General Terms and Conditions for professional Creatives

1. Scope and Change of the General Terms and Conditions

1.1 cherrydeck.com is a service of Cherrydeck GmbH, Axel Springer Platz 3, 20355 Hamburg, Germany ("Cherrydeck"). These General Terms and Conditions govern the use of the Services on the internet platform cherrydeck.com ("Platform") between Cherrydeck and photographers, videographers and models using the Platform ("Users"). Deviating general terms and conditions of the Users are not applicable, unless Cherrydeck agrees their validity expressly in writing.

1.2 The use of the Platform is oriented around commercial photography and is only intended for Users who are entrepreneurs within the meaning of § 14 German Civil Code (BGB).

1.3 Cherrydeck offers its Users to participate in marketing activities and generate business opportunities through a comprehensive online marketing tool suite and an online portfolio (see also clause 4.1 of these General Terms and Conditions).

1.4 Cherrydeck reserves the right to amend these General Terms and Conditions at any time with effect also within the existing contractual relationship. Cherrydeck shall notify the Users of such changes at least 30 calendar days before the planned entry into force of the changes. If the respective User does not object within 30 calendar days of receipt of the notification and continues to use the Services and/or Platform even after expiry of the objection period, the changes shall be deemed to have been agreed with effect from the expiry of the period. Alternatively, the amended General Terms and Conditions shall apply with the confirmation at the next login on the Platform that the amendments are accepted. In the event of an objection, the Services and/or Platform may no longer be used. In this case, the user profile must be deleted. In the notification of change, Cherrydeck will point out the right to object and the consequences of such.

2. Conclusion of Contract

2.1 The accessibility of the Platform via the internet is not a legally binding offer to enter into a contract.

2.2 The contractual relationship between Cherrydeck and the User regarding the use of the Services on the Platform shall come into effect through the Users offer, which lies in the registration, and the acceptance of this offer by Cherrydeck. Acceptance takes place through the activation of User's profile (for further details see also clause 3.3).

3. Registration and User Profile

3.1 The use of the Services available on the Platform requires the registration of the User. There is no entitlement to participation.

The respective User ensures that he/she is of legal age and that the User is no Consumer in the meaning of § 14 German Civil Code (BGB). In the event that the User acts on behalf of a legal entity, the User warrants that he/she is authorized to act on behalf of the legal entity. Upon request, the User will provide Cherrydeck with proof of the information assured in accordance with this clause 3.1. If the User does not prove that the representations in Section 3.1 apply, Cherrydeck shall have the discretion to cancel the registration process or to delete a created profile and to exclude the User from participation in the Platform.

3.2 Cherrydeck offers its Users the choice between a basic access and various memberships. Registration for basic access is free of charge. The various memberships offer the User extended services for a periodical fee. The fees currently payable for the various memberships will be displayed during the registration process. The User may test each of the various memberships 14 days free of charge. If the User does not cancel the selected membership within the trial period, the fee will be charged (see also clause 8). The User can change from a basic access to a membership at any time. The membership has a fix term for the payment period selected by the User (see clause 9.2). If the User receives an engagement via the Platform, a Referral Fee shall in any case be payable in accordance with Clause 8, regardless of membership or basic access.

3.3 The User shall provide Cherrydeck with complete and accurate contact details and other information requested by Cherrydeck during the registration process. After the User has provided all the requested data, Cherrydeck will check it for completeness and plausibility. If Cherrydeck considers the information to be complete and plausible and if there are no other concerns, Cherrydeck will activate the access requested by the User and notify the User thereof by e-mail. The e-mail shall be deemed to be acceptance of the application for participation. Upon receipt of the e-mail, the User is entitled to use the Platform within the scope of these General Terms and Conditions. For this purpose, the User must confirm the activation in advance by clicking on the link contained in the e-mail.

3.4 Each User receives an individual account and user ID when signing up. During the registration process, the User must enter a user name and password for login on the Platform. It is the User's responsibility to ensure that the user name does not infringe any third party rights, in particular name or trademark rights, and does not offend common decency.

3.5 The User must keep the login data including the password secret and must not make them accessible to unauthorized third parties.

3.6 It is also the User's responsibility to ensure that access to the Platform and the use of the Services available on the Platform is carried out exclusively by the User or by persons authorized by the User. Sharing an individual account or allowing it to be used by third parties is not permitted. If it is feared that unauthorized third parties have gained or will gain knowledge of the User's access data, Cherrydeck must be informed immediately.

The User is liable for any use and/or other activity carried out under the User's access data in accordance with the statutory provisions.

3.7 The User is obligated to update the contact details and other information in the User's profile in the event of changes during the use of the Platform.

3.8 As a rule, Cherrydeck does not verify the identity of the profile owners and the information in the profiles. Cherrydeck therefore does not guarantee that each profile owner is the person that the respective profile owner claims to be.

