Brand Terms & Conditions

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

These Terms and Conditions 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.

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 the right to use it for an unlimited period of time. This 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.
To create content, a brand places an order with Speekly GmbH via the Speekly platform. Speekly GmbH will subcontract the creation of the content to an external provider (hereinafter ‘Creator’).

After commissioning 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 creates a description of the desired content with specifications (hereinafter ‘briefing’) and transmits this via the intended functions on Speekly (hereinafter ‘order’).
The creators connected via Speekly can view the order and apply to create the content. The Creators create digital applications for this purpose. The Creators can withdraw their application at any time without giving reasons until they are selected by the Brand.
The brand can view the applications and then select a Creator.
Speekly GmbH then places 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 make it available 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 ‘Speekly GTC’) govern the use of the platform by Brands and Creators as well as the other legal relationships between Speekly GmbH and the Brand.

1. Scope of application
   (1) These General Terms and Conditions (GTC) of Speekly GmbH govern the legal relationship between Speekly GmbH and the users. Individual agreements made with the user in individual cases shall in any case take precedence over these GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation. The Creator GTC shall additionally and primarily apply to Creators.
   (2) If a user uses their own terms and conditions and these deviate from these GTC, these GTC shall take precedence, even if Speekly has not expressly objected to the user's terms and conditions.
   (3) With regard to the various contractual documents (see para. 1), the following order of validity shall apply:
   a. Any existing individual agreements
   b. Towards Creators, the Creator GTC
   c. these GTC

2. Subject matter of the service
   Speekly GmbH shall create the ordered content in accordance with the specifications as ordered and briefed by the brand and, at the time of acceptance, shall grant the brand the right to use the content for an unlimited period of time and territory in return for payment of a fee in accordance with clause 5. Speekly shall use the external service provider selected by the brand via Speekly as the creator for the creation of the content. The content will be made available to the brand for download electronically via Speekly.t.

3. Conclusion of contract
   (1) By using the order function provided for this purpose on Speekly (pressing the ‘Pay’ button), the brand places a binding order with Speekly GmbH for the creation of content corresponding to the order and recognises the validity of these GTC for the order. The order contains information on the following points:
   a. Product to be advertised and product description
   b. Length of the content
   c. Aspect ratios
   d. Desired form of editing
   e. Additional technical and content requirements in accordance with the order, without restricting the creators' freedom to issue instructions (briefing)
   f. Sequence of the content, call to action and ‘don'ts’ (briefing)
   (2) The binding conclusion of the contract is effected by Speekly GmbH sending a confirmation by e-mail to the brand, whereby an acceptance period of two weeks applies.
   (3) Speekly GmbH is not obliged to accept the brand's offer.
   (4) The brand can book additional services of the Creator within the order placed; a corresponding binding contract amendment and price increase will be communicated and documented in accordance with the above procedure.
   (5) The assumption of guarantees for certain properties of the content requires written confirmation by Speekly GmbH to be effective.
   (6) The services of Speekly GmbH do not include any legal examination or legal advice (e.g. with regard to unfair competition practices) and do not serve to fulfil the user's statutory duties to provide information (e.g. mandatory information to consumers).
   (7) Speekly GmbH sends users the text of the contract, i.e. a confirmation of registration or a confirmation of the use of chargeable services together with the GTC and the privacy policy, to the e-mail address they have provided. Information on the contractual relationship can also be found in the respective user account. The text of the contract is stored in compliance with data protection regulations. The contract language is German. Translations are provided for customers in foreign markets. The place of fulfilment and place of jurisdiction for the translations shall be Cologne in accordance with Section 19 (6) and the German law on which the contract is based in accordance with Section 19 (2).

4. Creation of a user account
   (1) Before using Speekly, every user must create an account and provide the required information. The information must be complete and truthful.
   (2) When opening an account, the user must have unlimited legal capacity. The account may only be opened in the name and for the account of the user. Opening an account for third parties is prohibited.
   (3) If an account is opened for a legal entity or company, the acting person must be authorised to represent it. In this case, the legal entity or company represented is the ‘user’ within the meaning of these GTC.
   (4) When the account is opened, the user creates access data (access name and password). The access data must be kept secret by the user.
   (5) Once the account has been successfully opened, Speekly's services are available to the user. If these services are provided by Speekly GmbH for a fee, the user will be requested to place a binding order with Speekly GmbH in accordance with section 3 (1).
   (6) Only the account holder is authorised to use the services. The disclosure of personal login data to third parties is not permitted. If users suspect or know that their account is being used by third parties without authorisation, users must report this immediately to Speekly GmbH at the email address info@speekly.de.

