Brand Terms & Conditions

Note: Unless otherwise indicated, the following references to persons and pronouns refer to all genders.

Preamble

Speekly GmbH, Stolberger Str. 90 D, 50933 Cologne (hereinafter referred to as ‘Speekly GmbH’) is the operator of the Speekly platform (hereinafter referred to as ‘Speekly’). Speekly can be accessed at the web address www.getspeekly.com (hereinafter referred to as the ‘Website’).

Speekly GmbH enables interested parties (hereinafter ‘Brand’) to commission the creation of video and photo content (hereinafter ‘Content’) by an external subcontracted provider (hereinafter ‘Creator’) in accordance with the following terms and conditions and to acquire unlimited rights to use this Content either for a limited period of time for the licence period selected when the order is placed or - if selected accordingly when the order is placed. The following GTC (the ‘Speekly Brand GTC’) govern the use of Speekly by brands, the legal relationship in relation to content creation and the other legal relationships between Speekly GmbH and the brand.

1. Scope of application

(1) These Speekly Brand GTC govern the legal relationship between Speekly GmbH and the brands. Individual agreements made in individual cases shall take precedence over these Speekly Brand GTC. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation. The Speekly Creator GTC shall apply to Creators.

(2) Brands can only be entrepreneurs. An entrepreneur is a natural or legal person or a partnership with legal capacity which, when concluding a legal transaction, acts in the exercise of its commercial or independent professional activity (cf. § 14 BGB). The brands' own terms and conditions shall not apply, even if Speekly GmbH has not expressly objected to them.

2. Subject matter of the service

(1) Speekly GmbH shall create the ordered content in accordance with the specifications as ordered and briefed by the brand and shall grant the brand the spatially unrestricted right to use it at the time of acceptance in accordance with Section 6, limited in time to the licence period selected when the order is placed or - if selected accordingly when the order is placed - unlimited, against payment of a fee in accordance with Section 5. This content shall be used in particular for the purposes of online marketing of the brands or their products in the context of social media and for other advertising and product marketing activities.

(2) Brands can access Speekly by opening a user account on the website and providing the necessary information (hereinafter ‘Account’) in accordance with Section 4. When opening an Account, the brands must accept these Speekly Brand Terms and Conditions. After opening the Account, the brands can utilise the services of Speekly.

(3) For the creation of content, the brand places an order with Speekly GmbH via Speekly. The brand also selects on Speekly whether the desired content is to be licensed for a limited or unlimited period of time.
Speekly GmbH will subcontract the creation of the content to a creator. Speekly will use the external service provider selected by the brand via Speekly to create the content. The content will be made available to the brand for download electronically via Speekly. In detail:

a. The brand creates a description of the desired content with specification
(hereinafter ‘briefing’) and transmits this via the intended functions on
Speekly (hereinafter ‘order’, see section 3).

b. The creators connected via Speekly can view the order and apply to create the
content. The creators create digital applications for this purpose.

c. The brand can view the applications and then make a selection as to which
Creator should be subcontracted to create the content by Speekly GmbH.
Creators can withdraw their application at any time without giving reasons
until the brand has made its selection.

d. Speekly GmbH then places an order with the selected Creator to create the
content in accordance with the briefing on its own responsibility and in its
own name. No contract is concluded between the brand and the creator.

e. After 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.
Uploading the content does not yet constitute acceptance by the brand (see 6.
below).

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 confirmation by Speekly GmbH in text form in order 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 legal information obligations of the brands (e.g. mandatory information to consumers).

(7) Speekly GmbH will send the brands a confirmation of the order 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.

4. Opening of a user account

(1) Before using Speekly, each brand must create an account and provide the required information. The brand is the owner of the account. The account can be used by several members (e.g. employees). The information about the brand and the individual members must be complete and truthful.

(2) When opening the account, the user must have unlimited legal capacity. The account may only be opened in the name and for the account of the brand itself. 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). This also applies to members within an account. The access data must be kept secret by the user. The user must take reasonable precautions to prevent any access by unauthorised persons.

(5) Once the account has been successfully opened, Speekly's services are available to the brand. If these services are provided by Speekly GmbH for a fee, the brand will be requested to place a binding order with Speekly GmbH in accordance with section 3.

(6) Only the owner of the account and the members of the account are authorised to use the services. Passing on personal login data to third parties is not permitted. If brands suspect or know that their account is being used by third parties without authorisation, they must report this immediately to Speekly GmbH at the email address info@speekly.de.