3.9 Cherrydeck may delete inactive accounts that have not been used for a period of longer than one year after being notified once in advance.

4. Range of Services, Change of Services, Technical Requirements and Availability of Services

4.1 Depending on the access the User chooses (basic access or one of the memberships), Cherrydeck will make Services available to the Users on the Platform for use for the term of the contract between Cherrydeck and the respective User. Such Services may include, for example, the participation in marketing activities to generate business opportunities through a through a comprehensive online marketing tool suite. Furthermore the services contain the provision of data, contributions, image and sound documents, information and other content as well as the possibility of creating individual profiles and portfolios to show the User's works to other Users and potential clients as well as uploading photos and other content to the User's profile and portfolio and getting in contact with other Users and potential clients, e.g. by writing and publishing classified advertisements on the Platform, by pitching to exciting paid opportunities and collaborations directly on the Platform or by writing personal messages(all together "Services").

The content and scope of the Services are determined by the respective contractual agreements, in particular the basic access or the selected membership chosen by the User and by the functionalities currently available on the Platform.

4.2 The Services may also include third-party services to which Cherrydeck merely provides access. The use of such services - which are identified as third-party services - may be subject to regulations that deviate from these General Terms and Conditions or to additional regulations to which the service provider will draw the User's attention in each case.

User data is stored on a server operated by Cherrydeck or one of its stated service providers or user data is stored by content providers integrated by Cherrydeck.

4.3 Cherrydeck may change its Services with immediate effect without notice if the scope of the amended services does not fall significantly short of the Services agreed upon conclusion of the contract or if Cherrydeck realizes that the new or amended service is not used by the Users. In all other cases clause 1.4 of these General Terms and Conditions applies.

4.4 The Users themselves are responsible for creating the technical conditions necessary for the contractual use of the Platform and the Services within their area of responsibility. Cherrydeck does not owe them any advice in this regard.

4.5 Cherrydeck points out that the usage activities may be monitored to the extent permitted by law. This may also include the logging of IP connection data and call histories as well as their evaluation in the event of a concrete suspicion of a violation of these General Terms and Conditions and/or in the event of a concrete suspicion of the existence of any other illegal act or criminal offense.

4.6 There is a right to use the Services and the Platform only within the framework of the technical and operational possibilities of Cherrydeck. Cherrydeck shall endeavor to ensure that the usability of its Services is as uninterrupted as possible. However, temporary restrictions or interruptions may occur due to technical faults (e.g. interruption of the power supply, hardware and software errors, and technical problems in the data lines).

5. Protection of Content, Responsibility for Third-Party Content

5.1 The content available on the Platform is predominantly protected by copyright or other intellectual property rights and is the property of Cherrydeck, the other Users or other third parties who have made the respective content available. The compilation of the content as such may be protected as a database or database work within the meaning of §§ 4 (2), 87a (1) UrhG. The User may only use this content in accordance with these General Terms and Conditions and within the framework specified on the Platform.

5.2 The content available on the Platform comes in part from Cherrydeck and in part from other Users or other third parties. Cherrydeck does not check content from Users or third parties for completeness, accuracy and legality and therefore assumes no responsibility or warranty for the completeness, accuracy and legality of the content of Users or other third parties. This also applies with no regard to the quality of such content and its suitability for a particular purpose, and also insofar as it concerns content from third parties on linked external websites.

Content on the Platform that is marked with a corresponding copyright notice is content of Users or other third parties. The remaining content is content of Cherrydeck.

5.3 If Users conclude contracts with clients via the Platform, Cherrydeck does not become a contractual partner. The respective User and the client are solely responsible for the execution and fulfillment of the respective contract. Cherrydeck is not liable for breaches of duty by the User or the client arising from the contract concluded via the Platform.

6. Rights to Use

Own Content posted by the User on the Platform

Cherrydeck respects your ownership of your content and only requires a basic set of rights to use to run the platform.

6.1 Users can post content, especially photos, to their profile on the Platform and thus make it available to third parties, subject to the following regulations.

6.2 By posting content, the User grants Cherrydeck in each case a gratuitous and transferable right of use to the respective content, in particular

  • to store the content on the server of Cherrydeck and/or infrastructure service providers of Cherrydeck or servers of third-party providers as well as to publish it, in particular to make it publicly available (e.g. by displaying the content on the Platform),
  • to edit and reproduce, insofar as this is necessary for the provision or publication of the respective content, and
  • to grant rights of use &ndash including rights of use against payment &ndash to third parties in respect of the content of Users in accordance with para. 6.5- 6.8. If a right of use is granted against payment, the User must agree to this granting in advance.

Insofar as the User takes the content posted by him/her back down from the Platform, the right of use and exploitation granted to Cherrydeck above shall expire. However, Cherrydeck remains entitled to retain copies made for backup and/or verification purposes.

