Influencer General Terms

New Fluence Influencer General Terms

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General terms and conditions for influencers

Status: April 2023

Preamble:

The contract is concluded with Freebiebox GmbH, Taborstraße 20/8, AT-1020 Vienna (Austria). Further contact details, company register number and the name of a person authorized to represent Freebiebox GmbH can be found on the contact form available at
www.new-fluence.com
 can be found in the imprint.

  • 1 General information

(1) These General Terms and Conditions apply to all business relationships with the influencers (hereinafter: “Influencer”) of Freebiebox GmbH (hereinafter: “New Fluence”), in particular to business relationships (cooperations) concluded via the New Fluence website (www.new-fluence.com), in writing by e-mail, SMS, social media, messenger service or by telephone, video chat or similar.

(2) New Fluence provides a service to public figures, bloggers and people with a presence on the Internet, in particular on social media (hereinafter: “influencers”) for the procurement of advertising orders (cooperations, product placement campaigns, give-away campaigns and other advertising services; hereinafter: “campaign”). In the course of campaigns, the influencer publishes content (hereinafter: “content”) for various companies (hereinafter: “customer”) on their social media channels (hereinafter: “profiles”).

The influencer can be both a consumer (Section 13 BGB) and an entrepreneur (Section 14 BGB). Influencers may voluntarily participate in campaigns commissioned by customers, but undertake to carry out the campaign conscientiously when accepting it.

(3) At New Fluence, advertising orders to influencers are usually processed in the form of an online social media campaign in which the influencer advertises a new brand (New Fluence customer) on their own influencer profile over a period of several days or weeks, daily, every 2-3 days or depending on the agreement. The influencers are then sent one or more “brand packages”. The advertised products/brands are exclusively from participating New Fluence customers, the New Fluence brand is not advertised.

The individual brands are advertised and presented completely separately and independently of each other by the influencer as part of the campaign. Influencers receive a briefing in advance, which they must adhere to. All guidelines, information, etc. must be observed in the content published by the influencer according to the briefing.

(4) The legal relationship in the course of the cooperation arises solely between the customer and the influencer. New Fluence assumes no liability and no guarantee with regard to the implementation of the brokered cooperations and will not verify them.

These contracts have no legal effect vis-à-vis New Fluence.

The influencer can only assert claims arising from the contract brokered by New Fluence against the advertising company (customer of New Fluence). No claims of any kind arise against New Fluence from the brokered cooperations.

  • 2 Scope of application

(1) If an influencer from us, New Fluence

  • Cooperation requests received
  • and/or receives mailings / messenger messages / newsletters
  • and/or participates in campaigns
  • and/or agrees to a cooperation and advertising campaign via email, Instagram, WhatsApp, etc.
  • and/or has applied to be an influencer
  • and/or has registered in the databases or influencer directories of New Fluence


The exclusive validity of these General Terms and Conditions (GTC) of New Fluence is agreed. New Fluence expressly does not permit the use of New Fluence’s services without prior acceptance of these GTC.

(2) All agreements made between the influencer and New Fluence in connection with the respective contract result from these terms and conditions and from individual agreements with the customer.

(3) The version of our GTC valid prior to the use of our services shall apply.

(4) New Fluence only accepts deviating, conflicting or supplementary general terms and conditions of the customer if and to the extent that an authorized representative (management) of New Fluence has expressly agreed to their validity in writing. This approval requirement applies in all cases.

(5) Individual agreements made with the influencer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC. The written form (order confirmation, contract, email) is decisive for the content of such agreements.

(6) Legally relevant declarations and notifications to be made by the Influencer to New Fluence after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective.

(7) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

  • 3 Cooperation

(1) The influencer undertakes to provide truthful information when submitting contact details such as full name, home address, e-mail address, telephone number, etc. and not to impersonate another person or use a name for which he/she is not authorized.

(2) The influencer must be 18 years of age or not 18 but 16 years of age and have the express consent of their legal representatives to work with New Fluence. Influencers with limited legal capacity must submit written permission from their legal representatives at the request of New Fluence.

(3) The influencer is not entitled to pass on specific content of a campaign that is not accessible to the public to third parties without written permission.

(4) The influencer undertakes not to transmit any content with viruses, Trojans or other programming that could damage New Fluence’s system. In the event of non-compliance, the influencer will be excluded from further cooperation with immediate effect. The latter shall compensate New Fluence for any damage incurred by New Fluence as a result of any culpable breach of the above obligations.

