Version: April 29, 2024

I) General Part

1. Scope

(1) These General Terms and Conditions (“GTC”) apply between users and Refluenced AG (“Refluenced”). Users are advertising companies; hereinafter referred to as “Brand” or advertising carriers; hereinafter referred to as “Influencer.”

(2) These GTC consist of the General Part, the Special Conditions for Influencers, and the Special Conditions for Brands. Along with the individual contract documents, these GTC constitute the final agreement (hereinafter referred to as “Agreement”) between the users and Refluenced.

(3) General Terms and Conditions of the Brand and/or the Influencer are hereby explicitly excluded. They only become part of the contract if Refluenced has agreed to their validity in the offer or in the contract.

(4) Refluenced products include website, mobile app, web app, or the platform. By using a product from Refluenced, the user agrees to these GTC. These GTC apply to the use of all products from Refluenced.

(5) The validity of the Agreement is agreed in the following order: 1. individual contract and individual written agreements such as amendments, contractual changes, 2. offer, 3. these GTC, 4. privacy policy (https://refluenced.ch/legal/privacy-policy). All agreements must be mutually signed and documented in writing to be valid.

(6) Refluenced is entitled to change the GTC at any time. In this case, Refluenced will inform the Brand of the changes to the GTC by email, and the Brand has a two-week right of objection from the time Refluenced sends the notification. If no objection is made within this period, the GTC shall be deemed accepted. Influencers will be informed of the change upon the next app launch and can give their consent there.

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

(8) The subject of the Agreement is the activities agreed on a case-by-case basis that are to be carried out by Refluenced and not the guarantee of the occurrence of certain economic or other results. For this reason, Refluenced can also make no statements in the form of expectations, forecasts, or recommendations in the sense of a guarantee regarding the occurrence of corresponding circumstances, regardless of the transfer of certain work results.

2. Description of Services

(1) Refluenced offers Brands the publication of cooperation opportunities (“campaigns”) for the Brand's products and services. Influencers can view these campaigns online and apply to participate if interested. The goal is for Influencers to apply for the campaigns and use their reach to promote the Brand on Instagram or TikTok.

(2) The Brand creates a campaign on Refluenced's website. The Brand can decide whether to conduct a time-limited or an ongoing campaign.

1. Time-limited campaign: The campaigns have a fixed application period.

2. Ongoing campaign: The campaigns have no fixed application period. The Brand has the opportunity to continuously accept new Influencers for the promotion of their offers until the campaign ends.

3. To protect Influencers, Refluenced reserves the right to reset campaigns to draft status, pause campaigns, and terminate them. The Brand will be informed of this by Refluenced afterward.

4. A termination during the trial phase is effective immediately. Any open campaigns will be deleted.

(3) The Brand is obliged to provide the Influencer with all necessary information for fulfilling the campaign, any rules, its positioning, etc. in advance and to describe these as accurately as possible. The goal is to avoid misunderstandings and potential disputes regarding the implementation of the campaign objectives from the outset. To this end, the Brand establishes the cooperation conditions during the creation of the campaign:

– Brand information (optional website and social media links)

– Cooperation content and expectations

– Compensation

– Cooperation rules

– Markings and links

– Hashtags

– Other cooperation conditions if desired

(4) Parts of the conditions of a campaign can be adjusted and/or modified at any time on the Refluenced platform. Such changes are relevant to the Influencer until the campaign starts and must be observed in implementation.

(5) If there are any uncertainties regarding the campaign, these must be addressed before applying and/or participating at Refluenced.

(6) The cooperation conditions on the platform define what consideration the Influencer receives in exchange for fulfilling the owed performance of a campaign from the Brand. This may include the following considerations:

1. Products and services:

The Influencer receives the products listed in the cooperation conditions and may keep them upon fulfilling the campaign. If the Brand manually sends the products, it will receive the delivery addresses from participating Influencers. The Brand will inform the Influencer about the shipment of the product. If the Influencer has not received a product during the preparation phase, they are obliged to inform the Brand and find a solution.

