GENERAL TERMS AND CONDITIONS HYPER BOOM(last modified: 12.07.2020)
The following General Terms and Conditions ("GTC") apply between you ("you" or "you" or "your") and HYPER BOOM ("Hyper Boom"). Definitions of particular terms are contained in the appendix to these GTC, unless they are listed separately in these GTC.
The GTC consist of the General Terms and Conditions for Creator (together the "Creator GTC") as well as the General Terms and Conditions for Partners (together the "Partner GTC") (Creator and partners together also "Users").
Hyper Boom offers partners the opportunity to transform their customers ("Creators") into brand ambassadors with their platform and integrations in various third-party systems. Hyper Boom enables the Creators to become the advertising medium of the respective Partner and to receive a consideration from the Partner. This is called a "deal".
By using the Hyper Boom platform, the Hyper Boom website and/or the Hyper Boom app, the user agrees to the terms and conditions. Hyper Boom is entitled to change the terms and conditions at any time. In this case Hyper Boom will announce changes of the GTC on the Hyper Boom platform and by email. The user can contradict the changed terms and conditions within two weeks. If he does not do so, the agreement to the change is considered as given. Otherwise these terms and conditions will continue to apply unchanged, Hyper Boom reserves the right to terminate this contract if the continuation is unreasonable.
The terms and conditions of Hyper Boom apply exclusively to the use of the Hyper Boom platform and the deals. Deviating, conflicting or supplementary General Terms and Conditions of the Partner and/or the Creator only become part of the contract if and insofar as Hyper Boom has expressly agreed to their validity. This requirement of consent applies in any case.
Individual agreements made with the user in individual cases (including side agreements, additions and changes) have priority over these GTC in any case. For the content of such agreements a written contract or the written confirmation by Hyper Boom is required.
Legally relevant declarations and notifications to be made to Hyper Boom after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
References to the validity of legal regulations have only clarifying meaning. Even without clarification, therefore, the statutory provisions shall apply, unless they are directly amended or expressly excluded in these GTC.
Creator Terms and Conditions
1 Hyper Boom platform, contractual relationships
(1) Hyper Boom offers its users (in this case "Creator") a platform to advertise companies in the social media.
(2) Hyper Boom only establishes the connection between partners and Creator and is not a party to the contract and/or debtor of a deal or its performance promises.
(3) Direct service relationships exist between Creator and the partners with regard to the rights and obligations of a deal.
(4) Hyper Boom does not assume any liability or guarantee for the execution of the mediated deals and will not check them. The legal relationship concerning the deals only concerns the involved Partner and Creator. These contracts do not have any legal effect on Hyper Boom. The Creator can assert claims from the contract mediated by Hyper Boom exclusively towards the Partner. No claims whatsoever shall arise against Hyper Boom from the mediated contractual relationship.
2 Registration, Use, Account
(1) To use Hyper Boom, Creators must create an account on the Hyper Boom Platform either via the web or the Hyper Boom App ("Account").
(2) Creators undertakes to provide truthful information when registering and not to impersonate another person or use a name/instagram name that it is not authorized to use.
(3) Creator must have reached the age of 16 years. Exceptions can only be granted on the basis of a written application to Hyper Boom and the consent of Hyper Boom.
(4) The Creator is obliged to create only one account.
(5) Under certain circumstances, the Creator can link his social media accounts with Hyper Boom, as long as Hyper Boom offers the link for the respective social media platform. In this case, users of Hyper Boom can see what content the Creator has already published.
(6) The Creator is not entitled to transfer his account to third parties without written permission.
(7) The Creator is solely responsible for the security of his password. It is not allowed to transfer it to third parties. If the password has become known to third parties, Creator is obliged to change its password immediately.
(8) The Creator commits himself not to transmit any contents with viruses, Trojans or other programming that could damage the system of Hyper Boom. In case of violation, the Creator is immediately excluded from the participation of Hyper Boom. He will compensate us for any damage that we have suffered due to a possible culpable violation of the above obligations.
(9) The Creator undertakes not to distribute any advertising or inapplicable warnings of viruses, malfunctions and the like, or to request participation in lotteries, snowball systems, chain letters, pyramid games and comparable actions.
(10) The Creator is obligated to adhere to and accept the rules laid down in these Creator GTC and the Deals for every use of Hyper Boom. In case of violation of these rules, the Creator can be excluded from using Hyper Boom with immediate effect. In addition, Hyper Boom reserves the right to claim damages.
