General Terms and Conditions

(Version 2019.09.01)

A. INTRODUCTION

1. General

1.1. Picstars (“Picstars” or “We”) offers services and products (the “Services”) through its platforms, such as their smartphone apps and their web apps (the “Platform”), which enable creators / influencers / micro/nano influencers / talents / (the “Creator”) to transform their social media content into marketing tools for brands (the “Brand”) (together the “Users” or “You”).

1.2. The Picstars contractual partner of a Brand is:

● registered office of the Brand in the EU: Picstars Deutschland GmbH, Fasanenstraße 42, 10719 Berlin, Germany (“Picstars DE”);

● registered office of the Brand outside the EU: Picstars AG, Seestrasse 353, 8038 Zurich, Switzerland (“Picstars CH”).

1.3. The Picstars contractual partner of a Creator is:

● Registered office of the Brand in the EU for which the Creator is acting under this contract: Picstars Deutschland GmbH, Fasanenstraße 42, 10719 Berlin, Germany (“Picstars DE”);

● Registered office of the Brand outside the EU for which the Creator is acting under this contract: Picstars AG, Seestrasse 353, 8038 Zurich (“Picstars CH”).

1.4. For services for which there is no agreement with a Brand, the Picstars contractual partner of a Creator is:

● Registered office or domicile of the Creator in the EU: Picstars Deutschland GmbH, Fasanenstraße 42, 10719 Berlin, Germany (“Picstars DE”);

● Registered office or domicile of the Creator outside the EU: Picstars AG, Seestrasse 353, 8038 Zurich, Switzerland (“Picstars CH”).

1.5. The respective Picstars contractual partner is hereinafter referred to as “Picstars”.

1.6. By opening an account on the Platform, accepting a proposal from, signing a contract and/or using the Services, you agree to be bound by these General Terms and Conditions (the “GTC”) and the Privacy Policy available at www.picstars.com/legal. This creates a contract between us and the User for the use of the Services (the “User Contract”).

1.7. Our offer is aimed exclusively at businesses. A business is a natural or legal person or a partnership with legal capacity, that acts in the exercise of its commercial or independent professional activity when concluding a legal transaction.

1.8. Picstars reserves the right to unilaterally change these GTC and will post such changes as described below.

2. Accounts and use of Services

2.1. To open an account on the Platform, you must be either a Creator or a Brand. When you open an account with Picstars, you must provide us with accurate and complete information. Additional conditions may apply.

2.2. By clicking on the button [“Sign up”], you make an offer to conclude the contract for the use of the Services and agree to the GTC and the Privacy Policy of Picstars in force at the time of registration. We accept this offer by sending a confirmation email to the email address provided during registration. We reserve the right to refuse the registration without giving reasons.

2.3. The registration is free of charge.

2.4. Subject to these GTC, you are hereby granted a non-exclusive, non-transferable, freely revocable license, limited in time to the duration of the User Contract, to use the Services in accordance with the functional scope of the Services. Picstars reserves all rights not expressly granted herein.

2.5. The services may include:

a. the provision of services via the Platform (including the apps (the “Apps”) for the Creators and the Cockpit (the “Cockpit”) for the Brands) to the Brands and to the Creators, enabling the Creators to provide advertising and/or sponsorship services for the Brands;

b. the promotion of Creators on the Platform, the placement of Creators with brands and the placement of brands with Creators;

c. other services agreed between the parties.

 

B. USE OF THE PLATFORM

3. USE OF THE PLATFORM

3.1. Subject to these GTC, we grant you a non-exclusive, non-transferable and revocable license to use the Platform, limited in time to the duration of the User Contract.

3.2. Users acknowledge that the use of the Platform requires compatible devices. In addition, some services may require different social media accounts to be connected to the Platform.

4. Contents on the Platform

4.1. Some areas of the Services allow users to publish or provide content such as profile information, videos, images, music, comments, questions and other content or information (such images, videos and other material that a user submits, publishes, displays or otherwise makes available through the Services is referred to as “User Content”). The User is responsible for all the User Content posted by the User. Picstars does not claim ownership of any User Content created by you.