(5) The influencer undertakes not to disseminate any advertising or inaccurate warnings about viruses, malfunctions and the like or to encourage participation in snowball systems, chain letters, pyramid schemes and similar campaigns.

(6) The influencer is obliged to follow the instructions of New Fluence for each campaign and to comply with and recognize the rules set out in these GTC. If these regulations are violated, the influencer may be excluded from further cooperation with immediate effect and New Fluence may charge a processing fee of €100. There is no entitlement to the services of New Fluence.

(7) The influencer undertakes to provide New Fluence with truthful information about their profile and any other type of social media or web presence that the influencer uses with the intention of winning (this includes all profiles that the influencer submits to New Fluence).

(8) In particular, the influencer is obliged to provide truthful information about the number of subscribers, views and clicks or to inform New Fluence immediately of any ambiguities. Any type of purchased, fake or falsely acquired subscribers/followers that could mislead customers or New Fluence must be reported to New Fluence. By agreeing to the collaboration, the influencer assures that their community is resilient or real, i.e. that they are not buying fake followers or fake engagements (likes or comments) or have not bought them in the past.

(9) The influencer is strictly prohibited from buying subscribers, any manipulation and/or falsification of profile-related data, campaigns, campaign results, metrics and/or screenshots reflecting this data and/or deceiving New Fluence, customers or partners. Any violations of this may result in immediate termination of the collaboration and forfeiture of all or part of the influencer’s fees in order to settle any potential financial loss to New Fluence, customers and/or partners. Further claims for damages by New Fluence remain unaffected by this. In addition, the product value must be paid by the influencer plus a processing fee of €100

(10) Financial damages due to manipulation, deception and/or falsification can be claimed retroactively against the influencer and must be paid in full by the influencer.

  • 4 Conclusion of contract, service description

(1) New Fluence offers selected influencers participation and cooperation with a so-called brand package, in which the influencers present and advertise several different products and brands on their social media channels over a longer period of usually 5-30 days. The exact brands/products to be advertised as part of the cooperation are usually not yet defined when the contract is concluded and are only confirmed with the final briefing.

The participating brands must be presented completely separately from each other on different days in their own content pieces (videos/photos) on the influencers’ social media profiles (as story posts, feed posts, etc.), depending on the agreement. The written commitment to agreed conditions is valid via e-mail, SMS, social media, messenger service instead of IG, e-mail Whatsapp and all other channels and is considered a binding commitment by the influencer. In the course of this, the influencer undertakes to promote all brands and products that work with New Fluence and to observe and fulfill the conditions required in the briefing when publishing content.

(2) Before the content is published, the influencer receives a briefing containing all information about the participating brands, including the respective specifications and guidelines. The wishes of the brands are described and, in particular, the most important information about the brands, which must be included in the content, is included. The briefing also contains hashtags, tags, etc., which must be used by the influencer. New Fluence does not guarantee that all brands/products mentioned in the briefing are actually part of the cooperation and the influencer has no claim to any products. For various reasons, products/brands may be omitted after the briefing, which the influencer therefore does not receive, even though they were part of the briefing. Of course, the missing products/brands do not have to be advertised in this case either.

(3) The briefing is usually sent in advance to all influencers who have agreed in writing to cooperate with New Fluence and promote the participating brands (customer) on their social media channels. Since the influencers do not yet know the exact brands/products that they have to advertise as part of the campaign when they make a binding commitment to the cooperation, influencers have the option of rejecting the cooperation or excluding individual brands up to 5 days after sending the briefing to the specified email address, despite a binding commitment. After this 5-day period has expired, the briefing is automatically considered confirmed and all postings contained in the briefing must be published in accordance with the specified requirements.

(4) If a request is accepted by the influencer and the influencer confirms the cooperation by sending their contact details and/or a written confirmation, the influencer accepts the general conditions and undertakes to carry out the cooperation under the stated conditions. In most cases, this is an unremunerated collaboration. Here, the influencer is provided with one or more products by the participating brands and in return must create corresponding content pieces according to the briefing. The applicable conditions for the campaign were announced in advance and all detailed specifications can be found in the briefing. If a fee is agreed in addition to the product value, the influencer undertakes to carry out the order at the stated price and guarantees that the amount to be paid by New Fluence covers the complete creation and publication of the campaign (the separate promotion of all partner brands of the campaign). By accepting an offer and making a binding commitment, the influencer is obliged to create and publish the campaign in accordance with the briefing.