(11) The Creator can have his account deleted at any time. He informs Hyper Boom about his wish to delete his account by e-mail. The deletion will be done within ten days.
3 Deal conditions
(1) Deal conditions Creator Page:
(a) Deals are formulated in such a way that the fulfilment of a certain deal is expected according to the ideas of one partner. The Partner must always be presented in a positive and exclusively positive light in the context of the postings (both story postings and feed postings) and the corresponding comments on the postings. In addition, the offers may be individually specified. In each offer, the consideration is specified by the partners. This can be discounted prices from the partner, free products, participation in competitions, etc.
(b) The deals of the partners published by Hyper Boom represent non-binding offers to a Creator to accept the deal. Currently the Creator does not need to be registered with Hyper Boom to accept a deal. With the acceptance of this application by the Partner, the Deal and with it a contract between the Partner and Creator about the Deal comes into effect.
(c) By accepting a Deal, Creator is obliged to accept the Deal according to the description of the Partner. The Deal Conditions consider as Creator's service the publishing of text, image and/or video recordings, etc. (collectively "Content") on Creator's social media channels for a certain period of time in a certain length (e.g. Instagram Story length) on certain additional terms. Unless otherwise stated in the Deal Terms, Creator must comply with the following conditions:● A Story must be visible for at least 24 hours sein● Tags and links must be implemented and visible according to the Deal Terms. ● Content, especially pictures and video recordings must comply with the deal conditions. ● Stories must be published within 4 weeks after the deal is closed. After that the claim for the consideration expires. ● Posting in connection with a Hyper Boom Deal may not be linked to other cooperations. The partner (or his products / services) must be the focus of the posting and the corresponding description. ● Images and social media stories (e.g. Instagram and Facebook) as well as insights (i.e. analytical evaluation of a post on a social media channel, e.g. Instagram about demographics, clicks, views, likes etc) must be sent to Hyper Boom and/or the partner on request. werden● In case of negative experiences with partners, the Creator must consult Hyper Boom and is initially exempted from posting
The terms and conditions of a deal can be adapted and/or extended and/or modified in each case. If the deal conditions and these Creator GTC differ, in case of doubt, the deal conditions will take precedence.
(a) The deal conditions contain in each case, which consideration Creator receives in return for fulfilling the owed performance of a deal. This can be, among others, the following consideration:● Cash Incentive: If Creator's consideration is a payment in cash, it will be paid out as cashback.
● Voucher Code: If the Creator Consideration is a voucher code, the voucher must be redeemed within four (4) weeks of Creator's receipt of the voucher; if Creator does not redeem the voucher within this period, the deal will expire.
● Products/Services: Creator will receive the products listed in the Deal Terms and Conditions and may keep them upon fulfillment of the Deal. In case of services (e.g. use of an app), Creator can use the services listed in the Deal Conditions for the period of time specified therein. For further details regarding the consideration, § 6 of Creator's terms of business applies.
4 Rights and obligations of the contracting parties
(1) The Creator is under no circumstances allowed to delete content of any kind from a social media channel without the explicit consent of Hyper Boom or the partners before the expiration of a possibly existing time limit and to withhold it from the public in any other suitable form.
(2) Creatorn is not allowed to contact the partners unsolicited to ask for a renegotiation of the deal or a realization of the cooperation.
(3) In case the Creator violates any of the requirements listed in the deal conditions or in these GTC, Hyper Boom reserves the right to exclude the Creator from the respective deal. A claim to any consideration for the Creator does not then arise. The same applies to the case that Hyper Boom only learns about a violation of the deal conditions by the Creator afterwards. In this case, Hyper Boom expressly reserves the right to reclaim the remuneration already paid to the Creator.
(4) If the Creator violates one of the obligations mentioned in the deal conditions, especially by not publishing the agreed content at all or not publishing it in the agreed form or duration, Hyper Boom is entitled to claim the costs of the product including the shipping costs as well as all damages incurred by Hyper Boom as a result of this plus a handling fee of up to 50.00 EUR from the Creator.
(5) The Creator is obligated to attach necessary markings to the Content, if this is required by law. This includes in particular the marking as "advertisement", provided that the legal requirements for this are fulfilled. The Creator must obtain information about this himself. The Creator hereby expressly releases Hyper Boom and the Partner from any obligation resulting from a missing labeling.