In the case of services, the Influencer may utilize the services described in the cooperation conditions to the extent described.

2. Voucher Code:

If the consideration is the receipt of a voucher code, it must be redeemed within 7 days, as the redemption of the voucher code may be necessary to commence the campaign implementation.

Otherwise, Refluenced reserves the right to remove the Influencer from the campaign.

3. Financial compensation:

Provided this is provided for in the cooperation conditions and approved by Refluenced, the Influencer may receive financial compensation in addition to the products and services to be promoted, which can be paid out by the Brand via Refluenced.

(7) The publication of the campaign by the Brand is considered a binding contract offer to the Influencers.

1. Refluenced checks after publishing the campaign whether the desired campaign is feasible. In particular, Refluenced reserves the right to check for offensive, racist, otherwise defamatory, or criminal content. In such a case, a notification will be made that the commissioned campaign cannot be produced. In such a case, no acceptance of the campaign will occur.

2. The Brand may stop the inclusion of new participants in a campaign at any time.

(8) Registered and verified Influencers can apply for cooperation. Once an Influencer participates in a campaign, the respective cooperation with the Influencer can only be canceled in exceptional cases. The Brand is obliged to provide the Influencer with their consideration. If the Brand does not provide the rewards to the Influencers within the preparation phase, a timely fulfillment on the part of the counterparty (Influencer) can no longer be guaranteed. In the event of non-shipment, a fee equal to the product's value will be charged by Refluenced.

(9) If the Brand awards a contract to an Influencer who has applied for cooperation, that Influencer is obligated to implement the campaign content and must adhere to all cooperation conditions. Upon successful participation, an Influencer will promote the Brand on social networks or, in the case of a User Generated Content (hereinafter "UGC") campaign, must send the Brand's content directly.

(10) The following is considered the performance of the Influencer: the publication of a post or several posts in compliance with the cooperation conditions on social media that portray the Brand in a positive or neutral light. The publications usually consist of image and/or video recordings and the accompanying text (together content or post). The publications must be online for a specific period and/or a specific length (e.g., Instagram Stories).

(11) Unless otherwise specified in the cooperation conditions, the Influencer must in any case comply with the following conditions:

• A post/reel/TikTok must be online and publicly viewable for at least three (3) months. Postings may not be archived or deleted within these 3 months.

• A story must be online and publicly viewable for 24 hours.

• Markings and links must be executed according to the cooperation conditions.

• Content, especially image recordings on Instagram or TikTok, must conform in detail to the cooperation conditions and these GTC.

• Social media profiles must not be set to private and must remain publicly viewable from the time of registration with Refluenced.

• Posts must be published on the Influencer's social media profile by the communicated deadline at the latest.

• Posts related to Refluenced must solely promote the Brand. In particular, the Influencer must not promote another company in the same post. The Brand and its products/services must be the focus of the post and the associated descriptions and markings.

• If the Influencer has not received any consideration after the preparation phase, they are obliged to notify the Brand immediately.

• Image recordings and social media stories (e.g., Instagram) as well as insights (i.e., analytical evaluation) of a post on a social media channel must be sent to Refluenced upon request.

• In case of negative experiences with the Brand, the Influencer is obliged to consult Refluenced first.

• In the event of multi-day events or hotel stays, if the Influencer fails to show up or cancels at short notice (less than 24 hours before the start), a contractual penalty of CHF 100.- will be due.

(12) In campaigns in which Influencers only produce video or image content for the respective company and these are explicitly not posted on social media (User Generated Content / UGC), all obligations from (11) relating to social networks are waived.

(13) The Brand can demand that the social media post be removed in justified cases.

(14) After completion of the social media post by the Influencer, Refluenced provides the Brand with the published content on its platform so that the Brand can obtain an overview of the published posts via the Refluenced website.

(15) The Brand can acquire usage rights to the contents of the campaign as part of the campaign creation. In this case, the Brand must name the author in an appropriate manner. In this case, the Influencer transfers all transferable rights to the contents to the Brand.

