may only be possible to terminate/extend such subscriptions through the provider of that app store.
These GTC valid as at: 29.05.2017