(6) Hyper Boom and the Partners are permitted to insert so-called tracking links into the posts posted by the Creator in order to be able to measure and analyze the clicks in relation to a post.
5 Copyright and other neighbouring rights
(1) The Creator grants Hyper Boom an exclusive, time-unlimited right to use the created content, including any text, image and/or film material. Excluded from this exclusivity is the Creator's right to publish the posts created in the Deal on his other social media channels. The Creator's authorship is acknowledged. The Creator transfers to Hyper Boom all rights of use and exploitation concerning the Content, including the right to publish, upload to rating portals and internet directories, publish on its own websites and social media channels including unannounced reposting, as well as use of a post for a partner's social wall or use of such post in advertisements/advertising videos. The Creator grants Hyper Boom the right to further use and exploit the content without any time and space restrictions. The Creator permanently waives his or her right to copyright. The Creator also allows Hyper Boom to grant sublicenses to the respective partners in the scope described here.
(2) The Creator confirms upon conclusion of the contract that he/she holds all rights to the texts, emojis, photos, graphics, videos, texts or other materials he/she may use in the post. This especially concerns the copyright as well as all other ancillary copyrights, trademark rights, database rights as well as rights to his own image. The right to use the advertised trademark or company logo of the partners to create and publish the deal is granted to him in sublicense by Hyper Boom.
(3) Furthermore, the Creator is obliged not to use any photos, graphics, videos, texts or other materials in the production, the content or use of which is punishable by law or otherwise violates criminal law. This includes in particular photos, graphics, videos, texts or other materials whose content is insulting, inciting, pornographic or extremist. In the same way, the Creator is obliged not to make any insulting, seditionary, pornographic or extremist statements.
(4) Should the Creator violate any of the above mentioned obligations, Hyper Boom reserves the right to withdraw from the contract. The Creator releases Hyper Boom from all claims of third parties, which are based on a violation of his aforementioned contractual obligation. He will compensate Hyper Boom for any damage that we have suffered due to a possible culpable violation of the aforementioned obligations.
(1) The consideration by the Partner to the Creator is provided as stated in the respective deal.
(2) In case of cash incentive: The remuneration corresponds to the amount stated in the respective deal. This is understood as a net price excluding any legal sales tax and is due after an Instagram Story has been shown publicly for at least 24 hours and a post has been shown on Creator's Spocial Media account for one day.
(3) For product/service remuneration: The Creator does not regularly receive a cash payment for posts that contain the obligation to order a product/service and to post about it. The Creator may use the provided product/service for his own purposes after the conclusion of the deal. Furthermore, he has no claim to remuneration or other services either against Hyper Boom or against the Partner.
(4) The Creator receives the agreed remuneration by way of reimbursement. For this purpose, he has his valid bank details on request.
(1) The Creator has no claim to uninterrupted availability of the Hyper Boom platform or the deals. Access to the Hyper Boom Platform may be interrupted or restricted occasionally to enable repairs, maintenance or the introduction of new facilities or services. The Creator has no right to claim for any failure of the Creator if, for the above reasons or due to force majeure, the service of Hyper Boom cannot be accessed or if the Partner changes/discontinues a deal.
(2) For the rights in case of material defects and defects of title, the legal regulations apply, unless otherwise stipulated in these GTC.
(3) Hyper Boom does not guarantee the correct data acquisition of the generated tracking link of the partner.
(4) The Creator guarantees that the Partner and Hyper Boom can use the Post without violating the rights of third parties. In all other respects, the legal regulations concerning the warranty for material and legal defects apply.
(1) Hyper Boom is only liable in the mandatory legal case, e.g. for intent and gross negligence and in the case of personal injury. For slight negligence Hyper Boom is only liable in case of violation of essential contractual obligations, as well as in case of impossibility of performance for which Hyper Boom is responsible and in case of delay. The liability is limited to the contract-typical damage, which Hyper Boom had to expect at the time of the conclusion of the contract due to the circumstances known at that time. Furthermore Hyper Boom is liable without limitation for damages for which mandatory legal regulations, such as the product liability law, provide liability. The Creator is obliged to indemnify the Partner for any damages arising in connection with deals and counter-performance. Hyper Boom is not liable for damages that arise in connection with the use of a counter-performance.
(2) We are only liable for the loss of data in accordance with the above paragraphs and only if such a loss could not have been avoided by the Creator through appropriate data backup measures.
(3) The limitations of liability also apply analogously to our vicarious agents.