(16) The service of Refluenced is exclusively the mediation between Brand and Influencer. Refluenced is not a contracting party and/or debtor of the cooperation contents and/or the promised considerations. The legal relationship that arises during the cooperation between Brand and Influencer is solely between the Brand and the Influencer. Refluenced assumes no liability or guarantees concerning the execution of the mediated cooperations and will not review them.

(17) The Brand and the Influencer shall always observe the agreements with Refluenced in their contracts and warrant to Refluenced that their agreements with Refluenced are always complied with and not violated.

3. Registration, Use, Account

(1) Users are obliged to provide truthful information when registering their accounts. The accounts are always personal and may not be transferred to third parties (including employees, agencies, etc.).

(2) The user is solely responsible for the security of the password. If the password becomes known to third parties, the user is obliged to change the password immediately. The Brand is liable to Refluenced for the actions of its employees and other commissioned third parties.

(3) The user agrees not to transmit any content with viruses, Trojans, or other programming that can harm Refluenced's system. In case of violation, all access to Refluenced products will be revoked immediately. The user will indemnify Refluenced for any damage caused by a negligent breach of the aforementioned obligations. Furthermore, the user agrees to strictly refrain from participating in lotteries, pyramid schemes, chain letters, and similar actions within the Refluenced products.

(4) Users are required to adhere to and recognize the rules defined in these GTC and the campaigns when using the Refluenced products. In case of violation of these regulations, the user can be excluded from using the Refluenced products immediately. In addition, Refluenced reserves the right to assert claims for damages.

(5) After creation, the user can request to delete their account at any time. They inform Refluenced of this by email. Influencers can also initiate deletion in the app. Deletion will be carried out by Refluenced within fourteen days.

4. Copyright and Other Intellectual Property Rights

(1) The Brand grants both Refluenced and the Influencer a simple right of use for the advertised brand or company identification as well as for all other relevant intellectual property rights (e.g. copyright and designs affected by the campaign). The Brand confirms with the conclusion of the contract that Refluenced may dispose of all commercial protection rights and intellectual property rights associated with the Brand. The Brand explicitly releases Refluenced from any existing claims in this regard by third parties. This right of use is limited in time and content to the duration of the campaign and its publication on the Influencer's social media channels. Refluenced is entitled to grant a corresponding sublicense to the producing Influencer for this purpose.

5. Warranty

(1) Users agree that they have no claim to the uninterrupted availability of the Refluenced products. Interruptions or restrictions of Refluenced products are possible in order to carry out maintenance, error corrections, or updates. Therefore, there is no claim to uptime by a user if they cannot access the products from Refluenced for any reason.

(2) The Brand has the right to make changes during a campaign or to terminate the campaign early. In these cases, the Influencer has no claim to loss compensation.

(3) Withdrawal rights of the Brand for material and legal defects are hereby excluded, unless they are legally mandatory.

(4) Refluenced does not guarantee the agreed content of the published posts.

If the content of the post corresponds to the specifications and descriptions provided by the Brand, the Brand cannot refuse to accept the post from Refluenced. This also particularly applies to the content of the post, where there has not been a substantial deviation from the original order or where there are only complaints regarding the appearance of the post that do not concern the agreed quality. This is particularly the case if the Brand has not made any specifications regarding the disputed parts of the post in its offer.

(5) Refluenced assumes no liability for the accuracy of the information provided by the Brands and the correct data capture of the generated tracking links.

(6) If defects occur, the Brand is required to notify Refluenced within 7 days after the publication of the post. The goal is to quickly correct the published post.

(7) If an Influencer does not post following mediation by Refluenced, Refluenced assists the Brand in retrieving the product from the Influencer or sending an invoice for the corresponding product value to the Influencer.

(8) The Influencer guarantees that Refluenced and the Brand can use the content created by the Influencer without infringing third-party rights.

6. Liability

(1) Refluenced is only liable in cases provided for by law, e.g. for intent and gross negligence as well as in cases of personal injury. For slight negligence, Refluenced is only liable for the violation of essential contractual obligations, as well as for impossibility and delay caused by Refluenced. Liability is limited to the typical contractual damage that Refluenced had to expect upon conclusion of the contract based on the circumstances known at that time. In addition, Refluenced is fully liable for damages for which mandatory legal provisions, such as the Product Liability Act, provide for liability.