(5) Unless otherwise stated in the request, each campaign contains at least one correction loop. In the course of the correction loops, the influencer must accept requests for changes to the content by New Fluence or the customer and modify it or, if necessary, produce new content. As part of the correction loops, the influencer may also have to produce and publish further content on the respective product in order to complete the cooperation in accordance with the briefing

(6) The influencer is obliged, if this is indicated in the briefing, to submit all content for campaigns to New Fluence in advance for review and approval. The publication of content without approval is prohibited unless otherwise communicated with the influencer in advance. In the event of non-compliance and false publications, the influencer’s claim to remuneration shall lapse in part or in full. In addition, New Fluence may claim payment of the product value plus a handling fee of €100.

(7) If content approval is required, all content created for campaigns must be submitted to New Fluence at least 72 hours before the planned publication.

(8) New Fluence reserves the right to make changes to the campaign or withdraw the order from the influencer with immediate effect at any time before the influencer provides a service, without giving reasons. New Fluence will inform the influencer of this in writing in advance. There is expressly no entitlement to participate in a particular campaign.

New Fluence also reserves the right to change the participating products/brands even after the briefing. If products/brands mentioned in the briefing are omitted, they do not have to be advertised by the influencer and if new products/brands are added, the influencer has the opportunity to inform New Fluence within 3 working days of receiving the products that he/she does not wish to advertise them and then the obligation to create content for the respective product/brand no longer applies.

(9) If the campaign change communicated by New Fluence differs significantly from the original cooperation request (this is particularly the case if the price or scope changes), the influencer can revoke the campaign consent in writing.

(10) New Fluence is committed to the best possible communication between client and influencer to fine-tune the details of the content to achieve the best possible result.

(11) Unless otherwise agreed in writing, the influencer is obliged to publish the first pieces of content within 3 days of receiving the brand package (the various products). All content pieces to be created by the influencer as part of the cooperation must be published within 14 days of receipt of the products at the latest. Exceptions only apply if New Fluence has been notified in writing of a delay in content creation at least 1 day before the content publication deadline and there is a good reason. If New Fluence is informed of the delay in good time, New Fluence has the option of terminating the cooperation at an early stage and requesting that the products be returned. In this case, the claim to a possible fee for the cooperation on the part of the influencer expires.

(12) Agreements with the customer on site, via social networks, messenger services, by telephone or by any other means of which New Fluence has no knowledge, but which involve execution, payment and/or other relevant changes, are strictly prohibited for the influencer. The influencer also undertakes to inform New Fluence immediately of any misconduct by a customer, even if this would mean a possible termination of the order. The influencer himself is obliged not to make any offers to the customer that go beyond his original offer by circumventing the range of services offered by New Fluence. Any culpable breach of these regulations by the influencer will result in a contractual penalty of €500. Further claims by New Fluence remain unaffected.

(13) After completion of the campaign by the influencer, the influencer is obliged to make the intellectual property of the campaign content available to New Fluence in the form agreed in §8 of the GTC. The influencer will publish the campaign in his profile after approval and make it available to his subscribers (fans/followers) for a period of at least one year (if the medium used for the publication allows it and if there is no other agreement with the influencer). Once published, content may only be removed from the influencer’s profiles before the minimum duration of one year (or the agreed period) has expired with the written consent of New Fluence or the customer.

(14) New Fluence may at any time, at its own discretion and without justification, initiate the deletion of content created in the course of campaigns. The influencer is obliged to carry out the deletion immediately.

(15) The influencer undertakes to provide all accessible evaluation key figures (so-called “insights”) from all content parts within 5 days of the campaign being executed. In the case of an Instagram Story, this includes the complete insights of each individual sequence. If the influencer is unable to provide the insights due to force majeure, the influencer must inform New Fluence in advance and/or after becoming aware of this restriction. At the same time, the influencer undertakes to check the availability of the respective insights before the start of the campaign and, if necessary, to take preventive measures to ensure the availability of the insights. If the transmission is not possible due to the influencer’s own fault, the claim for remuneration may lapse in whole or in part and the value of the products provided must be paid by the influencer to New Fluence.

