Creators Terms & Conditions

Creator Terms & Conditions – Version 3: last amended on 07/05/2024

These Privacy Policies have been automatically translated from German. Until establishment of the British Ltd, Speekly still falls under the German Speekly GmbH. And so until then, the terms and conditions of Speekly GmbH apply. The original, German version can be found here.

Preamble
Speekly GmbH, Stolberger Str. 90 D, 50933 Cologne (hereinafter ‘Speekly GmbH’) is the operator of the Speekly platform (hereinafter ‘Speekly’). Speekly can be accessed at the web address ‘www.speekly.de’.
Speekly enables interested parties (hereinafter referred to as ‘Brand’) to commission the creation of video and photo content (hereinafter referred to as ‘Content’) and to acquire rights of use to this Content. The Content is used in particular for the purposes of online marketing of the Brands or their products in the context of social media and other advertising and product marketing activities.
For the creation of content, a brand places an order with Speekly GmbH via Speekly. Speekly GmbH will subcontract the creation of the content to an external provider (hereinafter ‘Creator’).
Before bindingly placing the order with Speekly GmbH, the brand can make a selection as to which Creator is to be subcontracted with the creation of the content by Speekly GmbH. For this purpose, the Brand will create a description of the desired content with specifications (hereinafter ‘Briefing’) and transmit this via the intended functions on Speekly (hereinafter ‘Order’).

The brand subsequently places an order with Speekly GmbH via Speekly to have the content created by subcontracting the selected Creator. Speekly GmbH will place an order with the selected Creator to create the content in accordance with the briefing on its own responsibility.
Once the content has been created by the Creator, the Creator will upload the content to Speekly and thus make it accessible to Speekly GmbH and the brand.
Creators and Brands (hereinafter also referred to as ‘Users’) can access Speekly by opening a user account on Speekly.de (hereinafter referred to as ‘Account’) and providing the necessary information. When opening an Account, Users must accept these General Terms and Conditions for the use of Speekly. After opening an account, users can utilise the functionalities of Speekly.
It is the user's responsibility to carefully check or seek expert advice as to whether Speekly meets the user's requirements. The user is also responsible for ensuring that he fulfils the minimum hardware and software requirements for using Speekly. The creation and maintenance of the user's connection to the Internet is not part of this contract, but is the responsibility of the user.
The following GTC (the ‘Creator GTC’) govern - in addition to the Speekly GTC (available at www.getspeekly.com/terms-and-conditions) - the legal relationship between Speekly GmbH and Creator.

1 Scope of application
(1) The Creator GTC govern special provisions between Speekly GmbH and the Creator. They supplement the Speekly GTC, which apply in addition to these Creator GTC.
(2) If a Creator uses its own terms and conditions and these deviate from these GTC, the Creator GTC shall take precedence, even if Speekly has not expressly objected to the Creator's terms and conditions.
(3) The following order of validity shall apply to the various contractual documents:
Any existing individual agreements
these Creator GTC
the Speekly GTC

2. Subject matter of the service
   (1) The Creator shall create the commissioned content in accordance with the briefing provided by the brand via Speekly and shall transfer the rights to this content to Speekly GmbH in accordance with the provisions of Section 5 of these Creator T&Cs.
   (2) The Creator shall personally carry out the creation of the Content or use carefully selected persons for assistance or content creation, which it commissions on its own responsibility (hereinafter ‘Co-Creator’). The Creator shall be visible or appear in the content himself or use other persons selected by Brand who have agreed to the transfer of rights.
   (3) The delivery and handover of the Content by the Creator shall take place by uploading the Content using the function provided for this purpose on Speekly. Unless otherwise agreed, the Creator must upload the content within 7 calendar days of conclusion of the contract and receipt of the means of production (as defined in more detail in Section 7 of these Creator GTC) at the latest.(4) The Creator is contractually obliged to make a one-off appropriate adjustment to the contractually owed content as part of one (1) feedback loop. This one-off adjustment is covered by the contractual fee. Such an adjustment can only be requested if the change requests remain within the framework defined in the briefing. A requested adjustment must be made by the Creator within 3 calendar days, unless otherwise agreed. The Creator is not obliged to make adjustments if the requirements set out in the adjustment request can only be realised with disproportionate effort. The Creator's warranty obligations in the event of defective performance shall remain unaffected.
   (5) The Creator shall not be entitled to any claims or rights of its own arising from the legal relationship between Speekly GmbH and third parties (‘third party’ means any natural or legal person who is not a party to these Creator GTC) (in particular the commissioning brand).
   (6) The Creator guarantees that the agreed content will be created in accordance with the briefing, any additional services and any changes or clarifications agreed following the briefing.