6.3 The respective User is fully responsible for the content posted by him/her. Cherrydeck does not check the content for completeness, accuracy, legality, actuality, quality and suitability for a particular purpose.

The respective User therefore declares and warrants to Cherrydeck that he/she is the sole owner of all rights to the content posted by him/her on the Platform, or is otherwise authorized (e.g. by effective permission from the rights holder) to post the content on the Platform and to grant the rights of use and exploitation pursuant to the preceding paragraph 6.2.

6.4 Cherrydeck reserves the right to refuse the posting of content and/or to edit, block or remove already posted content (including private messages) without prior notice if the posting of the content by the User or the posted content itself has led to a violation of clause 7 or if there are concrete indications that a serious violation of clause 7 will occur. However, Cherrydeck shall take into account the legitimate interests of the User and choose the mildest means to prevent the violation of clause 7.

Content made available on the Platform by Cherrydeck, other Users or third parties

6.5 Unless further use is expressly permitted in these General Terms and Conditions or on the Platform or is enabled on the Platform by a corresponding functionality (e.g. download button),

  • Users may access and display the content available on the Platform online exclusively for personal purposes. This right of use is limited to the duration of the contractual use of the Platform;
  • the User is prohibited from editing, modifying, translating, presenting or performing, publishing, exhibiting, reproducing or distributing the content available on the Platform, in whole or in part. It is also prohibited to remove or change copyright notices, logos and other marks or protective notices.

6.6 Users are only entitled to download content and to print content if a download or print option is available as a functionality on the Platform (e.g. by means of a download button).

Users shall receive a non-exclusive right of use for an unlimited period for their own, non-commercial use of the content duly downloaded or printed out by them. In all other respects, all rights to the content shall remain with the original rights holder (Cherrydeck, other Users or a third party).

6.7 The mandatory statutory rights (including reproduction for private and other own use according to § 53 UrhG) remain unaffected.

6.8 The granting of the rights of use is conditional upon compliance with these General Terms and Conditions. In the event of a breach of these General Terms and Conditions by the User, rights of use to the Platform and the Services including its content shall automatically expire. Cherrydeck may, at its own discretion and without prior notice, block a User's access to this Platform, including all functions and content, in whole or in part, if there are reasons to believe that the User violates the General Terms and Conditions or causes damage through his use of the Platform and Services, including its content.

7. Prohibited Activities

7.1 User are prohibited from any activities on or in connection with the Platform and/or Services that violate applicable law, infringe the rights of third parties or violate the principles of the protection of minors. In particular, Users are prohibited from the following actions:

  • the posting, distribution, offer and advertising of pornographic content, services and/or products that violate youth protection laws, data protection laws and/or other laws and/or are fraudulent;
  • the use of content that insults or defames other users or third parties;
  • the use, provision and distribution of content, services and/or products that are protected by law or encumbered with third-party rights (e.g. copyrights) without being expressly authorized to do so.

7.2 Furthermore, regardless of any violation of the law, Users are also prohibited from the following activities when posting or uploading their own content on the Platform as well as when communicating with other Users:

  • the distribution of viruses, Trojans and other malicious files;
  • the sending of junk or spam e-mails and chain letters;
  • the dissemination of lewd, offensive, sexually oriented, obscene or defamatory content or communication, as well as content or communication that is suitable to promote or support racism, fanaticism, hatred, physical violence or illegal acts (explicitly or implicitly in each case);
  • harassing other Users, e.g. by contacting them personally several times without or contrary to the reaction of the other User, as well as encouraging or supporting such harassment;
  • requesting other Users to disclose passwords or personal data for commercial or illegal purposes;
  • the distribution and/or public reproduction of content available on the Platform and not owed by the respective User, unless the User is expressly permitted to do so by the respective author or is expressly made available as a Service of the Platform.

7.3 In addition, any use of the Platform that negatively affects the Platform itself or websites connected to it, or software accessed through the Platform, is prohibited.

7.4 Users may not modify, adapt, translate, create derivative works from, reverse engineer, disassemble or otherwise attempt to derive the source code of the Platform. Legal rights remain unaffected, in particular the User's right to decompile the Platform in order to obtain the information necessary to establish its interoperability with other programs, unless Cherrydeck makes such information available to the User on reasonable terms. The User is not permitted to decompile the Platform for further purposes.

7.5 If the User becomes aware of any illegal, abusive, non-contractual or otherwise unauthorized use of the Platform, the User must contact Cherrydeck at team(at)Cherrydeck.com. Cherrydeck will then investigate the matter and, if necessary take appropriate action.

7.6 If there is a suspicion of illegal or punishable actions, Cherrydeck is entitled and, if necessary, also obliged to check the activities of the User concerned and, if necessary, to take appropriate legal steps. This may also include forwarding the facts of the case to the public prosecutor's office.