(4) Hyper Boom is not liable in any other way, in particular Hyper Boom is not liable (i) for all damages in connection with the consideration and (ii) for contents posted by the partners or Creator, as long as Hyper Boom does not adopt them by passing them on. In particular, Hyper Boom is not liable for the missing identification of the delivered content as advertising or permanent advertising mail.
(5) The Creator is liable to Hyper Boom for violations of his obligations from this contract, especially from § 4, if Hyper Boom is held liable for legal violations committed by the Creator.
(1) The Creator is obliged to keep silence about the offers of all deals and to treat this information confidentially. This includes the deals published by Hyper Boom as well as all related information, as well as the individual information of the respective deals that the Creator receives from the partners. This includes in particular the name of the Partner as well as the type of deal, the Hyper Boom platform and individual specifications and wishes regarding the deal. However, the Creator is allowed to recommend Hyper Boom to other Creators in general.
(2) In particular, the Creator is prohibited from distributing, announcing or publishing this information in any other form on the Internet, especially in so-called social networks and media.
(3) Excluded from this obligation is such information about the deal,
a) which were demonstrably already known to the Creator when the account was created, or which become known to the Creator afterwards by a third party, without violating a confidentiality agreement, legal regulations or official orders;
b) which are publicly known at the time of accepting the deal or are made publicly known afterwards, as far as this is not based on a violation of this contract;
c) which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permitted and possible, the recipient obligated to disclose shall inform the other party in advance and give it the opportunity to take action against the disclosure.
(4) Any culpable violation of these provisions shall result in a contractual penalty amounting to 30% of the agreed remuneration. Further claims of Hyper Boom remain unaffected.
10 Notes on data processing
(1) Hyper Boom collects data of the Creator within the scope of the deals and the provision of the Hyper Boom Platform. In doing so, Hyper Boom observes in particular the regulations of the German data protection laws, including the Basic Data Protection Ordinance and the Telemedia Act. Without the Creator's consent, inventory and usage data is only collected, processed or used to the extent necessary for the execution of the contractual relationship and for the use and billing of telemedia.
(3) The Creator has the possibility to retrieve, change or delete the data stored by him or the agreement under §10 (2) in his profile or by direct inquiry at Hyper Boom at any time. Furthermore, with regard to the Creator's consent and further information on data collection, processing and use, reference is made to the data protection declaration, which can be called up in printable form on the Hyper Boom website at any time.
11 Final provisions
(1) The law of the Federal Republic of Germany applies to contracts between Hyper Boom and the Creator, excluding the UN Convention on Contracts for the International Sale of Goods.
(2) The place of jurisdiction for all disputes arising from contractual relationships between the Creator and Hyper Boom is Dresden, provided that the Creator is an entrepreneur. In case of negative experiences/experiences that Creator has with partners, Creator is required to consult Hyper Boom first.
(3) Should individual provisions of these GTC be invalid in whole or in part, the validity of the remaining provisions of these GTC will not be affected. In place of the ineffective points, the legal regulations, as far as they exist, will be applied.
1 General information
(1) These general terms and conditions apply to all business relationships with partners, especially for business relationships that were concluded via the Hyper Boom platform, by e-mail or by telephone or in person. Contracts between Hyper Boom and the partner are only concluded if the partners are entrepreneurs (§ 14 BGB), legal entities under public law or a special fund under public law.
(2) Hyper Boom offers the partner a platform on which he can offer deals that require posts on social media channels and commission them according to his ideas. Hyper Boom accepts these orders and shows them to Creatorn, who can accept the deals of the partners. The Creator completes and publishes the Posts according to the Partners' ideas as specified on the Hyper Boom platform.
(3) The general terms and conditions of Hyper Boom apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the partners only become part of the contract if and insofar as Hyper Boom has expressly agreed to their validity. This agreement requirement applies in any case.
(4) Individual agreements made with the partner in a particular case (including collateral agreements, supplements and amendments) take precedence over these terms and conditions in any case. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the partners 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.
(6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
2 Registration, Use, Account
(1) During registration, the Partner undertakes to provide truthful information and not to impersonate another person or use a name for which he/she is not authorized.
(2) The Partner undertakes to create only one account.
(3) The Partner is not entitled to transfer his Account to third parties without written permission.
(4) The Partner is solely responsible for the security of his password. A transfer to third parties is not permitted. If the password has become known to third parties, the Partner is required to change his password immediately. In this respect he is responsible for the conduct of his employees and must instruct them properly.