(16) By agreeing to the campaign and at the same time concluding the contract, the influencer undertakes to be available via email, Instagram or WhatsApp within a maximum of 3 working days during the collaboration. If New Fluence has no chance of reaching the influencer despite repeated messages, the cooperation can be terminated early and the influencer must pay the product values of the products sent plus a processing fee of €50 to New Fluence.

  • 5 Campaigns, campaign regulations
  • 5a Definitions of terms within campaigns

(1) Unless otherwise agreed in writing in New Fluence’s inquiry, the following definitions of terms apply:

  • Instagram feed post: Video or photo content uploaded to the influencer’s main channel on the Instagram social network
  • Instagram Story Post: At least 5 video or image sequences uploaded to Instagram in the “Stories” section of the account
  • TikTok: A video published on TikTok under the “Video” section
  • Instagram IGTV Post: A video with a minimum length of 2-3 minutes uploaded via the IG TV function of the Instagram app
  • Facebook post: video or photo content uploaded to the influencer’s main channel on the Facebook social network
  • Own YouTube video: Video content uploaded to the influencer’s main channel on the YouTube social network, with the video’s plot focusing exclusively on the campaign in question. The brand named in this contract as well as the usability and properties of the respective product must be used to the defined extent
  • Snapchat post: At least 5 video or image sequences uploaded to the influencer’s main channel on the social network Snapchat
  • Blog post: A text and image post in the influencer’s main blog. The article must clearly contain the customer’s product/service
  • Twitch: TV livestream on the influencer’s main channel on the social network Twitch, showing the product or service at regular intervals during the stream and a special mention in the headline/name of the stream
  • 5b Content requirements

(1) The content of a campaign is created exclusively for the respective customer; no products or their names or trademarks may be shown that could compete with the customer’s products. The content may not violate the rights of third parties, in particular their personal rights, the right to their own image, data protection law, name, trademark, copyright or design rights, and may not contain any content that could trigger competition law claims by third parties, in particular by competitors of the influencer, the customer or New Fluence.

(2) The content must be labeled as advertising from the outset in accordance with the legal provisions applicable in the country. This applies to any type of content. The influencer is responsible for correct media law labeling.

(3) Both the influencer and the product must be clearly visible in any visual content created, and the brand must be clearly recognizable and not mirrored so that it can be clearly read.

(4) The influencer has the option of designing the content according to their own creative freedom, but it must meet the influencer’s quality standards and the conditions of New Fluence specified in the briefing.

  • 5c Poor performance or non-performance, exemption

(1) If content, links, campaign links or other specifications are published incorrectly, the influencer is obliged to make subsequent delivery and correction. The influencer may not publish any further advertising posts in collaboration with competitor brands associated with the customer 4 weeks before and after the agreed posting time of the campaign.

(2) If the reach or impressions transmitted to New Fluence at the time of entry or at the last time is fallen short of by more than 30%, the influencer must compensate for the missing reach by additional postings (e.g. additional short reminder with swipe-up). This also applies if the influencer’s stories only achieve very low link clicks compared to other influencers and market standards, provided that an individual tracking link is used.

  • 5d Give-Away Campaigns/Barter Deal

(1) In most cases, collaborations between New Fluence and influencers are unremunerated barter deals. Basically, the influencer is provided with one or more products by the respective customer and must create corresponding content pieces in return. The applicable conditions and requirements are communicated to the influencer in advance when the cooperation is agreed and then in detail in the briefing.

(2) The influencer is obliged to create the content commissioned by the customer after receipt of the product. New Fluence reserves the right to revoke the campaign or exclude individual influencers from a campaign at its own discretion or after consultation with the customer at any time prior to the execution of the campaign or services provided by the influencer. There is no entitlement to participate in a give-away campaign.

(3) The influencer is responsible for the taxation of the products in accordance with applicable national law.

(4) If the influencer does not publish the agreed content on time in accordance with §4 point 11, the influencer is obliged to bear the costs of the products. The current RRP of the products is used to calculate the value.

  • 6 Rights and obligations of the contracting parties

(1) Under no circumstances are Influencers permitted to use content of any kind, contrary to the above-mentioned agreement, without the express consent of New Fluence or the customer, before the expiry of a time limit, if applicable. The data may be deleted from a profile and otherwise withheld from the public within the existing time limit. This obligation remains unaffected in the event of termination of the collaboration by the influencer or New Fluence.