8. Use of fee-based memberships, Fees and Payment Terms

8.1 A basic access on Cherrydeck is free of charge. A basic access includes the creation of a User profile of the Platform and of a portfolio. The User has limited access to certain features and can apply for smaller jobs and awards.

8.2 The User has the option to choose between different memberships subject to a fee, which open up additional features and services. A description of the various memberships, their fees and their additional features and services can be found on the website https://cherrydeck.com/features. The provision of the memberships on the Cherrydeck website constitutes a binding offer to conclude a contract. The User makes a binding declaration of acceptance by selecting the "START FREE TRIAL" button and entering the User's billing data such as credit card details or similar, and actively selecting to proceed in the checkout. The contract is concluded immediately by clicking on the Checkout-Button. The fee is due for payment at the end of the 14-day (336-hour) free trial period unless the membership is cancelled within the free trial period or at the beginning of each renewal term (see clause 9.3) and is billed according to the payment method selected by the User.

8.3 Regardless of whether the User has chosen the basic access or one of the memberships, Cherrydeck will always receive a referral fee from the User upon referral of a job or upon occasion of the referral of a job via the Platform. This fee amounts to 20% in the case of a membership and 25% in the case of a basic access of the remuneration generated by the referred job. If a job placed via the Platform leads to further follow-up jobs or to the reordering of photos, Cherrydeck additionally receives a referral fee in the amount of 15% in the case of a membership and 25% in the case of a basic access of the remuneration generated by the respective follow-up job or the reordering of photos (all together "Referral Fee"). The Referral Fee is due for payment upon conclusion of the contract between the User and his client referred or upon occasion of a conclusion of a contract via the Platform.

8.4 All fees stated are inclusive of the applicable statutory value-added tax.

Additional charges may occur if payment collection from a User payment method fails. These payments may be collected by third party services, after at least two written warnings.

8.5 The use of the Platform itself is free of charge. Excluded from this are the usual costs for the Internet connection, over which Cherrydeck has no control.

8.6 Users are only permitted to offset counterclaims that are undisputed or have been legally established. Users may only assert a right of retention if it is based on the same contractual relationship.

9. Term and Termination

9.1 Cherrydeck may discontinue the operation of the Platform following prior notice. In this case Cherrydeck shall reimburse the User on a pro rata basis for any fees paid in connection with one of the fee-based memberships in advance.

9.2 The basic access runs for an unspecified period of time. The usage of the Platform can be terminated by the User at any time without notice and cause by deleting the User's profile.

9.3 A membership runs for the selected payment period, i.e. three months or one year, ("Term") and is automatically renewed for the selected payment period, unless the User terminates his/her membership in writing (e-mail is sufficient) with a notice period of 4 weeks to the end of the Term or the respective renewal term. A refund of fees already paid for one of the memberships will not be made. After termination of the membership by the User, the User shall retain the basic access until its termination, but the additional features and services of the terminated membership shall cease to apply.

9.4 The right to extraordinary termination remains unaffected. A good cause for an extraordinary termination by Cherrydeck exists in particular if the User has violated or circumvented the regulations in clauses 3, 6, 7 and 8.

9.5 Without prejudice to Section 6.3, Cherrydeck can temporarily block Users and prevent them from placing further content for as long as the User in question is violating the provisions of the general terms and conditions, for as long as the User cannot be reached at the address provided, or for as long as certain facts support provide suspicion of abuse of the Services, especially those regarding copyright violations and the prohibited actions as described in clause 7.

10. Privacy

10.1 One of Cherrydeck's quality standards is to handle the Users' personal data (hereinafter referred to as "Personal Data") responsibly. The Personal Data resulting from the registration on the Platform as well as from the use of the available Services are therefore only collected, stored and processed by Cherrydeck insofar as this is necessary for the contractual provision of Services and is permitted by legal regulations or ordered by the legislator. Cherrydeck shall treat the User's Personal Data confidentially and in accordance with the provisions of the applicable data protection law. The privacy policy provides more detailed information about the collection, processing and use of personal data on or in connection with the Platform.

10.2 The Platform offers Users the opportunity to transmit their personal data to other Users of potential clients in part or in full. Users transmit this data at their own risk.

11. Limitation of Liability

Limitation of liability for the basic access and other services/content free of charge

11.1 In the event that the User incurs damage as a result of using the basic access and other services provided free of charge on the Platform (including the retrieval of free content), Cherrydeck shall only be liable to the extent that the User's damage has arisen as a result of the contractual use of the basic access, free content and/or services, and only in the event of intent (including fraudulent intent (Arglist)) and gross negligence on the part of Cherrydeck.

Limitation of Liability for memberships and other fee-based services/content

11.2 Cherrydeck shall be liable to the Users without limitation in the event of intent or gross negligence for all damages caused by Cherrydeck and its legal representatives or vicarious agents.