(2) Refluenced is not liable for damages that arise in connection with the use of a consideration.

(3) For data loss, Refluenced is liable only in accordance with the preceding paragraphs and only if such loss could not have been avoided by reasonable data backup measures on the part of the Brand or the Influencer.

(4) The liability limitations also apply accordingly to Refluenced's agents and subcontractors.

(5) Refluenced is not liable for the failure to label the delivered content as advertising or continuous advertising. The Brand hereby expressly releases Refluenced from any obligation arising from a lack of labeling.

(6) Refluenced is not liable for content created by the Brand or the Influencer unless Refluenced adopts such content by forwarding it to third parties.

(7) No further liability of Refluenced exists.

(8) The Influencer or the Brand is liable to Refluenced for violations of their obligations under this contract.

(9) The Influencer is obliged to indemnify Refluenced for damages arising in connection with the campaign and considerations from the Brand.

(10) If the Brand sends products or other items to the Influencer in the course of the campaign, the Brand is solely liable for the condition of the shipped items. Refluenced assumes no liability and no guarantee regarding the shipping quality and use of the Brand's product/service.

(11) Unless otherwise agreed, the statutory limitation periods apply.

7. Confidentiality

(1) Users are obliged to keep confidential all information or prices published in Refluenced products. Confidential information includes, in particular, information about data from participating Influencers or Brands. This provision includes the dissemination of information on the internet and social networks.

(2) Users are permitted to recommend Refluenced.

(3) The following points are excluded from the confidentiality obligation:

1. Information that was known to the user prior to registration with Refluenced.

2. Information that the user has received from third parties about the Influencer or the Brand after registration.

3. Generally publicly available information about a participating Influencer or a participating Brand.

(4) Violations of these regulations may lead to compensation claims.

8. Data Processing Notices

(1) Refluenced collects user data in the course of contract processing, campaigns, and the provision of products. In doing so, Refluenced particularly observes the provisions of the DSDVO and the Swiss Data Protection Act.

(2) Without the consent of the users, inventory and usage data will only be collected, processed, or used as far as necessary for the execution of the contractual relationship and for the use and billing of telemedia.

(3) Without the consent of the users, Refluenced will not use data for advertising, market, or opinion research purposes.

(4) The Influencer hereby agrees that Refluenced may pass on the address provided at profile creation to the corresponding Brand in the event of a successful application.

(5) The user agrees that Refluenced may send all marketing materials to the specified address in any form. This can be opposed by email.

(6) The user has the option at any time to retrieve, change, or delete the data stored in their profile either in their profile or by direct request to Refluenced. Furthermore, reference is made to the privacy policy regarding the user's consents and further information on data collection, processing, and usage, which is accessible on Refluenced's website (https://refluenced.ch/legal/privacy-policy).

9. Final Provisions

(1) The law of the Swiss Code of Obligations applies to contracts between Refluenced and the user.

(2) The place of jurisdiction for all disputes arising from contractual relationships between the Influencer and Refluenced is Zurich, Switzerland.

(3) Should individual provisions of these GTC be wholly or partially ineffective, the validity of the remaining GTC shall not be affected. Instead of the ineffective points, the statutory provisions, if available, shall apply.

II) Special Conditions for Brands

1. Conclusion of Contract

(1) After successfully conducting a campaign, the Brand may not enter into any cooperative relationship with the Influencer outside of the Refluenced platform for the next 18 months.

(2) If the Brand enters into a cooperative relationship outside of Refluenced with an Influencer after this Influencer has applied for a campaign of the Brand on the Refluenced platform, the Brand is obliged to pay a mediation fee to Refluenced of CHF 5,000 per Influencer.

(3) Once an Influencer participates in a campaign, the respective cooperation with the Influencer can no longer be canceled. The Brand is obliged to provide the Influencer with their consideration. If the Brand does not provide the consideration within the defined preparation phase (usually 7 days), timely fulfillment on the part of the counterparty (Influencer) can no longer be guaranteed.