(5) The Partner undertakes not to transmit any content with viruses, Trojans or other programming that could damage the system of Hyper Boom. In case of violation the partner will be immediately excluded from the participation of Hyper Boom. He will compensate Hyper Boom for any damage that Hyper Boom has suffered due to a possible culpable violation of the above obligations.
(6) The partner undertakes not to distribute any advertising or inaccurate warnings of viruses, malfunctions and the like or to request participation in competitions, snowball systems, chain letters, pyramid schemes and similar actions.
(7) Whenever Hyper Boom is used, the partner is obliged to comply with and accept the rules laid down in these conditions of participation. If these rules are violated, the partner can be excluded from the use of Hyper Boom with immediate effect.
(8) The partner can have his user account deleted at any time. He informs Hyper Boom about his wish to delete the account by email. The deletion will be done within ten days.
3 Conclusion of contract, service description
(1) An effective contract is only concluded if the partner is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. If Hyper Boom is instructed by a consumer, Hyper Boom reserves the right to revoke the acceptance within 14 days from knowledge of the consumer status.
(a) Duration of the contracts between Hyper Boom and the partner are specified in the contract. Contracts with a monthly term and a monthly fee will be extended by another month at the end of the contractually agreed term. A cancellation can be made at any time. Deals still outstanding at the time of termination will be terminated and invoiced to the partner at the end of the next month. An effective termination requires the written form and can be effected digitally (firstname.lastname@example.org), by post or, if applicable, through the respective App Store.
(b) Prices for the services of Hyper Boom towards the partner are specified in the contract.
(c) Contracts between Hyper Boom and the partner are also valid if the partner books the services of Hyper Boom over a web platform. The valid price and term will be displayed on the web platform and will be confirmed by the partner through the booking.
(3) With an extension of the Hyper Boom platform, the partner can offer his customers certain deals in his online shop or other systems.
(4) Hyper Boom provides the required extensions and systems for this purpose, but does not guarantee their correct functioning, as this is mainly dependent on the system partner.
(5) After a Creator has decided on the Partner's deal, Hyper Boom and its platform will take care of this process.
(a) Hyper Boom reads out the information of the Creator's order to contact him by mail.
(b) Hyper Boom then checks if the Creator's mail has been published. It does not check the content of the published content. This must be done by the Partner and Hyper Boom must be notified if necessary.
5 Copyright law
(1) After completion of the post by the Creator, Hyper Boom is obliged to provide the Partner with the intellectual property of the contents of the post in a suitable form for a fee. For this purpose, the partner is regularly provided with a link to the Hyper Boom platform of Hyper Boom, where he can check the content of the Post.
(2) The Partner shall only be granted a right of use to the content of the Post to the extent that it may share the Post on its own social media channels and integrate "embedded" on its own homepage. The Partner shall name the author in an appropriate manner in each case. He shall not be entitled to any rights of use beyond this, in particular the right to publish, distribute or make publicly available. For a transfer of rights of use a separate agreement with Hyper Boom is required. Hyper Boom assures to be allowed to dispose of all transferable rights to the contents. Hyper Boom exempts the partner from all claims of the producing Creator regarding copyright.
(3) The Partner transfers to Hyper Boom a simple right of use of the respective brand or company label as well as all other intellectual property rights. The partner confirms to Hyper Boom upon conclusion of the contract that Hyper Boom may dispose of all industrial property rights and intellectual property rights related to the partner, especially with regard to the contents of the deals. The partner expressly indemnifies Hyper Boom from possible existing claims of third parties in this regard. This right of use is limited in time and content to the duration of the deal and its publication on the Creator's social media channels. Hyper Boom is entitled to grant the producing Creator a corresponding sublicense for this purpose.
(4) Within the framework of a give-away deal, the Partner is obliged to transfer all rights necessary for the production of the content to the Creator. This applies above all to the rights to the respective trademark or company label concerned and to all other intellectual property rights.
6 Remuneration and commission
(1) Fees can be viewed on the Hyper Boom platform, the App Stores or the marketing materials used by Hyper Boom and are determined according to the package booking, but are usually monthly prices, the amount of which depends on the selected package with fixed price and own use. Hyper Boom and partners can also make individual agreements on fees. Individual agreements are contractually agreed upon.
(2) The prices set by Hyper Boom are net prices, i.e. exclusive of any applicable sales tax.