11.3 In case of slight negligence, Cherrydeck shall be liable without limitation in the event of injury to life, body or health.

11.4 The statutory provisions in relation to product liability shall remain unaffected.

11.5 Apart from this, in case of slight negligence Cherrydeck shall only be liable if an obligation has been breached which is essential to fulfill this contract's purpose ("Cardinal Obligation"). The term Cardinal Obligation represents all obligations which must be fulfilled to facilitate the implementation of the contract/Services and upon whose fulfillment the Users regularly rely. In the event of a breach of a Cardinal Obligation, liability is limited to typically foreseeable damages at the time of the conclusion of the contract. Para.11.2, 11.3 and 11.4 remain unaffected.

11.6 The User must exempt Cherrydeck, its managers, officers and all of the companies associated with it from losses, damages, and claims of third parties that have arisen from the User's breach of clauses 3.3- 3.6, 6.3 and 7.

Final Provisions

12.1 The procedural and substantive law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and German international private law, applies to these General Terms and Conditions and the legal relationship between Cherrydeck and the Users.

12.2 The place of jurisdiction for disputes arising from the legal relationship between the parties is Hamburg, Germany, insofar as such an agreement on the place of jurisdiction is permissible.

12.3 Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the legal validity of the remaining provisions. 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 purpose intended by the parties.

Last updated: March 2021

General Terms and Conditions for Clients and other Businesses

1. Scope and Change of the General Terms and Conditions

1.1 cherrydeck.com is a service of Cherrydeck GmbH, Axel Springer Platz 3, 20355 Hamburg, Germany ("Cherrydeck"). These General Terms and Conditions govern the use of the Services on the internet platform cherrydeck.com ("Platform") between Cherrydeck and companies using the Platform ("Client"). Deviating general terms and conditions of the Clients are not applicable, unless Cherrydeck agrees their validity expressly in writing.

1.2 The use of the Platform is oriented around commercial photography and is only intended for Clients who are entrepreneurs within the meaning of § 14 German Civil Code (BGB).

1.3 Cherrydeck offers the Clients the opportunity to easily find creatives, in particular photographers, videographers and models ("Creatives") for the Client's campaigns or other jobs.

1.4 Cherrydeck reserves the right to amend these General Terms and Conditions at any time with effect also within the existing contractual relationship. Cherrydeck shall notify the Clients of such changes at least 30 calendar days before the planned entry into force of the changes. If the respective Client does not object within 30 calendar days of receipt of the notification and continues to use the Services and/or Platform even after expiry of the objection period, the changes shall be deemed to have been agreed with effect from the expiry of the period. Alternatively, the amended General Terms and Conditions shall apply with the confirmation at the next login on the Platform that the amendments are accepted. In the event of an objection, the Services and/or Platform may no longer be used. In this case, the Client's profile must be deleted. In the notification of change, Cherrydeck will point out the right to object and the consequences of such.

2. Conclusion of Contract

2.1 The accessibility of the Platform via the internet is not a legally binding offer to enter into a contract.

2.2 The contractual relationship between Cherrydeck and the Client regarding the use of the Services on the Platform shall come into effect through the Client&aposs offer, which lies in the registration, and the acceptance of this offer by Cherrydeck. Acceptance takes place through the activation of Client's profile (for further details see also clause 3.3).

3. Registration and User Profile

3.1 The use of the Services available on the Platform requires the registration of the Client. There is no entitlement to participation.

The respective Client ensures that he/she is of legal age and that the Client is no Consumer in the meaning of § 14 German Civil Code (BGB). In the event that the Client acts on behalf of a legal entity, the Client warrants that he/she is authorized to act on behalf of the legal entity. The Client further ensures that the Client is not a competitor of Cherrydeck and that his registration does not also serve to draw the attention of Cherrydeck users to a comparable offer and to lure them away from the Platform. Upon request, the Client will provide Cherrydeck with proof of the information assured in accordance with this clause 3.1. If the Client does not prove that the representations in Section 3.1 apply, Cherrydeck shall have the discretion to cancel the registration process or to delete a created profile and to exclude the Client from participation in the Platform.

3.2 Cherrydeck offers its Clients the choice between a basic access and a full membership. Registration for basic access is free of charge. The full membership offers the Client extended services for a periodically fee. The fee currently payable for the full membership will be displayed during the registration process (see also clause 8). The Client can change from a basic access to a membership at any time. The membership has a fix term for the payment period selected by the Client (see clause 9.2). If the Client finds a Creative for the job the Client wants to place via the Platform, a service fee shall in any case be payable in accordance with Clause 8, regardless of membership or basic access.