(2) The influencer is obliged to inform New Fluence in advance if he wishes to transfer his channel to a third party for a fee or free of charge, provided that content is published on this channel which the influencer is contractually obliged to publish vis-à-vis New Fluence.

(3) If the influencer violates any of the requirements listed in the campaign conditions or in these GTC, New Fluence reserves the right to exclude the influencer from the respective campaign. The influencer is not entitled to remuneration. The same applies in the event that New Fluence only learns of a breach of the campaign terms by the influencer after the fact. In this case, New Fluence expressly reserves the right to claim compensation already paid to the influencer as well as all claims for damages.

(4) If the influencer violates one of his obligations mentioned in §4 and/or §5a-5d, in particular by not publishing the agreed content at all or not in the agreed form or duration, New Fluence is entitled to claim the costs of the product, including shipping costs, as well as all damages incurred by New Fluence plus a processing fee of €100,- from the influencer. Claims for damages arising from this may be compensated by New Fluence in part or in full by outstanding payments from other campaigns. The influencer has the opportunity to object to this in writing.

(5) New Fluence reserves the right to exclude influencers if a violation of the underlying GTC or individual campaign conditions is detected. The same applies if New Fluence comes to the conclusion that the content of the account or one or more channels of the influencer or his appearance in public is otherwise not compatible with the offer of New Fluence. There is expressly no entitlement to participate in campaigns or services offered by New Fluence.

(6) The influencer is obliged to attach necessary labels to the content if this is required by law. This includes in particular the labeling as “advertising”, provided that the legal requirements for this are met. The influencer must make inquiries about this himself. The influencer hereby expressly releases New Fluence from any obligation resulting from a lack of labeling.

(7) The influencer grants New Fluence the right to publish or publicly distribute or publicly reproduce all content of their social media accounts, in particular but not exclusively photos, videos, stories, in whole or in part. The influencer guarantees that the content of their social media accounts does not infringe any third-party rights, in particular but not exclusively personal rights, copyrights and trademark rights. The influencer indemnifies New Fluence from all claims of third parties that are asserted against New Fluence due to a violation, in particular but not exclusively, of personal rights, copyrights and trademark rights.

(8) The influencer is obliged to first consult with New Fluence in the event of negative experiences with the products of a New Fluence customer as part of the campaign before publishing negative criticism.

  • 7 Customer protection agreement

(1) All campaigns/cooperations that come about and/or are carried out via New Fluence are exclusive campaigns between the respective influencer and New Fluence. The influencer is prohibited from entering into another campaign with the respective customer or brand for a period of 12 months, bypassing the services offered by New Fluence, without New Fluence taking over the exclusive, complete communication with the customer and the handling of the campaign. The period begins from the last publication date organized via New Fluence.

(2) It is a campaign carried out via New Fluence if one of the following points applies and New Fluence (a) was the biller on behalf of the influencer, (b) the campaign is handled as part of the brand package, (c) has organized the shipment of products, (d) has conducted negotiations on behalf of the Influencer with the Client; and/or (e) has initiated a payment to the influencer for a campaign with the customer.

(3) Any culpable breach of exclusivity shall result in a contractual penalty of €500. New Fluence will issue the influencer with an invoice for the amount plus a fee after determining the violation. the statutory sales tax, if applicable.

  • 8 Copyright & other ancillary copyrights

(1) The influencer grants New Fluence an exclusive, perpetual right to use the campaign created. The right of the influencer to publish the campaign on their profile is excluded from the exclusivity. The authorship of the influencer is recognized. The influencer transfers to New Fluence all rights of use and exploitation relating to the campaign, including the right to publish and edit. The influencer allows New Fluence to publish the content without any time or geographical restrictions. The influencer permanently waives his right to be named as the author. The influencer also permits New Fluence to grant sublicenses to the respective customers to the extent described here.

(2) Upon acceptance of the campaign, the influencer confirms that he/she holds all rights to the content he/she may use in the campaign. photos, graphics, videos, texts or other materials used. This applies in particular to copyright, as well as all other ancillary copyrights, trademark rights, database rights and rights to one’s own image. The right to use the advertised brand or company logo for the creation and publication of the campaign is granted to the customer under sublicense from New Fluence.

