1.- OBJECT.
The COLLABORATOR will proceed to provide an advertising and promotion service for BLUE BANANA products and brands, in the context of the Standard Affiliate Commission program.
This service will consist in the creation and exhibition of promotional content of BLUE BANANA products in its social networks and other digital media in which it usually operates, with the provision of a personalized link to a BLUE BANANA URL based on the COLLABORATOR´s profile, through which these final consumers will be able to make purchases of BLUE BANANA products; as well as a discount code, wich the COLLABORATOR can offer to their followers and general public.
The advertising and promotional material to be developed by the COLLABORATOR will be the one that it considers on its own discretion, within the limitations that BLUE BANANA establishes regarding the image of the Brand, legal obligations and other the considerations of this agreement.
The management of the means will be those of the COLLABORATOR, having no obligation BLUE BANANA in this regard. The COLLABORATOR assumes the business risk of this provision of services, disposing of the means of production of services, disposing those for itself, with a variable remuneration system directly proportional to the number of impacts generated by this advertising and promotional activity, as will be developed in this agreement, not guaranteeing any amount for the provision service.
Both parties expressly state that this relationship is totally unrelated to any labor nature, sharing the business venture, and without any dependency in terms of material to be developed, days, vacations or any other constitutive element of the employment relationship.
Likewise, the parties agree that the character and nature of this commercial relationship falls within the scope of the General Advertising Spanish Law 34/1988, constituting itself as an atypical contract that intertwines aspects of the advertising broadcast contract (in the sense of offering the advertising use of available space or time units and developing the necessary technical activity to achieve the advertising result); and the advertising creation contract (given that the specific promotional content will be developed by the COLLABORATOR according to its own criteria within the usual scope of its work, therefore part of the assignment consists of devising and preparing an advertising campaign project, a part of it or any other advertising element).
2.- PRICE
The parties agree on a consideration that will be variable, depending on several factors, basically, the number of impacts generated by their promotional activity, and the level of effectiveness of the advertising content.
Thus, these two elements described will be determined based on the sales of BLUE BANANA products that benefit from the promotional discount code, or are made from the personalized URL, which will be assigned to the COLLABORATOR for its offer in its advertising content.
The final consideration of the COLLABORATOR will consist of the liquidation of a commission of 10% of the total volume of sales made using the promotional code and/or the personalized URL. The commission will be applied to the effective sale price, VAT included, and contemplating the discounts applied. For these purposes, the shipping costs are not considered the effective price, so they will be deducted for the calculation of the commission.
The accrual of the commission will not be made at the same moment of the sale associated with it, given that the operations that are reversed by the consumer will not generate any commission. Therefore, the parties agree that the effective accrual of the commissions will occur once the product return period with which BLUE BANANA works has passed, that is, 30 calendar days after the sale.
BLUE BANANA makes the "***********" app available to the COLLABORATOR, through which the parties will view and control the transactions flow carried out under the COLLABORATOR's personalized promotional code, the accrual of commissions and billing.
3.- FORM OF PAYMENT.
BLUE BANANA will pay the COLLABORATOR the amounts resulting from the application of the aforementioned method, once an invoice is issued for that purpose.
In relation to the billing procedure, the parties agree:
a. BLUE BANANA will make the corresponding payments of accrued commissions on January 2, April 2, July 2 and October 2 of the corresponding year; In the event that the payment accrual day falls on a Spanish holiday, payment will be made on the first following business day;
b. To do this, the COLLABORATOR must have sent the relevant invoice through the app **** , before the day ** of the previous month.
c. Each of the invoices will include the commissions that appear in the app corresponding to the 3 months prior to the generation of the invoice, that is:
i. Payment of January 2: the invoice will include the commissions accrued in the months of September, October and November of the previous year, and must be sent before the ** December.
ii. Payment on April 2: the invoice will include the commissions accrued in the months of December, January and February, and must be sent before the ** March.
iii. Payment of July 2: the invoice will include the commissions accrued in the months of March, April and May, and must be sent before the ** June.
IV. Payment of October 2: the invoice will include the commissions accrued in the months of June, July and August, and must be sent before the ** September.
The commissions to be paid will be those that appear thus reflected in the app; any discrepancy about them must be communicated by the COLLABORATOR to BLUE BANANA as soon as possible through the channels indicated in the app.
The COLLABORATOR declares to be able to issue invoices, without infringing Spanish tax regulations or those of any third country applicable to their activity, acknowledging in any case that, before the tax administration of both Spain and their State of residence, the COLLABORATOR is the only taxpayer and responsible for the corresponding obligations.
In particular, the COLLABORATOR undertakes to provide BLUE BANANA with all the data that is fiscally required for billing processing, among others, their full name/company name, tax identification number, tax identification number of the intra-community operator, or other applicable fiscal domicile, taxes and applicable tax rate in the place of residence, as well as the withholdings that may apply. In the event that the services are exempt or not subject to Value Added Tax or other similar tax, it must expressly indicate.