3.3 The Client shall provide Cherrydeck with complete and accurate contact details and other information requested by Cherrydeck during the registration process. After the Client has provided all the requested data, Cherrydeck will check it for completeness and plausibility. If Cherrydeck considers the information to be complete and plausible and if there are no other concerns, Cherrydeck will activate the access requested by the Client and notify the Client thereof by e-mail. The e-mail shall be deemed to be acceptance of the application for participation. Upon receipt of the e-mail, the Client is entitled to use the Platform within the scope of these General Terms and Conditions. For this purpose, the Client must confirm the activation in advance by clicking on the link contained in the e-mail.

3.4 Each Client receives an individual account and user ID when signing up. During the registration process, the Client must enter a user name and password for login on the Platform. It is the Client&aposs responsibility to ensure that the user name does not infringe any third party rights, in particular name or trademark rights, and does not offend common decency.

3.5 The Client must keep the login data including the password secret and must not make them accessible to unauthorized third parties.

3.6 It is also the Client's responsibility to ensure that access to the Platform and the use of the Services available on the Platform is carried out exclusively by the Client or by persons authorized by the Client. Sharing an individual account or allowing it to be used by third parties is not permitted. If it is feared that unauthorized third parties have gained or will gain knowledge of the Client's access data, Cherrydeck must be informed immediately.

The Client is liable for any use and/or other activity carried out under the Client's access data in accordance with the statutory provisions.

3.7 The Client is obligated to update the contact details and other information in the Client's profile in the event of changes during the use of the Platform.

3.8 As a rule, Cherrydeck does not verify the identity of the profile owners and the information in the profiles. Cherrydeck therefore does not guarantee that each profile owner is the person or company that the respective profile owner claims to be.

3.9 Cherrydeck may delete inactive accounts that have not been used for a period of longer than one year after being notified once in advance.

4. Range of Services, Change of Services, Technical Requirements and Availability of Services

4.1 Depending on the access the Client chooses (basic access or full membership), Cherrydeck will make Services available to the Clients on the Platform for use for the term of the contract between Cherrydeck and the respective Client. Such Services may include, for example, the provision of data, contributions, image and sound documents, information and other content as well as the possibility of creating individual profiles and search for and find Creatives for a campaign or another job the Client or the customer of the Client wants to place via the Platform and manage the contacts found via the Platform (all together "Services"). The Client can also acquire rights of use to photos via the Platform.

The content and scope of the Services are determined by the respective contractual agreements, in particular the basic access or full membership chosen by the Client and by the functionalities currently available on the Platform.

4.2 Cherrydeck may change its Services with immediate effect without notice if the scope of the amended services does not fall significantly short of the Services agreed upon conclusion of the contract or if Cherrydeck realizes that the new or amended service is not used by the Clients or Creatives. In all other cases clause 1.4 of these General Terms and Conditions applies.

4.3 The Clients themselves are responsible for creating the technical conditions necessary for the contractual use of the Platform and the Services within their area of responsibility. Cherrydeck does not owe them any advice in this regard.

4.4 Cherrydeck points out that the usage activities may be monitored to the extent permitted by law. This may also include the logging of IP connection data and call histories as well as their evaluation in the event of a concrete suspicion of a violation of these General Terms and Conditions and/or in the event of a concrete suspicion of the existence of any other illegal act or criminal offense.

4.5 There is a right to use the Services and the Platform only within the framework of the technical and operational possibilities of Cherrydeck. Cherrydeck shall endeavor to ensure that the usability of its Services is as uninterrupted as possible. However, temporary restrictions or interruptions may occur due to technical faults (e.g. interruption of the power supply, hardware and software errors, and technical problems in the data lines).

5. Protection of Content, Responsibility for Third-Party Content

5.1 The content available on the Platform is predominantly protected by copyright or other intellectual property rights and is the property of Cherrydeck, the Creatives or other third parties who have made the respective content available. The compilation of the content as such may be protected as a database or database work within the meaning of §§ 4 (2), 87a (1) UrhG. The Client may only use this content in accordance with these General Terms and Conditions and within the framework specified on the Platform.

5.2 The content available on the Platform comes in part from Cherrydeck and in part from the Creatives or other third parties. Cherrydeck does not check content from the Creatives or third parties for completeness, accuracy and legality and therefore assumes no responsibility or warranty for the completeness, accuracy and legality of the content of Users or other third parties. This also applies with no regard to the quality of such content and its suitability for a particular purpose, and also insofar as it concerns content from third parties on linked external websites.

Content on the Platform that is marked with a corresponding copyright notice is content of Creatives or other third parties. The remaining content is content of Cherrydeck.

5.3 If Clients conclude contracts with Creatives via the Platform, Cherrydeck does not become a contractual partner. The respective Client and the Creative are solely responsible for the execution and fulfillment of the respective contract. Cherrydeck is not liable for breaches of duty by the Client or the Creative arising from the contract concluded via the Platform.