(3) Unless otherwise agreed, fees are due monthly on the first of each month. If the contract with Hyper Boom was concluded via a third party platform (e.g. Shopify App Store), the agreed amount will be charged via this third party platform.
Section 7 Warranty
(1) The partner has no claim to uninterrupted availability of the Hyper Boom Platform. Access to Hyper Boom may be interrupted or limited occasionally to enable repairs, maintenance or the introduction of new facilities or services. The partner has no claim for failure if the service of Hyper Boom cannot be accessed for the above reasons or due to force majeure.
(2) Withdrawal rights of the partner in case of material defects and defects of title are hereby excluded, unless they are mandatory by law.
(3) The basis of the liability for defects is in particular the agreement made about the quality of the contents of the mail. The partner's order descriptions within Hyper Boom App.
(4) Hyper Boom guarantees the agreed quality. If the content of the mail corresponds to the specifications and descriptions provided by the partner, the partner cannot refuse to accept the mail, as long as it does not deviate significantly from the original order and only complaints regarding the appearance of the mail do not concern the agreed quality. This shall be the case in particular if the Partner has not made any specifications in its offer with regard to the parts of the Mail which are the subject of the complaint.
(6) The partner has to check the Product Placement Deal Posts immediately after receipt for obvious defects and to inform Hyper Boom immediately if there are any, otherwise a warranty for these defects is excluded. This applies to the technical usability of the contents as well as to the agreed quality in terms of content, graphics and artistic quality. The same applies if such a defect is later revealed. § 377 HGB applies.
(7) The right of the partner to reduce the price or to withdraw from the contract at his discretion in the event of a one-off failure of the repair or replacement delivery remains unaffected. A right of withdrawal shall not exist in the case of insignificant defects. If the partner claims damages or compensation for futile expenses, Hyper Boom is liable according to § 7 of these partner terms and conditions.
(8) Warranty claims due to material defects expire within one year. The limitation period begins with the transfer of use of the contents by providing the link. For claims for damages and claims for reimbursement of futile expenses § 8 applies.
(9) If a Creator does not post a link as a result of the mediation by Hyper Boom, the Partner will not be charged the commissions of the Creator and the Hyper Boom platform as such.
Section 8 Liability
(1) Hyper Boom is liable for intent and gross negligence and in the case of personal injury without limitation, for slight negligence, however, only in the case of violation of essential contractual obligations, as well as in the case of impossibility of performance for which we are responsible and in the case of delay. The liability is limited to the contract-typical damage, which Hyper Boom had to expect at the time of the conclusion of the contract due to the circumstances known at that time. Furthermore Hyper Boom is liable without limitation for damages for which mandatory legal regulations, such as the product liability law, provide liability.
(2) Hyper Boom 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 security measures on the part of the partner.
(3) The limitations of liability also apply analogously to our vicarious agents.
(4) Hyper Boom is not liable for any further liability, in particular Hyper Boom is not liable for contents posted by the Partner or the Creator, unless Hyper Boom makes them its own by passing them on to third parties.
(5) Hyper Boom is especially not liable for missing identification of the delivered mail as advertising or permanent advertising mail. If the Partner wishes the content to be marked as advertising, the Creator is to be informed of this. The Partner hereby expressly releases Hyper Boom from any obligation resulting from a missing labeling.
(6) If the Partner sends materials, products or other items to Creator for the purpose of creating the post, Creator is solely liable for the condition and return of the materials, products or other items provided. Hyper Boom does not assume any liability or guarantee for the materials, products or other objects left to the Creator.
9 Contractual penalty
If the Partner (i) enters into a contractual relationship on deals directly with the Creator, bypassing our service offer, after the Creator's offers have been transmitted to the Partner by mediation via the Hyper Boom platform, by e-mail or telephone and/or (ii) within 6 months after completion of a product placement deal and making it available to the Partner, enters into a contractual relationship on the creation of a further deal which is no longer covered by the deal originally created with the assistance of Hyper Boom, a contractual penalty of EUR 1,000 (one thousand euros) per violation is payable.
10 Customer reference
(1) Unless otherwise agreed or the partner does not expressly object, the partner agrees with the conclusion of the contract to serve as a reference for Hyper Boom. The references may be presented in digital as well as in non-digital form. Hyper Boom is allowed to use the partner's company and logo as well as other publicly known information such as industry sector.