In the same way, it is obliged to correctly and faithfully comply with its accounting, tax and Social Security obligations in accordance with the applicable regulations, and BLUE BANANA may demand the display of proof of these compliances if it is pertinent. The COLLABORATOR specifically exempts BLUE BANANA from any breach caused in this regard, constituting cause for termination of the contract.
4- CONTENT CONTROL
The parties agree that the exact content of the promotional activities to be carried out by the COLLABORATOR will be the one determined by the COLLABORATOR, taking into account that BLUE BANANA has previously selected the same based on its work as content creator, holding a profile that is understood to be adequate for the promotion of the brand.
Notwithstanding the foregoing, the association of the brand image to the COLLABORATOR's activity requires the establishment of a line of values associated with the brand that must be scrupulously respected by the COLLABORATOR in the development of its promotional activity, and which are defined in the BLUE BANANA Charter of Principles, incorporated as part of this contract as Annex No. 1.
5.-COLLABORATOR'S OBLIGATIONS
The COLLABORATOR undertakes to comply with the provision of the service with the utmost diligence and due professionalism for the common business success, and specifically undertakes to:
a) Comply with the purpose of this contract with the utmost diligence and professionalism, in a joint venture with BLUE BANANA aimed at greater business success for both parties.
b) Comply with tax and social security obligations; with the provisions contained in the Spanish General Advertising Law 34/1988, and the regulations that are applicable in the country where the activity is carried out
c) Refrain from using the BLUE BANANA brand and any of those derived from this commercial relationship outside of the provisions of this agreement.
d) Refrain from including or transmitting in the promotional content, in any way, illicit content and/or content that may be harmful to the rights of third parties and of BLUE BANANA itself.
e) Refrain from advertising disparaging the content of BLUE BANANA, in any field.
f) Ensure that the sound and visual elements used in the creation of the material are not protected by intellectual or industrial property rights, or, if so, obtain the aforementioned authorizations.
g) Assume the incidental and instrumental modifications that BLUE BANANA establishes in relation to the Standard Affiliate Commission, provided that they do not affect essential elements of this agreement, requiring in this case the express acceptance of the COLLABORATOR, particularly regarding the object and price of this agreement.
i) Know and respect the Spanish CODE OF CONDUCT ON THE USE OF INFLUENCERS IN ADVERTISING, which is attached as Annex No. 2, forming an integral part of this contract.
i) ………………………….
The COLLABORATOR authorizes BLUE BANANA to use his personal image, as well as the use of the material, in advertising and promotion work in any field, without said use generating any consideration beyond that agreed in the fourth clause.
This transfer described in the preceding paragraph is carried out indefinitely or, failing that, for the maximum time allowed by applicable law, and in an unlimited geographical area, being able to make use of that material even once this agreement has been terminated.
6.- OBLIGATIONS OF BLUE BANANA
BLUE BANANA hereby undertakes to maintain a duty of collaboration and business loyalty with the COLLABORATOR, for the best purpose of the project and the common business success of the parties.
BLUE BANANA will not guarantee the specific content of the catalog of products offered to the public, being the object of sales related to this contract all BLUE BANANA brand products that can be purchased, at any time and at the discretion of BLUE BANANA, with the code promotional discount available to the COLLABORATOR.
BLUE BANANA is also obliged to maintain and constantly update the app, through which the parties will account for and display the set of sales operations carried out under this agreement, the commissions earned by them, the invoicing between the parties, and other incidental issues that are relevant in the contractual relationship.
BLUE BANANA, in turn, will provide the appropriate information for the training of the COLLABORATOR regarding the BLUE BANANA products on which it will carry out its promotional activity; this information may include making brand products available to the COLLABORATOR, at the discretion of BLUE BANANA.
7.- INTELLECTUAL PROPERTY.
BLUE BANANA recognizes the moral rights of intellectual/industrial property of the COLLABORATOR over the result of their work.
The COLLABORATOR exclusively and universally assigns to BLUE BANANA, which accepts them, its rights of reproduction, exploitation and marketing regarding the promotional material prepared under the protection of this contract.
The transfer of rights over the MATERIAL is total and absolute in terms of application delimitation, both in the form of reproduction or exploitation, as geographical, as temporary. In this regard, BLUE BANANA may reproduce the material for advertising and/or promotional purposes.
On the other hand, BLUE BANANA grants through this agreement the license and power to the COLLABORATOR to make use of the image and brand BLUE BANANA, together with all its associated elements, in an unlimited manner within the limits and purpose of this agreement.
8.- DURATION AND TERMINATION OF THE CONTRACT
The Contract is agreed for a duration of ONE year, with successive extensions for the same period as long as neither of the parties expressly expresses their wish not to renew at least one month before the expiration date of the term.
However, it may be resolved by the will of either Party when there is a serious breach of the agreed obligations. In any case, the Party that intends to terminate this Agreement alleging non-compliance by the counterparty, must require it to comply with the obligation in a reliable manner, granting a period of 10 calendar days to the non-compliant Party so that it can correct said non-compliance. Once said period has elapsed without the breaches having been corrected, the injured party may exercise the resolution power.