6. Rights to Use

Content made available on the Platform by Cherrydeck, other Users or third parties

6.1 Unless further use is expressly permitted in these General Terms and Conditions or on the Platform or is enabled on the Platform by a corresponding functionality (e.g. download button),

  • Clients may access and display the content available on the Platform online exclusively for personal purposes. This right of use is limited to the duration of the contractual use of the Platform;
  • the Client is prohibited from editing, modifying, translating, presenting or performing, publishing, exhibiting, reproducing or distributing the content available on the Platform, in whole or in part. It is also prohibited to remove or change copyright notices, logos and other marks or protective notices.

6.2 Clients are only entitled to download content and to print content if a download or print option is available as a functionality on the Platform (e.g. by means of a download button).

Clients shall receive a non-exclusive right of use for an unlimited period for their own, non-commercial use of the content duly downloaded or printed out by them. In all other respects, all rights to the content shall remain with the original rights holder (Cherrydeck, Creatives or a third party).

6.3 The mandatory statutory rights (including reproduction for private and other own use according to § 53 UrhG) remain unaffected.

6.4 The granting of the rights of use is conditional upon compliance with these General Terms and Conditions. In the event of a breach of these General Terms and Conditions by the Client, rights of use to the Platform and the Services including its content shall automatically expire. Cherrydeck may, at its own discretion and without prior notice, block a Client's access to this Platform, including all functions and content, in whole or in part, if there are reasons to believe that the Client violates the General Terms and Conditions or causes damage through his use of the Platform and Services, including its content.

7. Prohibited Activities

7.1 Clients are prohibited from any activities on or in connection with the Platform and/or Services that violate applicable law, infringe the rights of third parties or violate the principles of the protection of minors.

7.2 Furthermore, regardless of any violation of the law, Clients are also prohibited from the following activities when communicating with Creatives:

  • the distribution of viruses, Trojans and other malicious files;
  • the sending of junk or spam e-mails and chain letters;
  • the dissemination of lewd, offensive, sexually oriented, obscene or defamatory communication, as well as communication that is suitable to promote or support racism, fanaticism, hatred, physical violence or illegal acts (explicitly or implicitly in each case);
  • harassing other users of the Platform, e.g. by contacting them personally several times without or contrary to the reaction of the other User, as well as encouraging or supporting such harassment;
  • requesting other users of the Platform to disclose passwords or personal data for commercial or illegal purposes;
  • the distribution and/or public reproduction of content available on the Platform and not owed by the respective Client, unless the Client is expressly permitted to do so by the respective author or is expressly made available as a Service of the Platform;
  • contacting users in bulk with the goal of recruiting them for a specific job through a competitor Platform, and/or poaching them for a similar platform that competes with the cherrydeck.com.

7.3 In the event of a culpable breach of the provisions contained in this paragraph 7.2, the Client shall be obliged to pay a contractual penalty to be determined by Cherrydeck at its reasonable discretion, the amount of cherrydeck.com's own acquisition spend.

7.4 In addition, any use of the Platform that negatively affects the Platform itself or websites connected to it, or software accessed through the Platform, is prohibited.

7.5 Clients may not modify, adapt, translate, create derivative works from, reverse engineer, disassemble or otherwise attempt to derive the source code of the Platform. Legal rights remain unaffected, in particular the User's right to decompile the Platform in order to obtain the information necessary to establish its interoperability with other programs, unless Cherrydeck makes such information available to the Client on reasonable terms. The Client is not permitted to decompile the Platform for further purposes.

7.6 If the Client becomes aware of any illegal, abusive, non-contractual or otherwise unauthorized use of the Platform, the User must contact Cherrydeck at team(at)Cherrydeck.com. Cherrydeck will then investigate the matter and, if necessary take appropriate action.

7.7 If there is a suspicion of illegal or punishable actions, Cherrydeck is entitled and, if necessary, also obliged to check the activities of the Client concerned and, if necessary, to take appropriate legal steps. This may also include forwarding the facts of the case to the public prosecutor's office.

8. Use of membership, Fees and Payment Terms

8.1 A basic access on Cherrydeck is free of charge. A basic access only includes the creation of a Client profile of the Platform to receive portfolios of Creatives and to find Creatives for a job the Client or the customer of Client places via the Platform and manage the contacts found via the Platform.

8.2 The Client has the option to choose a full membership subject to a fee, which opens up additional features and services. The provision of the membership on the Cherrydeck website constitutes a binding offer to conclude a contract. The Client makes a binding declaration of acceptance by selecting the "Subscribe" button and entering the Client's billing data such as credit card details or similar, and actively selecting to proceed in the checkout. The contract is concluded immediately by clicking on the Checkout-Button. The fee is due for payment upon effectiveness of the contract or at the beginning of each renewal term (see clause 9.3) and is billed according to the payment method selected by the Client.

8.3 Regardless of whether the Client has chosen the basic access or a full membership, Cherrydeck will always receive a service fee from the Client in the amount of at least EUR 175 for the setup and management of a briefing. Cherrydeck and the Client can agree on a deviating service fee in individual cases. The service fee is due for payment after the briefing has been published to cherrdeck.com.