4.2. You agree not to publish any User Content that is or contains any User Content: (i) present a risk of harm, loss, physical or mental injury, emotional distress, death, disability, defamation or physical or mental illness to you, another person or animal; (ii) present a risk of other loss or damage to any person or property; (iii) seek to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable information or otherwise.(iv) constitute or contribute to a crime or tort; (v) contain any information or content that we believe to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, invasive of privacy or publicity rights, harassing, degrading (public or otherwise), libelous, threatening, profane, obscene or otherwise objectionable; (vi) contains information or content that is unlawful (including, without limitation, disclosure of inside information under securities laws or trade secrets of third parties); (vii) contains information or content that you are not authorized to provide, whether by law, contract or fiduciary process; or (viii) contains information or content that you know is not accurate or current.

4.3. You agree that the User Content you post does not infringe any rights of any third party, including without limitation any intellectual property rights (as defined below) or privacy rights..

4.4. Picstars reserves the right, but has no obligation, to refuse and/or remove any User Content which Picstars, in its sole discretion, believes to be in breach of these GTC.

4.5. You grant Picstars a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, distribute, modify, create derivative works from, perform and distribute the User Content (including the Shared User Content as defined below) through your social media channels, the Platform and partner platforms (partner apps, brand apps, partner websites, brand websites, integration into other media with widgets, etc.) for the purpose of operating, developing, delivering and using the Services.

4.6. In addition, you grant us a limited license to use the User Content (including the Shared User Content) for reference purposes (for example, on the Platform and the Websites), to promote creators, and for marketing purposes.

4.7. Nothing in these terms and conditions restricts other legal rights of Picstars to user content, e.g. under other licenses..

 

C. ADVERTISING / SPONSORING

5. General information

5.1. Picstars undertakes to provide the advertising/sponsoring services agreed between Picstars, the Brand and the Creator(s).

5.2. The Brand allows its User Content to be embedded into the Creator’s User Content in accordance with the services agreed between the parties (the “Shared User Content”).

5.3. The Brand, Creator and Picstars may use the Shared User Content during the agreed campaign(s) and 30 days thereafter. Any further use requires the express consent of Picstars.

5.4. The Brand and the Creator confirm and agree that analytical data on campaign reach may be based on assumptions and comparative data. This is because Picstars does not provide the date depending on the social media channels (Facebook / Instagram / Twitter) and the type of user account (private vs. professional). Therefore, accuracy cannot be fully guaranteed. However, Picstars’ reports are binding for the calculation of the fees (if the fees are based on them)..

6. Duties of the Creator

6.1. As a Creator, you agree that by publishing User Content for a Brand, you are acting as an ambassador for such Brand. As such, you agree to

a. to represent the interests of the Brand;

b. to publish only such content as best represents those interests;

c. to follow the instructions of the Brand;

d. Identify your User Content so that it complies with the law (e.g. in Germany the Rundfunkstaatsvertrag), competition, youth and media laws, and the terms and conditions of the social media platforms you use;

e. not use any means to promote the User Content you publish on behalf of a Brand by maliciously and/or harassingly manipulating or inciting others;

f. not use any means to solicit fake followers, likes or comments to increase the reach of your User Content.

6.2. As Creator, you agree:

a. to provide Picstars with access to your social media accounts, profiles, images, posts, etc., so that Picstars can provide the Services;

b. to publish your User Content in accordance with the Services, publish it on social media platforms, and remove it at Picstars’ request;

c. that Picstars places its own brand, brand material, comments, tags, campaigns and other information on and about User Content in accordance with the Services.

6.3. As a Creator, you agree that by posting your User Content on your social media channels, you accept and agree to be bound by the terms and conditions of those social media channels.

6.4. As a Creator, you agree that Picstars will analyze the reach of your user content on the various social media channels, including sharing (including re-tweets), interests (likes) or comments, etc., in order to ensure that your content is relevant to you..

7. Relationship between the Creators and the brand

7.1. The Creators and the Brands recognise and agree that a Creator’s sponsorship and advertising services for a Brand establish a direct contractual relationship between them.

7.2. Picstars does not warrant that Creators and Brands will act in good faith and/or comply with their contractual obligations under these Terms and Conditions when using the Services. The Brand is therefore responsible for any control and intervention if a Creator does not meet the expectations of the Brand. This includes, but is not limited to, contributions that do not meet the agreed specifications. Through the cockpit, however, the brand has insight into the activities of its Creators and thus the opportunity to contact and influence their Creators.