(4) The duration of the contract is specified in the agreement. The following applies:

1. The plan (or subscription) can be terminated at any time at the end of the contract duration.

2. The contract will automatically renew for the same contract duration specified in the agreement unless otherwise defined in the agreement.

3. For both annual and monthly contract durations, the content buyouts specified in the respective plan, which are included, are calculated over 12 months. With these content buyouts, a Brand can acquire all rights to the content created in the context of a campaign.

4. In the event of a termination of a monthly plan, any content buyouts that were overused will be billed by Refluenced to the Brand. Example: If a Brand has a monthly plan with 12 annual content buyouts, fully utilizes these within 3 months, and cancels and ends the contract after 3 months, an additional 9 buyouts will be charged by Refluenced.

5. The services offered by Refluenced reset on the day of the contract renewal. Unused services are deemed forfeited. Exceptions are content buyouts on a monthly basis.

2. Fees and Commissions

(1) The costs for additional content buyouts and further extras can be found on the website.

(2) Refluenced shows the Brand the estimated results. Detailed reporting is available on the platform after the campaign.

(3) The prices quoted by Refluenced are net (excluding VAT).

(4) Invoices are payable within 30 days unless otherwise agreed.

(5) In the case of late payment, Refluenced has the right to suspend contractually assured services immediately. This right includes the blocking of online access. Furthermore, in this case, Refluenced reserves the unilateral right to terminate the agreement without notice. In the event of a default in payment, the Brand will be charged reminder fees of CHF 25 per reminder. Additionally, a default interest of 5% per year is owed from the due date.

(6) Refluenced reserves the right to change its prices (e.g., monthly plans, annual plans, UGC campaigns, content buyouts) at any time. The Brand will be informed of changes at least four weeks in advance by email. For annual plans concluded before the price changes come into effect, a corresponding change will take effect only after the expiration of the one-year contract period.

3. Customer Reference

(1) Unless otherwise agreed or the Brand expressly objects, the Brand agrees with the conclusion of the contract to serve as a reference for Refluenced. The references may be presented in both digital and non-digital form. Refluenced may use both the Brand's company name and logo, as well as publicly known information and reporting information from campaigns when presenting the reference.

(2) The Brand can request the removal of the reference at any time. Refluenced will carry out the removal of the reference within 20 days.

4. Non-solicitation

The Brand agrees not to solicit any employees of Refluenced in any form whatsoever. This non-solicitation obligation applies during the duration of the contractual relationship between Refluenced and the Brand as well as for one year after its termination. In the event of a violation of this non-solicitation obligation, the Brand undertakes to pay a penalty of CHF 20,000. Payment of the penalty does not exempt from the non-solicitation obligation. Further claims for damages remain reserved.

III) Special Conditions for Influencers

1. Registration, Use, Account

(1) Only one account may be created per Influencer.

(2) The Influencer must be at least 16 years old.

(3) The Influencer agrees to provide Refluenced with their follower statistics and the reach achieved by linking their social media account with Refluenced.

(4) The Influencer is aware that Brands and Refluenced can see which content the Influencer has already published in the Refluenced products. Refluenced and Brands are thus able to read all campaign-relevant data (likes, follower counts, comments, reach, views, impressions, playback time, captions, etc.).

(5) Refluenced verifies each Influencer based on specified criteria. Refluenced reserves the right to refuse to admit Influencers even if they meet these criteria.

(6) Only verified Influencers can apply for campaigns and will be presented to Brands as potential cooperation partners.

2. Breaches of Contract

(1) If an Influencer violates or disregards these GTC or the Brand's cooperation conditions, Refluenced reserves the right to exclude the Influencer from the respective campaign. If an Influencer is excluded, their claim to the compensation mentioned in the cooperation conditions will be canceled.

(2) If Refluenced only becomes aware of a violation of these GTC or cooperation conditions afterwards, Refluenced reserves the right to reclaim the compensation incurred from the Influencer. Additionally, in the event of a violation, there may also be a claim for payment of shipping costs, product costs, and covering possible damages.