If the Client acquires rights to use to photos via the Platform the Client concludes a contract with a Creative. Cherrydeck is not a party to this contract and is not obliged to fulfil any obligations under such a contract.

8.4 All fees stated are exclusive of the applicable statutory value-added tax.

Additional charges may occur if payment collection from a Client payment method fails. These payments may be collected by third party services, after at least two written warnings.

8.5 The use of the Platform itself is free of charge. Excluded from this are the usual costs for the Internet connection, over which Cherrydeck has no control.

8.6 Clients are only permitted to offset counterclaims that are undisputed or have been legally established. Clients may only assert a right of retention if it is based on the same contractual relationship.

9. Term and Termination

9.1 Cherrydeck may discontinue the operation of the Platform following prior notice. In this case Cherrydeck shall reimburse the Client on a pro rata basis for any fees in connection with the full membership paid in advance.

9.2 The basic access runs for an unspecified period of time. The usage of the Platform can be terminated by the User at any time without notice and cause by deleting the Client's profile.

9.3 A membership runs for the selected payment period, i.e. three months or one year, ("Term") and is automatically renewed for the selected payment period, unless the Client terminates his/her membership in writing (e-mail is sufficient) with a notice period of 4 weeks to the end of the Term or the respective renewal term. A refund of fees already paid for the full membership will not be made. After termination of the membership by the Client, the Client shall retain the basic access until its termination, but the additional features and services of the terminated full membership shall cease to apply.

9.4 The right to extraordinary termination remains unaffected. A good cause for an extraordinary termination by Cherrydeck exists in particular if the Client has violated or circumvented the regulations in clauses 3, 6, 7 and 8.

9.5 Cherrydeck can temporarily block Clients and prevent them from placing further content for as long as the User in question is violating the provisions of the general terms and conditions, for as long as the User cannot be reached at the address provided, or for as long as certain facts support provide suspicion of abuse of the Services, especially those regarding copyright violations and the prohibited actions as described in clause 7.

10. Privacy

10.1 One of Cherrydeck's quality standards is to handle the Clients' personal data (hereinafter referred to as " Personal Data ") responsibly. The Personal Data resulting from the registration on the Platform as well as from the use of the available Services are therefore only collected, stored and processed by Cherrydeck insofar as this is necessary for the contractual provision of Services and is permitted by legal regulations or ordered by the legislator. Cherrydeck shall treat the Client's Personal Data confidentially and in accordance with the provisions of the applicable data protection law. The privacy policy provides more detailed information about the collection, processing and use of personal data on or in connection with the Platform.

10.2 The Platform offers Clients the opportunity to transmit their personal data to Creatives in part or in full. Clients transmit this data at their own risk.

11. Limitation of Liability

Limitation of liability for the basic access and other services/content free of charge

11.1 In the event that the Client incurs damage as a result of using the basic access and other services provided free of charge on the Platform (including the retrieval of free content), Cherrydeck shall only be liable to the extent that the Client's damage has arisen as a result of the contractual use of the basic access, free content and/or services, and only in the event of intent (including fraudulent intent (Arglist)) and gross negligence on the part of Cherrydeck.

Limitation of Liability for memberships and other fee-based services/content

11.2 Cherrydeck shall be liable to the Clients without limitation in the event of intent or gross negligence for all damages caused by Cherrydeck and its legal representatives or vicarious agents.

11.3 In case of slight negligence, Cherrydeck shall be liable without limitation in the event of injury to life, body or health.

11.4 The statutory provisions in relation to product liability shall remain unaffected.

11.5 Apart from this, in case of slight negligence Cherrydeck shall only be liable if an obligation has been breached which is essential to fulfill this contract's purpose ("Cardinal Obligation"). The term Cardinal Obligation represents all obligations which must be fulfilled to facilitate the implementation of the contract/Services and upon whose fulfillment the Clients regularly rely. In the event of a breach of a Cardinal Obligation, liability is limited to typically foreseeable damages at the time of the conclusion of the contract. Para.11.2, 11.3 and 11.4 remain unaffected.

11.6 The Client must exempt Cherrydeck, its managers, officers and all of the companies associated with it from losses, damages, and claims of third parties that have arisen from the Client's breach of clauses 3.3- 3.6, 6.3 and 7.

12. Final Provisions

12.1 The procedural and substantive law of the Federal Republic of Germany excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and German international private law, applies to these General Terms and Conditions and the legal relationship between Cherrydeck and the Clients.

12.2 The place of jurisdiction for disputes arising from the legal relationship between the parties is Hamburg, Germany, insofar as such an agreement on the place of jurisdiction is permissible.

12.3 Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the legal validity of the remaining provisions. 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 purpose intended by the parties.

Last updated: March 2021