(7) The brand shall also ensure that the necessary minimum hardware and software precautions are taken for the use of Speekly. The creation and maintenance of the brands' connection to the Internet is not the subject of this contract, but is the responsibility of the brands.

(8) Speekly GmbH shall always endeavour to ensure that the website is available without interruptions and that transmissions are error-free. However, this cannot be guaranteed at all times. Access to the website may also be interrupted or restricted from time to time to allow for repairs, maintenance or the introduction of new facilities. Speekly GmbH shall endeavour to limit the duration and frequency of such temporary interruptions.

5. Remuneration; Payment; Cancellation

(1) Upon placement of the order, the 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 the brand books an additional service of the Creator within the order placed for a fee or agrees to such an offer from the Creator or extends the licence term.

(2) Payment is made using Stripe, Inc. (https://stripe.com/de) as the payment service provider. The payment data used by the brand may also be stored in the brand's account on Speekly and used for future payments.

(3) The Brand can cancel an order placed by contacting Speekly Support (mailto: info@getspeekly.com). If one or more applications for the order have already been made available on Speekly at this time, the brand will be refunded the payment minus a cancellation fee of EUR 15.00 (plus VAT) as a credit on the brand's account. Once a Creator has been selected, such a cancellation by the brand is no longer possible.

(4) The 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. The contract shall be automatically terminated upon expiry of the deadline. The brand shall be reimbursed the payment made, less a cancellation fee, as a credit to the brand's account, 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.

(5) The brand can also top up credit via the website https://getspeekly.com/credit-packs, which can be used for payment during the payment process when placing the order. The credit is available for a period of 2 years from the date of purchase. The current credit balance is displayed as ‘remaining credit’ after completion of the payment process.

(6) The brand can also take out a subscription. As part of the respective subscription, the brand has a maximum number of videos at its disposal that can be booked on a monthly basis. The subscription is concluded via https://getspeekly.com/new-pricing by paying the respective remuneration via the payment service provider Stripe, Inc. For this purpose, the brand creates an account on the payment service provider's website. The subscription can be cancelled at any time via the payment service provider's account. If the monthly quota booked is not used up, this cannot be carried over to the following month.

(7) Speekly GmbH shall 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.

(8) If the brand defaults on payments, Speekly GmbH shall have the right to refuse to fulfil services due to the 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.

6. Acceptance; Transfer of Rights

(1) The commissioned content will be made available to the brand for inspection via Speekly after creation. If a Creator submits or uploads a final content delivery on Speekly, the brand has 10 days from the upload time to accept the content delivery or request a revision. If no request for revision is made, the delivered content shall be deemed to have been accepted.

(2) 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’ button in the ‘Deliveries’ tab.

(3) Upon acceptance of the content in accordance with the above paragraph, the brand shall be granted the exclusive right of use, unlimited in terms of territory and content, limited in time to the licence period selected when the order is placed from acceptance or - if selected accordingly when the order is placed - unlimited, to the content for all known and future known types of use. This includes in particular all personal rights, neighbouring rights and copyrights. This also includes the right to store the content on any medium, to reproduce, exhibit, publish and distribute it in physical or non-physical form, as well as the right to non-public and public reproduction and to make it publicly accessible, including by means of image, sound or other information carriers, the right to use, provide and utilise it in data networks and online services, including the right to make the results available to users of the aforementioned networks and services for retrieval and download. Furthermore, unless a corresponding restriction has been agreed, this includes the right of editorial and advertising utilisation (in each case and in particular in print/ePaper publications, including customer magazines/brochures, in electronic editions/applications, in Internet and mobile offerings as well as within social media channels such as Facebook, Instagram and YouTube), also for the purposes of the brand's own advertising (e.g. in presentations, presentation of case studies on websites, etc.), in the context of advertisements in any print and online media, for TV and cinema advertising, for advertising on the Internet (banners, social media, etc.), for PR purposes and for the depiction of products and services in any print and online media. ), in the context of advertisements in any print and online media, for TV and cinema advertising, for advertising on the Internet (banners, social media, etc.), for PR purposes and for the depiction of products and their packaging, including use at the point of sale (e.g. flyers and displays). including use at the point of sale (e.g. flyers and displays), for shop window advertising, as part of on-the-ground decoration, for advertising on posters/lit pillars and for special printed advertising material (e.g. brochures) as well as use as part of accompanying campaigns.

(4) The content may be edited or redesigned (e.g. montage, combination with images, texts or graphics, photo-technical alienation, colouring) while respecting all personal rights.

(5) The brand shall have the right to grant third parties rights of use to the content in accordance with the above paragraphs (right to sub-licence).