(3) Furthermore, the influencer is obliged not to use any photos, graphics, videos, texts or other materials in the production whose content or use is punishable or otherwise violates criminal law. This includes in particular photos, graphics, videos, texts or other materials whose content is offensive, inciting, pornographic or extremist. Similarly, the influencer is obliged not to make any offensive, inciting, pornographic or extremist statements.

(4) Should the influencer violate any of the aforementioned obligations, New Fluence reserves the right to withdraw from the contract. The influencer indemnifies New Fluence against all third-party claims based on a breach of the aforementioned contractual obligation. He shall compensate New Fluence for any damage incurred by New Fluence as a result of any culpable breach of the above obligations.

(5) Images of the influencer already published on social media can be republished on the influencer’s own profiles (Instagram, TikTok, Facebook, Twitter, YouTube, Twitch, Pinterest, Snapchat), in particular the websites (www.new-fluence.com and/or other online and offline presences managed by New Fluence, for an unlimited period of time and without special consent. New Fluence may make significant changes to the content. Subscribers, site visitors & customers of New Fluence can thus view the influencers’ posts again on the New Fluence profiles, partner profiles, the website and/or other online presence(s). The use of the images by New Fluence can be objected to in writing at any time, in which case New Fluence must observe a period of six months for the complete removal of the content. Image and video material created during the collaboration with New Fluence, including campaign content, but also testimonial videos, exclusive content or similar commissioned by New Fluence, may be used by New Fluence, customers and/or partners for an unlimited period of time. For this purpose, the influencer grants New Fluence an unrestricted right of use in accordance with Section 8 (1).

(6) The removal of content by the influencer on their own profiles expressly does not oblige New Fluence to remove the content from online and/or offline print material managed by New Fluence.

  • 9 Remuneration & payments

(1) If a fee has been agreed in addition to the products provided free of charge, this shall correspond to the amount individually agreed in writing. This is a net price plus the statutory value added tax, if applicable.

(2) If the influencer is liable for VAT, the influencer must inform New Fluence of this in order to claim VAT from New Fluence.

(3) The influencer is obliged to issue an invoice to New Fluence in accordance with the statutory guidelines if a fee is paid in the course of a joint campaign.

(4) Influencers are responsible for their own tax matters. The influencer must pay tax on all campaign income generated by New Fluence, including benefits in the form of products, in accordance with the laws applicable in the respective country and report this to the relevant tax authorities. If required by law, the Influencer, as the biller, will inform New Fluence to list applicable taxes on their payment receipt.

(5) Individual amounts that have not been paid due to possible claims, such as consumer protection regulations and regulations from payment providers, such as are protected by “Paypal Buyer Protection” will only be paid out to the influencer after the respective withdrawal period has expired.

(6) Payment shall be made by bank transfer (unless otherwise agreed) to the valid bank account specified by the influencer. New Fluence is not liable for incorrect payment information. If payments are paid out incorrectly or irretrievably lost due to incorrect information or other fault on the part of the influencer, New Fluence will not be able to refund them. Payment information can be changed at any time in writing to New Fluence.

(7) However, New Fluence is not liable for payment defaults by the customer or unpaid claims due to force majeure against the influencer. New Fluence will only pay the agreed remuneration to the influencer if New Fluence has in turn received the agreed remuneration from the customer for the respective campaign. New Fluence explicitly does not pay in advance for any outstanding claims.

(8) The influencer does not receive any remuneration for give-away campaigns. The influencer can use the give-away provided for their own purposes after the campaign has ended. Beyond this, he has no claim against either New Fluence or the customer for remuneration or other services.

(9) If the influencer violates one of the points mentioned in paragraph §3 (Cooperation), the claim for remuneration against New Fluence expires completely.

(10) Incorrect amounts and/or incorrect transfers/payments by New Fluence must be reported and reimbursed immediately after the influencer becomes aware of them. The costs for bank charges and currency fluctuations are borne by New Fluence.

  • 10 Warranty

(1) The influencer is not entitled to uninterrupted availability of our service. The availability of advertising orders and/or support may be limited at times.

(2) The influencer is not entitled to a claim if the New Fluence website, telephone lines or similar are not accessible, this applies in particular if an imprint published via New Fluence fails or a campaign cannot be executed.