3. Conclusion of contract; right of cancellation
   (1) The submission of the application by the Creator on Speekly constitutes an offer by the Creator to Speekly GmbH to conclude a contract regarding the creation of the content by the Creator. The content of the offer relates to the definition of the briefing by the brand in accordance with Section 3 (1) of the Speekly GTC. The Creator is bound to the offer for three weeks, unless he withdraws his application until the selection by the brand, which is possible at any time without giving reasons.
   (2) The contract is concluded between the Creator and Speekly GmbH through the acceptance of this offer by Speekly GmbH. Acceptance is effected by Speekly GmbH sending an electronic confirmation to the Creator by e-mail.
   (3) Speekly GmbH is not obliged to accept the offer. The creation of an offer (application) is not remunerated.
   (4) Speekly GmbH may withdraw from the contract if the brand order is terminated prematurely. This is particularly the case if the brand does not send the means of production required for the creation of the content (as defined in more detail in Section 7) on time. In this case, the commissioned Creator shall receive a cancellation fee amounting to 50% of the remuneration originally agreed between the Creator and Speekly GmbH plus any additional services.

4. Remuneration
   (1) Speekly GmbH owes the Creator a fee for the creation of the commissioned content. The minimum remuneration for a specific order will be displayed on Speekly before the application is submitted. The Creator may offer additional services within the posted briefing or an order that has already been placed. If the brand accepts the offer, a corresponding binding contract amendment is documented by the provision of an additional order in the chat. Payment of the price increase is made via an additional payment link. The invoice is issued in accordance with the general contract procedure. Invoicing shall be carried out using the credit note procedure, whereby the credit note can be retrieved by the Creator as a PDF file via Speekly.
   (2) The Creator's claim for payment shall become due upon acceptance of the content by Speekly GmbH; Section 641 (2) BGB remains unaffected. Acceptance must take place when the content has been uploaded to Speekly and corresponds to the agreed contractual content in accordance with the brand briefing and any additional services booked.
   (3) Acceptance shall take the form of an electronic notification sent by Speekly GmbH to the Creator by email.

5. Intellectual property
   (1) By uploading the created content to Speekly, the Creator offers to grant Speekly GmbH all rights to the content to the extent that the Creator is entitled to them (‘Licence’). The Licence is granted permanently, irrevocably, exclusively (including to the exclusion of the Creator), worldwide and without restriction in terms of content. In particular, Speekly GmbH is permitted the following under the Licence: Speekly GmbH may use, sublicense, transfer or otherwise commercially or non-commercially exploit, reproduce, make publicly available, publicly perform, distribute, edit, modify or create derivative works of the Content and use or exploit them as aforesaid without restriction in whole or in part, for payment or free of charge and in any form, medium or technology (in digital or analogue form on image, data and sound carriers of any kind), regardless of whether these are already known or are yet to be developed. Speekly GmbH accepts this offer by saving the content on Speekly after the Creator has completed the upload. Speekly GmbH is under no obligation to exercise the rights associated with the licence.
   (2) Insofar as a Creator creates content for Speekly GmbH that has not previously been commissioned by a brand and uploads it to Speekly GmbH or otherwise transmits it to Speekly GmbH for the fulfilment of a contract with Speekly GmbH, the provisions on the granting of rights to content pursuant to Section 5 (1) of these Creator GTC shall apply accordingly.
   (3) The Creator hereby waives, to the extent legally permissible, the moral rights to which it is entitled under copyright law, in particular the right to publish a work, the right to be named as the author and the right of access to the work.

6. Use of the content for artificial intelligence
   (1) Speekly GmbH develops its own AI systems, further develops third-party AI systems or uses third-party AI systems (an ‘AI system’ means a machine-based system that is designed to operate with varying degrees of autonomy, that can be adaptive once deployed, and that derives explicit or implicit goals from the input it receives, how results such as predictions, content, recommendations or decisions are produced that can influence physical or virtual environments - all AI systems developed by Speekly GmbH, further developed third-party AI systems or third-party AI systems used by Speekly GmbH (hereinafter ‘Speekly AI’).
   (2) The granting of rights within the meaning of Section 5 of these Creator GTC expressly includes the comprehensive use of the created content for the purposes of training Speekly AI and the generation of content by Speekly AI. For the avoidance of doubt, the granting of rights includes the right of reproduction, the right of distribution and the right of public reproduction of the Creator's Content, in each case for the purpose of training Speekly AI or the generation of content by Speekly AI.

7. Representations and warranties
   (1) The Creator represents and warrants that it has all necessary rights to third-party content, in particular those of co-creators, in order to grant Speekly GmbH the rights in accordance with these Creator GTC. The Creator further represents and warrants that it has obtained all necessary consents from third parties, in particular those of the co-creators, in order to transfer the third-party content to Speekly GmbH in such a way that Speekly can process the third-party content for the purposes listed in these Creator T&Cs.
   (2) The Creator represents and warrants that the content created by it is free of third-party rights and that the contractual use of the content by Speekly GmbH does not constitute an infringement of third-party rights.
   (3) The Creator is obliged to inform Speekly GmbH immediately if it becomes aware of a possible infringement of third-party rights.