(6) The granting of rights under paragraphs 3 to 5 above expressly does not include the right to use the Content in whole or in part in connection with artificial intelligence systems (‘AI systems’), in particular to feed their contributions into an AI system as training, validation and test data sets, to enter them into an AI system as a prompt (input) and to utilise the result generated by the AI system (output) as desired within the scope of the aforementioned types of use. This right is reserved to Speekly and is not transferred.

(7) The brand grants Speekly a non-exclusive right, unlimited in terms of time, place and content, to use, exploit and edit the content in whole or in part for the purpose of self-promotion as well as PR and marketing purposes. This includes in particular the types of use within the meaning of paragraphs 3 to 5 above.

(8) If the brand has initially acquired a time-limited right of use, use is prohibited after expiry of the licence period. The brand shall be responsible for the removal of the content and shall take appropriate precautions to ensure that it is not reused. In this respect, express reference is made to Section 15 of these GTC. If unauthorised further use of the content takes place despite the absence of a licence or without a corresponding extension, the brand shall be obliged to pay a contractual penalty of EUR 2,000. Speekly GmbH also reserves the right to block the brand account; the right to assert further claims for injunctive relief and damages is also reserved.

(9) If the brand has initially acquired a time-limited right of use, it is possible, against payment of a further licence fee, to extend the right of use for a fixed period (in months) or to acquire it for an unlimited period. Paragraphs 3 to 8 shall apply accordingly.

7. 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 endeavor to return the means of production to the brand; however, not to the extent that the means of production are consumed as planned anyway during the creation of the content in accordance with the contract and thus perish as an item. However, there shall be no claim to the return of production resources.

8. General duties of conduct

The brand is 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 authorized 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 behavior

d. comply with the other obligations set out in these GTC and
to use assigned access data only by the respective authorized person and not
to pass them on to unauthorized third parties.

9. Termination of the contract

Speekly GmbH reserves the right to terminate the contract in text form without notice for the following reasons if a reasonable period of time has been set to remedy the situation, unless the remedy is impossible in the specific case. An important reason is in particular

a. Failure to cooperate in due time in accordance with Section 5 (4)

b. Intentional or grossly negligent breach of the general duties of conduct
pursuant to Section 8 by the brand

c. Breach of the confidentiality obligation pursuant to clause 13

d. material breach of statutory provisions

e. Opening of insolvency proceedings against the assets of the brand

10. Warranty

(1) Before placing the order in accordance with Section 3 (1), the brand has checked that the specifications of the content in accordance with the briefing meet its wishes and requirements.

(2) For the purpose of production in accordance with the briefing and order, the brand shall grant Speekly GmbH all rights of use to any content provided by it for the execution of the order. This includes in particular the integration of the content (photo, video, audio, text) supplied by the brand or third parties on its behalf, which may be subject to license, into the production and post-production, i.e. comprehensive processing of all said content to create the finished production and (artistic) processing of the above-mentioned content and video/audio raw material by the Creator.

(3) Speekly GmbH guarantees that the specifications of the content are fulfilled in accordance with the briefing.

(4) Insofar as the specifications of the content pursuant to para. 2 are met, Speekly GmbH shall be free to modify or further process the delivered content according to the wishes of the brand. Subject to Section 6 (1), Speekly GmbH will have one (1) reasonable editing request from the brand implemented via the Creator without charging additional remuneration. Any further processing request will only be implemented if further remuneration is agreed. Speekly GmbH will consider at its own discretion any request by the brand to replace the selected Creator (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.

11. 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 was used by the brand outside the contractual provisions.

(2) the brand shall indemnify Speekly GmbH against all claims asserted by third parties against Speekly GmbH due to an infringement of their rights by the brand. In this respect, the brand shall also bear the costs of any necessary legal defense, including legal fees and court costs in the statutory amount. The brand shall not be indemnified if it is not responsible for the infringement. In particular, the brand shall support Speekly GmbH in its defense against the aforementioned claims by submitting declarations, such as affidavits, and by providing other information, and shall work to ensure that third-party claims are asserted directly against the brand itself. Further claims against the brand, in particular claims for damages, are expressly reserved.

(3) The brand shall be obliged to notify Speekly GmbH immediately if it becomes aware of any possible infringement of third-party rights.

12. Limitation of liability and responsibility

(1) Speekly GmbH's liability within the scope of the contractual relationship is limited 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 simple 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 whose fulfillment makes the
performance of the contract possible in the first place and on whose
fulfillment the contractual partner may therefore regularly rely. However
this liability shall be 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 favor of employees, representatives, agents and vicarious agents of Speekly GmbH.