5. Payment; Cancellation; Approval
   (1) Upon placement of an order, Brand shall owe payment of the full (basic) remuneration. The amount of the remuneration plus statutory VAT will be displayed on Speekly before the order is placed. It may increase during the current order if a brand books an additional service of the Creator within the order or agrees to such an offer from the Creator. Payment is made using Stripe, Inc. (https://stripe.com/de) as the payment service provider.
   (2) The Brand can cancel the order by contacting Speekly Support (mailto: info@speekly.de). If one or more applications for the order have already been made available on Speekly at this time, the brand will be refunded the remuneration minus a cancellation fee of EUR 15.00 (plus VAT). Once a Creator has been selected, such a cancellation by the Brand is no longer possible.
   (3) Brand is obliged to select a suitable application within a maximum of 28 days and also to provide the necessary means of production (see Section 6 below) within this period. Upon expiry of the deadline, the contract shall be automatically terminated by cancellation. The Brand shall be reimbursed the payment made less a cancellation fee, which corresponds to EUR 15.00 if an application is not selected and 40% of the order value (plus VAT in each case) if the application is selected but the means of production are not provided.
   (4) If a Creator submits or uploads a final content delivery on Speekly, the Brand has 10 days from the upload date to accept the content delivery or request a revision. If this is not done within the said period, the order will be automatically closed after the 10-day period has expired and the commissioned Creator will receive its remuneration.
   (5) Speekly GmbH will issue an invoice in accordance with the provisions of § 14 UStG. The invoices can be made available to the brand electronically. Speekly GmbH may send payment reminders to the brand electronically.
   (6) If Brand defaults on payments, Speekly GmbH shall have the right to refuse to fulfil services due to Brand and to block access to Speekly until the default has been remedied. Speekly GmbH's other statutory and contractual rights due to Brand's default in payment shall remain unaffected.
   (7) The commissioned content will be made available for Brand to view via Speekly after it has been created. The possibility of downloading and saving as a photo or video file by the brand is only opened when the brand declares acceptance of the content by clicking on the ‘Accept and download content’ button. Only upon acceptance is the licence of use granted in favour of Brand in accordance with Section 2.

6. Means of production
   (1) If the brand provides means of production (e.g. samples of the products to be advertised) for the production of content, these shall become the property of Speekly GmbH. This also applies if the brand provides the commissioned creator with direct ownership of the means of production. In this respect, the brand is not entitled to any claim for surrender or compensation from Speekly GmbH.
   (2) At the written request of the Brand, Speekly GmbH shall endeavour to return the means of production to the Brand; however, not insofar as the means of production are consumed as planned anyway during the contractual creation of the content and are thus lost as an item. However, there is no entitlement to the return of means of production.

7. General dueties of behaviour
   (1) All users are obliged
   a) to comply with existing legal requirements, including the Federal Data Protection Act (BDSG) and the Data Protection Act of the European Union (in particular the General Data Protection Regulation, GDPR) as well as official orders,
   b) when using Speekly, to only advertise products and services that they are legally authorised to offer or distribute, to respect the personal rights of third parties, not to make any statements or comments or distribute data and content that offend common decency (in particular glorification of violence) or discriminate against persons on the grounds of race, ethnic origin, gender, religion or belief, disability, age or sexual identity,
   c) to refrain from manipulative behaviour,
   d) to comply with the other obligations set out in these GTC and
   e) to use the access data assigned only by the respective authorised person and not to pass these on to unauthorised third parties.