8. Means of production
   (1) The means of production provided by the brand to the Creator for the creation of the content (e.g. the brand's product to be advertised via content) (‘means of production’) are the property of Speekly GmbH.
   (2) There is no obligation to surrender the Production Materials if Speekly GmbH has expressly provided them to the Creator on a permanent basis. If the Creator does not make the owed content available on Speekly in a timely manner or if the Creator refuses to make the owed adjustments in accordance with Section 2 (4), the production resources provided must be returned even if they were provided permanently.
   (3) The above paragraphs shall also apply if the handover (transfer of ownership) of the means of production to the Creator was carried out directly by the fire.
   (4) If the Creator breaches its obligation to surrender the means of production, it shall pay Speekly GmbH a contractual penalty in the amount of the general sales price of the means of production, but at least EUR 150.00. The contractual penalty shall apply in addition to the other rights to surrender and to compensation, but shall be offset against such compensation.

9. Customer protection
   (1) The Creator is obliged to protect the customer vis-à-vis Speekly GmbH. The Creator may not accept orders for the creation of marketing/brand content in the area of ‘user-generated content’ from customers (brands) that become known to him in the course of his work for Speekly GmbH, either directly or indirectly via third parties. Customer protection applies to Germany, Austria and Switzerland. It applies during the respective contractual relationship between Speekly GmbH and the Creator - for the execution of a (content) order - and for a period of three (3) months after its termination. The contractual relationship is understood to mean both the specific commissioning of the Creator to create content and an application for an order that has only just begun within the framework of the general licence agreement on Speekly, which enables the Creator to gain an insight into the customer base of Speekly GmbH that is currently actively looking for service providers.
   (2) If it is unclear whether Brands have become known to the Creator in the course of his work for Speekly GmbH, the Creator must prove that he became aware of the Brands outside of his work for Speekly GmbH.
   (3) If Speekly GmbH blocks the Creator from using Speekly without an important reason for the blocking, the customer protection clause shall become ineffective if the Creator declares in writing within one month of the blocking that he does not consider himself bound by the agreement.

10. Amendments to the GTC
    (1) Speekly GmbH reserves the right to amend these GTC at any time with effect for the future, unless the amendment is unreasonable for the Creator. The amendment shall only be made for the following objective reasons:
    (a) if the amendment serves to bring the GTC into conformity with applicable law, in particular if the applicable legal situation changes;
    b) if the amendment serves Speekly GmbH to comply with mandatory court or official decisions;
    c) if completely new services of Speekly GmbH or service elements as well as technical or organisational processes of Speekly GmbH require a description in the GTC and the existing contractual relationship with the Creator is not affected to the detriment of the Creator;
    d) if the change is only advantageous for the Creator.
    (2) In such a case, Speekly GmbH shall send the amended GTC at least four weeks before they come into force to the email address provided by the Creator to Speekly GmbH.
    (3) If the Creator does not object to the new GTC within a period of four weeks after receipt of the email, the amended GTC shall be deemed to have been accepted by the Creator. Speekly GmbH will inform the Creator of the consequences of failing to object in the notification of change.
    (4) Creators can also agree to amended GTC by means of an express declaration of consent.

11. Exemption
    (1) The Creator shall indemnify Speekly GmbH against the reasonable costs of defence against
    a) all justified claims asserted by third parties against Speekly GmbH on the basis of the infringement of their intellectual property rights in relation to the Content due to culpable behaviour on the part of the Creator; and
    b) all justified claims of third parties arising from or in connection with a culpable breach of the representations and warranties contained in these Creator GTC (in particular, but not limited to Section 7) by the Creator (claims of third parties pursuant to this Section 11 a) and b) hereinafter ‘Third Party Claims’).
    free. The indemnification obligation pursuant to this Section 11 shall not apply insofar as the third-party claim is based on a fault of Speekly GmbH.
    (2) The Creator's obligation to indemnify Speekly GmbH shall only apply if a) the third-party claim has been legally established, b) Speekly GmbH has informed the Creator of the third-party claim in writing within a reasonable period of time after the third-party claim has been legally established.

12. Final provisions
    (1) This Agreement shall be governed by the laws of the Federal Republic of Germany, excluding conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention, ‘CISG’).
    (2) Should any provision of this agreement be or become invalid in whole or in part or should this agreement contain a loophole, the legal validity of the remaining provisions shall remain unaffected. In place of the invalid provision, a valid provision shall be deemed to have been agreed which comes as close as possible to the economic intention of the parties; the same shall apply in the event of a loophole.
    (3) The place of fulfilment and exclusive place of jurisdiction for all disputes arising from or in connection with the legal relationship between users and Speekly GmbH is Cologne, provided that the user is a merchant, a legal entity under public law or a special fund under public law or the user has no general place of jurisdiction in the Federal Republic of Germany. Speekly GmbH reserves the right to choose another permissible place of jurisdiction.