(3) Any liability for guarantees given and for claims based on other mandatory statutory liability, such as product liability law or data protection violations, shall remain unaffected.

(4) Insofar as the brand has a claim against third parties, any liability claim of the brand against Speekly GmbH shall be subordinated to the extent that the brand must first assert the damage against the third party. Speekly GmbH shall assign its own claims against third parties, which are necessary for the enforcement of the brand's claims against them, to the brand.

(5) Speekly GmbH shall be entitled to raise the objection of contributory negligence. In particular, the brand shall be obliged to back up data and defend against malware in accordance with the current state of the art. However, this shall only apply to data backup if and insofar as this is not part of the contractual services in accordance with the contractual agreements.

(6) Claims for defects shall become statute-barred twelve months after the start of the statutory period, unless the defect was fraudulently concealed.

13. 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 which are designated as such or which by their nature are to be regarded as confidential. Speekly GmbH undertakes to grant access to confidential information of the brand 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 must 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 Agreement. 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 used.

14. Monitoring

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

15. Protection of the rights of Speekly GmbH

The brands are prohibited from

a. use Speekly's copyrights, trademarks or proprietary marks outside the
contractual authorization, in particular after the expiry of the license period
(unless a perpetual license has been acquired),

b. remove, alter or obscure them or

c. modify products after acceptance, 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 of the
Platform for the same or a future order within the next 3 months. If, contrary to
the above provision, contact is made outside of Speekly, the brand is obliged to
pay a contractual penalty amounting to three times the remuneration for the
content for which the brand has placed the order, even if the content is not
created (hypothetical remuneration). Speekly GmbH also reserves the right to
block the brand account; the right to assert further claims for injunctive relief
and damages is also reserved. The same applies accordingly to Creators contacting
the 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)).

16. Amendments to the GTC

(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 brands. Amendments shall only be made for the following objective reasons:

a. if the amendment serves to bring the GTC into conformity with the 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 organizational processes of Speekly GmbH require a description in
the GTC and the existing contractual relationship with the brand is not impaired
to its detriment as a result;

d. if the change is merely advantageous for the brands

(2) In such a case, Speekly GmbH shall send the amended GTC at least four weeks before they come into force to the e-mail address provided by the brand to Speekly GmbH.

(3) If the brand does not object to the new GTC within a period of four weeks after receipt of the e-mail, the amended GTC shall be deemed to have been accepted by the brand. Speekly GmbH will inform the brand of the consequences of failing to object in the notification of change.

(4) The brands may also agree to the amended GTC by means of an express declaration of consent.

17. Data protection

Insofar as Speekly processes personal data in the course of the provision of services for which Speekly is not the controller, or access to such personal data cannot be excluded, the contracting parties shall conclude an agreement on commissioned processing in advance that meets the relevant legal requirements. If the brand transfers personal data of third parties to Speekly, Speekly GmbH shall provide the contractual services exclusively on behalf of the brand in compliance with the legal requirements of Art. 28 GDPR as commissioned processing. The brand shall remain responsible for compliance with the provisions of the Federal Data Protection Act and other relevant data protection regulations as the data processor. 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.

18. 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.

19. Use of AI systems

(1) Speekly GmbH is entitled 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 after its implementation 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 to, but is 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 brand for the use of AI systems in accordance with Section 12.

(4) The provisions and obligations contained in these GTC also apply to the creation of content by AI. Speekly GmbH will inform the brand if the content has been created through the use of AI.

20. Final provisions

(1) Speekly GmbH may send information and declarations relating to the contractual relationship to the e-mail address provided by the brand to Speekly. The brand 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 brand is only possible with the prior written consent of Speekly GmbH, subject to Section 354a of the German Commercial Code (HGB).

(4) Offsetting by the brand is excluded, subject to undisputed or legally established claims.

(5) Should a 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 intent of the parties; the same shall apply in the event of a loophole.

(6) The place of performance and jurisdiction shall be Cologne if the brand is a merchant, a legal entity under public law or a special fund under public law, or if the brand has no general place of jurisdiction in the Federal Republic of Germany or has relocated it abroad after these Terms of Use come into effect. In all other respects, the applicable statutory provisions shall apply to local and international jurisdiction. Speekly GmbH reserves the right to choose another permissible place of jurisdiction.

(7) The contractual language is German. Only the German version of these General Terms and Conditions shall apply. Translations shall be provided for the brands in foreign markets, but these shall only serve to improve comprehensibility.