(2) The influencer warrants and guarantees that their account does not have any unusual or conspicuous follower activity. He recognizes that the type and number of his followers, likes or otherwise the quality and quantity of his reach are a value-forming factor for all campaigns he carries out. Conspicuous representations and false information in this regard constitute a defect and entitle New Fluence to withdraw from the contract and to claim damages.

(3) The statutory provisions shall apply to rights in the event of material defects and defects of title, unless otherwise stipulated in these GTC. In particular, New Fluence assumes no liability for services, goods or products provided to the influencer by the customer as part of a give-away campaign.

(4) New Fluence assumes no liability for the correct data collection of the generated tracking link or voucher code.

  • 11 Liability

(1) New Fluence is liable for intent and gross negligence without limitation, but for slight negligence only in the event of a breach of material contractual obligations, as well as in the event of impossibility of performance for which New Fluence is responsible and in the event of default. Liability is limited to the typical contractual damage that New Fluence had to expect at the time the contract was concluded due to the circumstances known at that time. In addition, New Fluence is liable without limitation for damages for which mandatory statutory provisions, such as the Product Liability Act, provide for liability.

(2) New Fluence is only liable for loss of data in accordance with the above paragraphs and only if such a loss could not have been avoided by appropriate data backup measures on the part of the influencer.

(3) The limitations of liability also apply mutatis mutandis to New Fluence’s vicarious agents.

(4) New Fluence has no further liability; in particular, New Fluence is not liable for content posted by customers or influencers, unless New Fluence makes this content its own by passing it on. In particular, New Fluence is not liable for failure to label the delivered content as advertising or permanent advertising.

(5) The Influencer is liable to New Fluence for breaches of its obligations under this contract, in particular under §6, if New Fluence is held liable for infringements committed by the Influencer.

  • 12 Secrecy

(1) The influencer undertakes to maintain secrecy about the offers for all campaigns and to treat this information confidentially. This includes both the offers submitted by New Fluence and all associated information, as well as the individual information of the respective campaign, which the influencer receives from New Fluence in direct consultation for the purpose of creating the campaign. This includes in particular the name of the customer, as well as the type of campaign, the platform, individual specifications and wishes for the campaign and the remuneration by New Fluence.

(2) In particular, the influencer is prohibited from disseminating, announcing or otherwise publishing this information on the Internet, in social networks and via other media.

(3) The influencer is also prohibited from publishing internal statements in messenger groups (Telegram, WhatsApp) or disseminating passages in any way offline or online.

(5) This obligation does not apply to such information,

(a) which were demonstrably already known to the influencer at the beginning of the collaboration or subsequently become known to the influencer from a third party without violating a confidentiality agreement, legal regulations or official orders;

(b) which are publicly known at the time the offer is made or are made public thereafter, unless this is due to a breach of this contract;

(c) which must be disclosed due to legal obligations or by order of a court or authority. As far as permissible and possible, the recipient obliged to disclose will inform the other party in advance and give it the opportunity to take action against the disclosure.

(6) Any culpable breach of these provisions shall result in a contractual penalty of €1000. Further claims by New Fluence remain unaffected.

  • 13 Behavior & consideration

2) If the influencer is part of communities and groups of New Fluence (e.g. on WhatsApp, Facebook or similar), the influencer undertakes to protect the interests of New Fluence there. New Fluence is entitled to temporarily or permanently exclude the influencer from participating in communities and groups if the influencer (for example, by making statements that are detrimental to business) violates or impairs the interests of New Fluence within the group/community. In particular, the influencer is not entitled to poach other influencers or customers of New Fluence.

(3) The influencer and New Fluence undertake not to make any negative statements to each other in public; this also applies to employees of New Fluence as well as customers and their products.

§14 Notes on data processing

(1) The protection of personal data is a top priority for New Fluence. New Fluence therefore provides separate information on the collection, processing and storage of personal data and the rights of data subjects in the Privacy policy from New Fluence. The influencer confirms the
Privacy Policy
which can be accessed on the New Fluence website (https://www.new-fluence.com/datenschutzerklaerung/), before using the services of New Fluence and to agree to them.