8. Cancellation of the contract
   Speekly GmbH reserves the right to withdraw from the contract for the following reasons:
   a. Failure to co-operate in due time according to clause 5 para. 3
   b. Intentional or grossly negligent breach of the general behavioural obligations according to section 7 by the user
   c. Breach of the confidentiality obligation pursuant to clause 12
   d. in accordance with the statutory provisions

9. Warranty
   (1) Before placing the order in accordance with Section 3 (1), the brand has checked that the specifications of the content correspond to its wishes and requirements in accordance with the briefing.
   (2) Speekly GmbH guarantees that the specifications of the content are fulfilled in accordance with the briefing.
   (3) Insofar as the specifications of the content according to paragraph 2 are met, Speekly GmbH is free to change or further process the delivered content according to the wishes of the brand. Speekly GmbH will generally implement one (1) reasonable editing request of the brand without charging additional remuneration. Any further editing request will only be implemented if further remuneration is agreed. Speekly GmbH will consider a request by the brand to replace the selected creator at its own discretion (unless the content is defective); Speekly GmbH will regularly consider such a replacement if design elements have been selected in the content that obviously do not represent the brand or the product advertised in the content in a way that is reasonable for the brand.

10. Infringement of third party rights
    (1) Speekly GmbH shall not be liable for any infringement of third-party rights unless Speekly GmbH is responsible for such infringement or the contractual product has been used by the user outside the contractual provisions.
    (2) The user shall indemnify Speekly GmbH against all claims asserted by third parties against Speekly GmbH due to an infringement of their rights by the user. In this respect, the user shall also bear the costs of any necessary legal defence, including legal fees and court costs at the statutory rate. The user shall not be indemnified if the user is not responsible for the infringement. In particular, the user shall support Speekly GmbH in the defence against the aforementioned claims by submitting declarations, such as affidavits, and by providing other information, and shall work towards ensuring that third-party claims are asserted directly against the user himself. Further claims against the user, in particular claims for damages, are expressly reserved.
    (3) The user is obliged to notify Speekly GmbH immediately if he/she becomes aware of a possible infringement of third-party rights by Speekly GmbH.

11. Liability and responsibility
    (1) Speekly GmbH shall be liable within the scope of the contractual relationship as follows:
    (a) Speekly GmbH shall be liable without limitation for intent and gross negligence as well as for damages resulting from injury to life, body or health.
    (b) In cases of slight negligence, Speekly GmbH shall be liable for breach of a material contractual obligation. A material contractual obligation within the meaning of this provision is an obligation the fulfilment of which makes the performance of the contract possible in the first place and on the fulfilment of which the contractual partner may therefore regularly rely. However, this liability is limited to the damage foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected.
    (2) The above limitations of liability shall apply accordingly in favour of our employees, representatives, agents and vicarious agents.
    (3) Any liability for guarantees given and for claims based on the Product Liability Act or in the event of data protection violations shall remain unaffected.
    (4) If the user has a claim against a third party, the user's liability claim against Speekly GmbH shall be subordinated to the extent that the user must first assert the claim against the third party. Speekly GmbH will assign to the user its own claims against third parties that are necessary for the enforcement of the user's claims against them.
    (5) Speekly GmbH reserves the right to raise the defence of contributory negligence. In particular, the user has a duty to back up data and to defend against malware in accordance with the current state of the art. However, this only applies to data backups if and insofar as these are not part of the contractual services in accordance with the contractual agreements.
    (6) Claims for defects shall become time-barred twelve months after the start of the statutory period, unless the defect was fraudulently concealed.

12. Confidentiality
    (1) The contracting parties undertake to treat as confidential all confidential information of which they become aware during the performance of this contract and to use it only for contractually agreed purposes.
    (2) Confidential information within the meaning of this provision is information, documents, details and data that are designated as such or are to be regarded as confidential by their nature. Speekly GmbH undertakes to grant access to confidential information of the user only to those employees who are entrusted with the provision of services under this contract. The contracting parties shall not file any applications for industrial property rights for confidential information of the other contracting party.
    (3) If confidential information in the aforementioned sense is requested by a public body, this contracting party shall be informed immediately and before the information is released to the public body, provided that this does not conflict with any mandatory statutory provisions or official orders.
    (4) The rights and obligations under this section on confidentiality shall not be affected by the termination of this contract. Both contracting parties are obliged to return confidential information to the other contracting party upon termination of this contract or to destroy it at their discretion, provided that it has not been properly utilised.