(3) If the Influencer does not comply with the cooperation requirements or contractual provisions in a timely manner, they are obliged to return the product along with all received enclosures to the Brand. If the Influencer fails to comply with this obligation, Refluenced reserves the right to charge the Influencer the price of the product or service. Deviating agreements for individual cooperations are only valid with the consent of Refluenced.

(4) Refluenced has the right to exclude Influencers from the platform at any time if the cooperation conditions or these GTC are violated. Another reason for exclusion from the platform arises if Influencers publish content on social networks that is not compatible with Refluenced and/or the (potential) Brand on the platform.

(5) The Influencer has no claim against Refluenced for participation in a campaign.

(6) If the Influencer does not publish the agreed postings within the agreed timeframe and retains the compensation of the cooperation (e.g., product), the Influencer must contact Refluenced within 14 days and refund the compensation or the value of the reward to the company. If the Influencer does not comply with this obligation within 14 days, an additional processing fee of CHF 100.- will be due.

If the Influencer fails to comply with this obligation within another 30 days, an additional processing fee of CHF 200.- will be due.

3. Content

(1) The Influencer agrees to place legally required labels on the content before publication. In particular, the labeling as "advertisement" may be relevant. The Influencer must obtain their own legal inquiries regarding this. The Influencer explicitly releases the Brand and Refluenced from any obligations regarding the labeling. Both Refluenced and the Brand are therefore not liable for missing labeling on the content.

(2) The Influencer acknowledges that links provided by Refluenced or by Brands may be tracking links that measure the number of clicks related to a post.

(3) The Influencer is obliged not to make offensive, incendiary, pornographic, racist, or extremist statements.

(4) Furthermore, the Influencer may not use any photos, graphics, videos, texts, music, or other materials in the production whose content or use may be criminal or otherwise violate criminal regulations. This particularly includes photos, graphics, videos, texts, or other materials whose content is offensive, incendiary, pornographic, racist, or extremist. The Influencer observes all protection rights of other owners regarding the content they use.

(5) If the Influencer violates any of the aforementioned obligations, Refluenced reserves the right to terminate the contract immediately. The Influencer indemnifies Refluenced from all claims by third parties based on a violation of their aforementioned contractual obligations. They will compensate Refluenced for any damages caused by an intentional breach of the aforementioned obligations.

(6) Should a circumstance arise where third parties (e.g., Brand) have disseminated the Influencer's contributions and the Influencer has a right to deletion of the contribution, Refluenced will strive to enforce this right. However, if the contributions are already in circulation, Refluenced cannot guarantee the deletion of the contributions.

(7) Brands have the option to run Partnership Ads on Instagram or Spark Ads on TikTok and their future equivalent labels on the content created as part of a campaign. Refluenced reserves the right to make the corresponding codes of the Influencers accessible to the Brand.

(8) Influencers will be informed in the app about the campaign overview that Partnership Ads/Spark Ads may be run.

4. Copyright and Other Performance Protection Rights

(1) The authorship of the Influencer is recognized. However, the Influencer permanently waives their right to attribution.

(2) The Influencer grants Refluenced an exclusive, unlimited right to use the created content, including all text, image, and/or video materials, including music. The exclusive right does not include the right of the Influencer to publish the posts created during the campaign on their other social media channels. The Influencer transfers to Refluenced all usage and exploitation rights concerning the content, including the right of publication.

(3) The Influencer confirms upon contract conclusion that they possess all rights to the published content created during a campaign – e.g. texts, photos, graphics, videos, or other materials. This particularly pertains to copyright and all other performance protection rights, trademark rights, database rights, and rights to one’s own image.

(4) The Influencer allows Refluenced to distribute sublicenses to the Brand to the extent described.

5. Consideration

(1) The provision of consideration by the Brand to the Influencer is done individually as stated in the campaign details.

(2) The Influencer receives the considerations listed in the cooperation conditions for their advertising performance. Beyond that, they have no claim to further compensation or other services from either Refluenced or the Brand.