In the event that the breaches are impossible to rectify, the injured party may directly exercise the decision-making power, without the need to previously send the aforementioned requirement.
Once the contractual relationship between the parties has ended, BLUE BANANA will cease to apply the promotional discount code, ceasing all rights and obligations contemplated in this agreement, without prejudice to those that have been established to deploy its effectiveness once the present agreement has resulted. contract.
In turn, the COLLABORATOR may not use for their own benefit, under any form of exploitation, the developed material provided that it includes directly or indirectly, in writing or verbally, graphic material or any other analogous material that contains any type of content owned by BLUE BANANA.
Regardless of the duration and termination of this agreement, the transfers of rights made in favor of Blue Banana over the promotional material developed by the COLLABORATOR are made indefinitely or, failing that, for the maximum time allowed by applicable law, and in unlimited geographical scope, being able to make use of that material even once this agreement has been terminated.
9.- RESPONSIBILITY OF THE PARTIES
The COLLABORATOR will be responsible for the losses or damages suffered directly by BLUE BANANA, or indirectly by its employees or clients, as a result of its negligent action in the scope of development of this contract.
Thus, this responsibility includes as many obligations as have been defined in this agreement, and as many contractual or non-contractual responsibilities arising from the action or omission of the COLLABORATOR.
Specifically, the bankruptcy of the BLUE BANANA rules, defined in Annex 1, is taken into consideration, as well as the breach of the CODE OF CONDUCT ON THE USE OF INFLUENCERS IN ADVERTISING included as Annex 2.
For its part, BLUE BANANA will be responsible for the possible effective and patrimonial responsibilities that directly affect the COLLABORATOR and are the cause or result of poor service or defective fulfillment of sales associated with the promotional code associated with the COLLABORATOR.
This distribution of responsibilities will imply the right of the injured party to require the party causing the liability to respond to it, leaving it unharmed before any claim, all without prejudice to the consequences that may arise from this agreement, and how many damages may be claimed by the defaulting party.
10.- CONFIDENTIALITY
The COLLABORATOR expressly undertakes, both during the term of the contract and after its termination, not to disseminate, transmit, or reveal to third parties any confidential information of BLUE BANANA, to which they have access as a result of the performance of its activity, nor to use such information in its own interest or that of third parties.
"Confidential Information" means all information, oral or written, communicated by one party to the other for the purpose of this collaboration, including, among others, information of a scientific, technical, financial, legal, fiscal and commercial nature, models and business strategies, know-how, names of clients and partners, projects and operations of any nature proposed or in the study phase, reports, market projections and data, together with analyzes and working documents, compilations, comparisons, studies and in general, all the information that the parties transmit either before or after the signing of this Agreement.
The violation of this commitment will be considered as justified cause for the termination of this contract, agreeing to establish a penalty of not less than 3,000 euros for this cause; In the event of breach of the commitment assumed and regardless of the termination of the contract, BLUE BANANA reserves the right to claim compensation for damages that may be caused as a result of the breach of the duty of confidentiality and professional secrecy agreed in this clause.
In relation to the content of this agreement, it will also be considered confidential in relation to the exact content of its clauses, but not its existence and purpose.
11.- DATA PROTECTION
Both parties undertake to comply with all regulations related to data protection and, specifically, with Spanish Law 3/2018 on Data Protection, as well as with the General Data Protection Regulation (REGULATION 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of April 27, 2016).
BLUE BANANA will use the COLLABORATOR's personal data in strict accordance with the purposes contained in this agreement; for this, they will be included in the file for which they are responsible, the COLLABORATOR being the owner of the ARCO rights (Access, Rectification, Cancellation, Opposition).
The COLLABORATOR's data may be transferred to Treatment Managers, for the purposes of complying with legal obligations of any kind that may apply.
The maintenance of the data held by BLUE BANANA will be adapted to the status of the contractual relationship at all times; notwithstanding the foregoing, and given the lifetime nature of the transfer of intellectual/industrial property rights, BLUE BANANA will maintain in its possession the necessary data to assert the aforementioned exploitation rights.
12.- COMPETENT JURISDICTION AND APPLICABLE LAW
For any questions or differences that may arise in relation to this contract, the parties agree to submit it to the Courts and Tribunals of the city of Madrid.
This contract has a commercial nature and will be governed by its own clauses, and in what is not provided in them, by Spanish Laws.
13.- GENERALITIES
This contract annuls and replaces any previous contract or agreement between the parties for the same purpose and may only be modified by a new agreement signed by both parties.
Past and future agreements, signed between the parties, which do not oppose or contradict this agreement, will continue to display their full validity as long as the parties do not state otherwise.
If any of the clauses of this contract is declared null or inapplicable, said clause will be considered excluded from the contract, without implying its nullity. In this case, the parties will do everything in their power to find an equivalent solution that is valid and that duly reflects their intentions.
Any change of address of one of the parties must be notified to the other immediately and by a means that guarantees the reception of the message.
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