13. Monitoring
    Speekly GmbH is authorised to monitor the use of products to ensure compliance with legal requirements and orders from authorities or courts. Speekly GmbH is further authorised to take any measures necessary to comply with legal requirements and orders from authorities or courts.

14. Protection of the rights of Speekly GmbH
    Users are prohibited from
    a) to use Speekly's copyrights, brands or trademarks outside the scope of the contractual authorisation,
    b) remove, alter or obscure them, or
    c) to modify products, including products or components of products supplied by third parties.
    d) If contact is established between the Brand and a Creator via Speekly, the Brand is prohibited from contacting the respective Creator outside the platform for the same or a future order within the next 3 months. This will lead to the blocking of the user account; the right to assert claims for injunctive relief and damages remains reserved. The same applies accordingly to Creators contacting Brands. Additional services as part of an order or further collaborations can be offered, requested and agreed via the Speekly Chat (in accordance with section 3 (4)).

15. Amendments to the GTCs
    (1) Speekly GmbH reserves the right to amend the GTC at any time with effect for the future, unless the amendment is unreasonable for the user. Amendments will 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 user is not affected to the detriment of the user;
    d) if the change is merely advantageous for the user.
    (2) In such a case, Speekly GmbH will send the amended GTC to the email address provided by the user to Speekly GmbH at least four weeks before they come into effect.
    (3) If the user 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 user. Speekly GmbH will inform the user of the consequences of failing to object when notifying the user of the changes.
    (4) Users may also agree to amended GTC by means of an express declaration of consent.

16. Data protection, naming of references
    (1) Insofar as Speekly processes personal data in the course of providing the service for which Speekly is not the controller, or access to such personal data cannot be ruled out, the contracting parties shall conclude an agreement on order processing in advance that fulfils the relevant statutory requirements. If the user transfers personal data of third parties to Speekly, Speekly GmbH shall provide the contractual services exclusively on behalf of the user in compliance with the legal requirements of Art. 28 GDPR as order processing. The user remains responsible for compliance with the provisions of the Federal Data Protection Act and other relevant data protection regulations as the data processing centre. A transfer of functions to Speekly GmbH is not agreed. Speekly GmbH reserves the right to block certain functionalities without an existing order processing contract.

17. Customer references
    (1) Unless otherwise agreed or unless the brand expressly objects, the brand agrees to serve as a reference for Speekly GmbH upon conclusion of the contract.
    The references may be presented in both digital and non-digital form. Speekly GmbH may use the company or brand name as well as the logo and publicly known information such as the industry in the presentation of the reference.
    (2) The brand can have the reference removed at any time. Speekly GmbH will remove the reference within 30 days.

18. Use of AI systems
    (1) Speekly GmbH is authorised to use its own AI systems and third-party AI systems, in particular generative AI systems, in the provision of all services under these Speekly GTC. An ‘AI system’ means a machine-based system that is designed for varying degrees of autonomous operation, that can be adaptable once implemented and that derives from the inputs received for explicit or implicit goals how to produce results such as predictions, content, recommendations or decisions that can influence physical or virtual environments.
    (2) This applies in particular, but not limited to, the use of so-called Large Language Models (‘LLMs’) such as the GPT series and image generation models such as Stable Diffusion, DALL-E and Midjourney.
    (3) Speekly GmbH shall be liable to the user for the use of AI systems in accordance with Section 11.

19. Final provisions
    (1) Speekly GmbH may send information and declarations relating to the contractual relationship with the user to the e-mail address provided by the user to Speekly. The user will check this e-mail address regularly.
    (2) This contract is subject to German law.
    (3) The assignment of claims against Speekly GmbH by the user is only possible with the prior written consent of Speekly, subject to Section 354a of the German Commercial Code (HGB).
    (4) Offsetting by the user is excluded, subject to undisputed or legally established claims.
    (5) 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 closest to the economic intention of the parties; the same shall apply in the event of a loophole.
    (6) The place of fulfilment and jurisdiction is Cologne if the user is a merchant, a legal entity under public law or a special fund under public law or if 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.