7.3. Picstars undertakes to notify the Brand and the Creator of any breach of these Terms and Conditions and to temporarily remove or block any content deemed or deemed to be in breach of this Agreement.

7.4. The Creator and the Brand have the right to agree further rights and obligations applicable to them provided that (i) these conditions do not affect the rights and obligations of Picstars under these GTC and (ii) no further compensation is agreed between the Creator and the Brand for the Services unless Picstars gives its express and prior consent.

 

D. FEE-BASED SERVICES

8. Picstars Fees

8.1. Certain aspects of the Services may be offered for a fee (the “Picstars fee”). If Picstars offers paid Services and you choose to use the paid aspects of the Services, you will be notified of the prices and terms of payment in advance.

8.2. Picstars may add new Services for additional fees and charges, add fees and charges for existing services or change them for the future at any time in its sole discretion.

9. Creator Fees

9.1. Certain services of Creators to Brands can be provided for a fee (the “Creator Fee”) and are paid either directly by the Brand to the Creator or indirectly through Picstars.

9.2. In the event that Picstars charges this Creator Fee to the Brand on behalf of the Creator, Picstars will pay the Creator on behalf of the Brand. The Creator’s fee will be paid to the Creator at the earliest when Picstars has been paid by the Brand.

9.3. If there is any amount left over for Creator Fees after the agreed campaign has ended, this amount will be available to the Brand for future campaigns but will not be refunded unless otherwise agreed. If this amount is not used within 18 months of the end of the last brand campaign, the amount will be due to Picstars.

9.4. If a Creator does not provide the services as agreed, he is not entitled to the payment of the Creator’s fee. If the Creator has been arranged by Picstars, the Brand will be entitled to a proportional refund of the Picstars fee and a refund of the remaining Creator Fee, unless Picstars provides an equivalent Creator. If the Creator has been appointed by the Brand, the Picstars Fee will remain due and the remaining Creator Fee held by Picstars may be used for future campaigns as described above.

9.5. If the services provided by a Creator are subject to VAT, the Creator Fee is deemed to be inclusive of VAT and the Creator undertakes to provide either the Brand or Picstars (whatever the case may be) with the required VAT-compatible invoice.

9.6. In the event that the services provided by a Creator are subject to social security contributions, taxes or other charges to which an employer is normally subject, the Brand acknowledges these costs and undertakes to bear them and to indemnify Picstars.

 

E. INTELLECTUAL PROPERTY

10. Picstars’ property rights

10.1. Except for your User Content, the Services and all materials contained therein or transmitted thereby, including but not limited to software, images, text, graphics, illustrations, logos, patents, trademarks and service marks (including but not limited to the Picstars Brand), copyrights, photographs, audio, videos, music and User Content owned by other users (the “Picstars Content”), and all related intellectual property rights, are the exclusive property of Picstars and its licensors (including other users posting User Content on the Services). Except as expressly provided in this Agreement, nothing in this Agreement constitutes a license in or under such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publicly display, publicly perform, publicly adapt, adapt, adapt, or create derivative works from any Picstars Content. Use of the Picstars Content for any purpose not expressly permitted by the User Contract is strictly prohibited.

10.2. Picstars reserves all rights in the Picstars Content that are not expressly granted in these GTC, and no right or license to the Picstars Content is granted to you except as expressly set forth in these Terms.

 

F. CONFIDENTIALITY AND DATA PROTECTION

11. Secrecy

11.1. Picstars undertakes not to disclose to third parties any confidential information that has come to its knowledge in the course of the preparation, execution or performance of this contract, in particular the business or trade secrets of the User, and not to pass this information on to third parties without the authorization of the User.

11.2. This applies to any unauthorised third party unless the disclosure of information is necessary for the proper performance of Picstars’ contractual obligations.

12. Data protection

12.1. Picstars is entitled to pass on all user data to group companies for the purpose of providing the Services via these group companies.

12.2. Picstars is authorized within the scope of the legal regulations to store and evaluate user data for operational purposes (in particular market research). Anonymised data may also be used further. The User hereby expressly agrees.

 

G. CONCLUDING PROVISIONS

13. Duration and termination

13.1. The contractual relationship may be terminated by either party at any time without notice. However, if the parties have agreed on certain services, the contractual relationship can only be terminated at the end of the agreed services.