(2) The partner can demand the removal of the reference, if the last placed order was at least five years ago. In addition, the partner can revoke the consent at any time and demand the removal, provided that personal data are affected by the publication as a reference. In this respect, reference is made to the data protection regulations. The Partner is also entitled to a right of removal if the naming of the Partner as a reference demonstrably affects special business interests of the Partner, in particular business secrets.
(3) If Hyper Boom is obligated to remove the reference according to the preceding paragraph, the partner grants a period of one month for slightly variable uses (e.g. website, emails, social media channels, etc.) and a period of six months for all other uses to remove the reference.
(1) The Partner undertakes to maintain complete silence about the offers and to treat this information confidentially. This includes in particular all details, information and data about the participating Creator, the agreed upon prices, as well as in particular details about the platform itself. This also includes the name of the Creator as well as the type of deal and the content of the agreements between Creator and Partner.
(2) In particular, the Partner is prohibited from distributing, announcing or publishing this information in any other form on the Internet, especially in social networks and media.
(3) Excluded from this obligation is such information about the deals,
a) Which were demonstrably already known to the partner at the time of the conclusion of the contract or subsequently become known to the partner by a third party, without thereby violating a confidentiality agreement, legal regulations or official orders;
b) Which are publicly known at the time of discontinuation of the offer or are made publicly known thereafter, insofar as this is not based on a breach of this contract;
c) Which must be disclosed due to legal obligations or by order of a court or an authority. To the extent permissible and possible, the recipient obligated to make disclosure shall inform the other party in advance and give it the opportunity to take action against the disclosure; or
d) Whose publication the Creator and/or Hyper Boom has agreed to (e.g. attribution Creator in case of reposting).
(4) Any culpable violation of these regulations will result in a contractual penalty amounting to 30% of the agreed fee. Further claims of Hyper Boom remain unaffected.
12 Notes on data processing
(1) Hyper Boom collects data of the partner in the context of the completion of contracts. Hyper Boom observes in particular the regulations of the Data Protection Basic Regulation (DSGVO), the Federal Data Protection Act and the Telemedia Act - in each case if and as far as applicable. Without the consent of the partner, inventory and usage data will only be collected, processed or used to the extent necessary for the execution of the contractual relationship and for the use and billing of telemedia.
(2) Without the consent of the partner Hyper Boom will not use data for purposes of advertising, market or opinion research.
(3) The partner or his employees have the possibility at any time to access, change or delete the data stored by Hyper Boom in his profile, if it is personal data. Furthermore, with regard to the partner's consent and further information on data collection, processing and use, reference is made to the data protection declaration, which is available in printable form on the Hyper Boom website at any time.
13 Final provisions
(1) The law of the Federal Republic of Germany applies to contracts between Hyper Boom and the partner to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Contract language is exclusively German.
(2) Place of jurisdiction for all disputes arising from contractual relationships between the partner and Hyper Boom is Dresden.
(3) Hyper Boom is entitled to change the above terms and conditions of participation at any time. In this case Hyper Boom will inform about changes of the conditions of participation on its platform and by email. The partner is given the opportunity to object to the changed conditions of participation within two weeks. If he does not do this, the agreement to the change is considered as given. Otherwise, these terms and conditions will continue to apply unchanged.
(4) Should individual provisions of these GTCs be invalid in whole or in part, the validity of the remaining provisions shall not be affected. In place of the ineffective points, the legal regulations, if any, shall apply.
"Deals" - any advertising cooperation between Creator and Partner initiated via Hyper Boom, which may take the form of product placement deals, performance deals and give-away deals etc. The subject of a deal is the creation of posts by Creator on the one hand, and performance of the consideration by Partner on the other hand.
"Consideration" - any material consideration promised by a Partner for the fulfillment of a deal, e.g. payment in cash, provision of product, use of services, etc.
"Creator" - advertisers, bloggers, video producers and other persons or companies who post on social media channels, whereas Creators can be both consumers (in the sense of § 13 BGB) and entrepreneurs (in the sense of § 14 BGB).
"Partners" - companies that place deals online via Hyper Boom, offer Creatorn and finally commission it
"Post" - any publication of a text, image, video or other content by the Creator on one or more social media channels in accordance with the terms of the Deal and other policies of the Partner.
"Social Media Channels" - Instagram, Facebook, twitter and other so-called social and other media used for publishing content.
"Budget" - Maximum amount the Partner is willing to pay for Hyper Boom deals and services provided by the Creator mediated by Hyper Boom.