(2) The influencer revocably consents to the storage and processing of all personal data provided by him/her to New Fluence (e.g. contact form: Name, telephone number, e-mail address; registration form: Address, tax number, bank details, etc.). The influencer receives information about the data stored at New Fluence at any time. For this purpose, a written request must be sent by e-mail to info@new-fluence.com

(3) New Fluence may pass on profile and user data (e.g. insights) as well as personal data indispensable for the fulfillment of the contract, such as the name and address of the influencer for the dispatch of any products, to the respective customer without the prior consent of the influencer. This also includes passing on information to external platforms and agencies that communicate campaigns to New Fluence.

(4) Without the consent of the influencer, New Fluence will not use the influencer’s data for advertising, market or opinion research purposes as long as they are not directly related to a campaign.

(5) The influencer revocably agrees that New Fluence may contact him/her via remote means of communication (e.g. telephone, e-mail, SMS, messenger services, etc.). If the influencer wishes to object to being contacted by New Fluence, they must do so by sending an email to: info@new-fluence.com. In the revocation email, all communication channels through which New Fluence may no longer contact the influencer must be named. Any incompleteness in this respect shall not be at the expense of New Fluence. The actual receipt of the e-mail by New Fluence is decisive.

(6) The influencer can have their personal data stored by New Fluence deleted at any time. He informs New Fluence of his wish to delete the data in writing to the address specified in §14 para. 5 e-mail mentioned. The deletion will be carried out within ten working days.

(7) Deletion of the data stored in New Fluence’s database means that New Fluence can no longer fulfill its contractual obligations to the Influencer, as a result of which New Fluence will terminate the cooperation with the Influencer with immediate effect after deletion of the data. If not all data relevant for the payout is available by this time, the entitlement to a payout expires completely after 180 days.

(8) The data is stored internally, offline/online, in particular with CRM services such as Pipedrive, spreadsheets such as Gsuite (Excel sheets) and in cloud solutions, e.g. with the Apple iCloud, IONOS Cloud or similar.

  • 15 Final provisions

(1) New Fluence reserves the right to change these GTC at any time without giving reasons, unless this is unreasonable for the influencer. New Fluence will notify the influencer of changes to the GTC in good time. The influencer expressly grants New Fluence their consent to the transmission of the amended GTC via email. If the influencer does not object to the validity of the new GTC within six (6) weeks of notification, the amended GTC shall be deemed to have been accepted by the influencer. New Fluence will inform influencers of their right to object and the significance of the objection period in the notification.

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(2) The exclusive place of jurisdiction and place of performance is Vienna.

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(3) Austrian law shall apply to the exclusion of conflict of laws and the UN Convention on Contracts for the International Sale of Goods.

(4) These GTC are complete and conclusive. Amendments and changes to the contract must be made in writing; this also applies to the waiver of the written form requirement itself. The invalidity of individual provisions shall not affect the validity of these GTC as a whole. In place of an invalid provision, the provision that comes closest to the economic sense and purpose of the provision of the parties and is effective shall apply. Corresponding agreements may apply. The same applies in the event of an unintended loophole, which must be replaced by a provision that comes as close as possible to what was intended.

DEFINITIONS

“Campaign”

Implementation of a cooperation with an influencer within a predefined period of time at defined conditions. Usually as part of the brand package, in which several different brands are advertised by the influencer.

“Brand package”

One or more packages containing products from one or more different brands sent to the influencer. A brand package can be split into several deliveries. The wording brand package does not necessarily have to include physical brands/products; it can also refer to digital brands/products.

“Influencer” – Advertisers, bloggers, video producers and other people or companies who post on social media channels, whereby influencers can be both consumers and entrepreneurs.

“Posting” – Publication of content (images, videos, texts, etc.) on social media. Postings include all social media content, in particular Instagram stories, Instagram feed posts, YouTube videos, TikTok videos, etc.

“Social Media” – Social networks. Especially Instagram, Facebook, YouTube & TikTok

“Briefing “ – This contains important information about the campaign and the customer’s products to be advertised, as well as the brand’s expectations of the influencer.

“Content” – Content is defined as all photos, videos, etc. that are created by influencers and normally also published on social media channels.

“Brand” – New Fluence customers who book campaigns with New Fluence as companies, in which their products are then advertised by influencers, are referred to as brands.

“Mission” & “Cooperation”– An assignment or cooperation is the implementation of a joint campaign between New Fluence and an influencer. The influencer is commissioned to promote New Fluence’s partner brands on social media as part of the cooperation.