13.2. Each party shall have the right to terminate the User Agreement for cause by notice to the other party, including but not limited to (i) a material breach of agreement by the other party and such material breach of agreement has not been remedied within 10 days after notice of such breach; (ii) there is a repeated breach by the other party and such breach has been notified to the other party; (iii) bankruptcy proceedings have been instituted in respect of one party’s assets or the institution of such bankruptcy proceedings has been refused in the absence of assets corresponding to the costs of such proceedings or its business has ceased in the normal course of its business or is being wound up or dissolved.

14. Limitation of liability and indemnity

14.1. Picstars strives to provide a trouble-free operation of the Platform permanently. This is naturally limited to services over which Picstars has an influence. However, Picstars acknowledges that a complete and uninterrupted availability of the Platform is not technically feasible. In particular, Picstars reserves the right to restrict access to the Platform in whole or in part, temporarily or permanently, due to maintenance work, capacity concerns and other events beyond its control.

14.2. The liability of Picstars for damage caused by and in connection with the exercise of rights and obligations under the User Contract is excluded. This does not apply to:

a) damages resulting from injury to life, body or health which are based on a negligent breach of duty by Picstars or a legal representative or an auxiliary person of Picstars;

b) damage resulting from a breach of duty by Picstars or a legal representative or an auxiliary person of Picstars with regard to essential contractual rights and obligations which are indispensable for the proper performance of the contract and which endangers the achievement of the purpose of the contract (cardinal obligations);

c) damages which are based on an intentional or grossly negligent breach of duty by Picstars or a legal representative or an auxiliary person of Picstars;

d) the liability according to the product liability law.

14.3. The liability of Picstars for damages which are not due to injury to life, body or health and which are due to a negligent breach of duty by Picstars or a legal representative or an auxiliary person of Picstars, is in any case limited to contract-typical and foreseeable damages.

14.4. The disclaimer and/or limitation of liability of Picstars shall also apply to the legal representatives and agents of Picstars.

14.5. Picstars is not obliged to check the User Content and assumes no responsibility for it.

14.6. In the event that third parties assert claims against Picstars for violation of their rights based on user content or any other use of Picstars, you indemnify Picstars against all claims and damages, including court and attorney fees.

15. Miscellaneous; Amendments to the General Terms and Conditions of Business

15.1. Should individual provisions of these GTC be or become invalid or contestable in whole or in part, this shall not affect the validity of all other provisions or agreements. The contracting parties undertake to replace the ineffective provision by one that corresponds economically to the purpose of the contract.

15.2. These GTC constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, negotiations and discussions between the parties with respect thereto. Users’ terms and conditions do not apply.

15.3. The parties declare that each party has the right, power and authority and has taken all necessary measures to execute and fulfil its rights and obligations under these GTC.

15.4. The failure of either party to exercise or enforce any right under these GTC shall not be deemed a waiver of that right or a waiver of its exercise or enforcement at any time thereafter.

15.5. The contractual relationship and the resulting rights and obligations may not be transferred or assigned by you, but are fully transferable by Picstars.

15.6. Picstars may, in its sole discretion, send you notices, whether required by law or for marketing or other business purposes, by e-mail, in writing or on paper, or by posting such notice on our website. Picstars reserves the right to determine the form and method of notification of our users.

15.7. Picstars reserves the right to change these GTC at any time, as far as changes are concerned, which do not unreasonably disadvantage the user. Changes of the GTC will be announced at least four weeks before their coming into effect by e-mail. The changes are regarded as approved, if the User does not contradict the changes within four weeks after our communication by e-mail to terms@picstars.com. Picstars will inform the user of your opportunity to object and the significance of the deadline in the event of a change to the GTC. If the user makes use of his right of objection, Picstars has the right to delete his user account with effect from the date on which the amended GTC are to come into force. Picstars will also draw the user’s attention to this separately.

16. Applicable law and place of jurisdiction

16.1. These General Terms and Conditions are exclusively subject to the law at the registered office of Picstars (Federal Republic of Germany or Switzerland, depending on whether the contractual relationship with Picstars DE or Picstars CH was entered) under exclusion of the UN Convention on Contracts for the International Sale of Goods.

16.2. Exclusive jurisdiction for all disputes resulting from these terms and conditions is the registered office of Picstars (Federal Republic of Germany or Switzerland, depending on whether the contractual relationship with Picstars DE or Picstars CH was entered).