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The
following General Terms and Conditions
are intended for (i) Web site owners
(hereafter, "Affiliates") who
wish to participate as Affiliates in the
Affiliate Program provided by element 5
(governed by II. and IV. in these
General Terms and Conditions) on the
basis of these General Terms and
Conditions and also for (ii) Software
Publishers who distribute their software
products as downloads using the services
of element 5 AG, Vogelsanger Strasse 78,
50823 Cologne, Germany and its
subsidiaries (together hereafter,
"element 5") and who wish to
make use of the additional service
provided by element 5 (hereafter,
"Affiliate Management",
governed under III. and IV. in these
General Terms and Conditions) for
integration of the Affiliate Program
provided by element 5.
I.
Object of the Affiliate Program/
Affiliate Management Program for
Software Publishers
The
object of the Affiliate Program provided
by element 5 (hereafter,
"Program") is to publish
electronic advertisements on the Web
site of the Affiliate for selected
software products offered by element 5
Software Publishers. Instead of fixed
compensation, the Affiliate receives
result-dependent Advertising Cost
Compensation (also known in the element
5 Control Panel as
"Commission") in exchange for
publishing the advertisements. The
Advertising Cost Compensation depends on
the actual sales generated by end users
referred via the electronic
advertisement (the Affiliate's link).
Within
the context of sales processed from this
Program, element 5 acts (to the end
user) as a service provider for Software
Publisher and handles the sales process
by proxy of Software Publisher in
accordance with underlying share-it!
Developer Agreement. element 5 receives
an additional service fee from the
participating Publishers for this
Affiliate Management.
Under the
terms of this Affiliate Management,
"Software Publisher's Control
Panel" shall mean the password
protected secure interface on element
5's Web servers that allows the Software
Publisher to gain access to Sales data
and End User data through a secure
online connection and change Software
Publisher related settings, e.g. the
commission of the Affiliate and
activation and deactivation of the
Affiliate.
"Affiliate's
Control Panel" shall mean the
password protected secure interface on
element 5's Web servers that allows the
Affiliate to (i) gain access to referred
sales through a secure online connection
and (ii) change Affiliate related
settings, e.g. input or alteration of
personal data, definition of default
style within the context of the given
technical limitations, and requests for
new partnerships with Software
Publishers or termination of existing
partnerships.
II.
Affiliate Program
§ 1
Affiliate Participation
Participation
of an individual Affiliate in the
Program is dependent on activation by
the Software Publisher. Once the
Affiliate has registered, element 5 will
send an e-mail to Software Publisher
with a request to activate the
Affiliate. Once the Affiliate is
activated by the Software Publisher, the
Affiliate is considered to be a
participant in this program and is bound
by these General Terms and Conditions.
§ 2
Products under the Agreement
(1) The
Products under the Agreement are
software products designated by the
respective Software Publisher for this
purpose and which can be selected by the
Affiliate from a product catalog in the
Affiliate Control Panel.
(2) Following initial activation of a
product under the agreement, the
Affiliate has the opportunity to choose
further software products (including
those from other Software Publishers),
found in the Affiliate's Control Panel,
and offer them on the Affiliate's Web
site under these General Terms and
Conditions. However, the offering of
these new products is dependent on the
Software Publisher activating the
Affiliate for the respective software.
§ 3
Control Panel
(1) After
successfully completing the registration
process for participation in the
Program, the Affiliate will be sent a
user ID and a password to access to the
"Affiliate Control Panel".
With the user ID and password, the
"Affiliate Control Panel"
provides the Affiliate access, via a
secure online connection, to a secure
area on element 5's Web server so that
the Affiliate may, at any time, view the
number of software sales the Affiliate
has referred, as well as change other
settings.
(2) When using the user ID and password,
the Affiliate shall observe the
following obligations and precautions: (i)
Only the Affiliate may use the user ID
and password. (ii) The user ID and
password shall be kept strictly
confidential. The Affiliate shall take
due care to ensure that no unauthorized
parties learn the user ID and/or
password. (iii) If the Affiliate loses
its user ID and/or password or if there
is a possibility that an unauthorized
party has learned the user ID and/or
password, the Affiliate shall
immediately report this to element 5,
which can then block access by the
Affiliate to the Control Panel. All
actions carried out with the user ID and
password will be attributed to the
Affiliate.
§ 4
Integration of the Link
(1) The
Affiliate shall integrate the product
under the agreement using the
appropriate link on its Web site; the
link points to the order form operated
by element 5. This link is generated by
a link generator for the respective
product under the agreement. The link
generator is located in the secure area
of element 5's Web site in the
"Affiliate Control Panel". The
link that is generated contains an
individualized affiliate user ID by
means of which any sales can be
attributed to the Affiliate. Proper
technical integration of the link is the
responsibility of the Affiliate. If the
links do not function, no Advertising
Cost Compensation will be paid.
(2) The Affiliate shall indicate on its
Web site that (i) the Affiliate is
acting as an independent partner of the
respective Software Publisher by
participation in the Affiliate Program
provided by element 5 and (ii) The
Software Publisher is the seller of the
product and the payment process is
administered by element 5.
(3) The Affiliate shall produce a brief
description for each activated product
on its Web site. The Affiliate is
responsible for the content, the style
and the layout of this information. The
Software Publisher can provide the
Affiliate with graphics and text in an
electronic format for use in describing
the product, which the Affiliate shall
use for the purpose of advertising the
Products under the Agreement and links
according to the instructions of the
Software Publisher. The Affiliate should
be aware that the product prices and
availability may change at any time. It
is not recommended that the price be
listed on the Web site of the Affiliate.
Maintenance of these product prices is
possible only on the Web sites of the
Software Publisher and the Publisher's
corresponding site operated by element
5.
§ 5
Order Processing
(1)
element 5 shall be responsible for the
entire order processing for the referred
end user according to the terms and
conditions of the underlying share-it!
Developer Agreement between the Software
Publisher and element 5. element 5 shall
provide the order forms for the order
processing on its Web server; receive
payments from the referred end users and
forward these payments, less the agreed
Advertising Cost Compensation, the
service fees and relevant value added
tax (VAT) to the Software Publisher;
handle refunds and returns according to
the provisions of the underlying
share-it! Developer Agreement; and
provide end user service relating to the
administration of the order. The
Software Publisher shall provide
technical end-user service.
(2) element 5 reserves the right to
reject queries and orders which do not
meet its requirements; including, in
particular, orders by referred end users
who do not meet credit requirements, who
do not authorize direct debiting from
their bank account, or who do not
present a valid credit card.
(3) An agreement by the Software
Publisher with the referred end user
does not exist until either a written or
electronic order confirmation arrives
from element 5 in the name of the
Software Publisher or when element 5
begins to fulfill the agreement in the
name of the Software Publisher.
Typographical, printing and computation
errors on the Web site of the Affiliate
shall be charged to said Affiliate.
§ 6
Advertising Cost Compensation
(1)
element 5 will pay Affiliate its
advertising costs (including Vat, if
any, on presentation of a valid VAT
invoice) if an end user arrives via the
link integrated in Affiliate's Web site
at the order page hosted by element 5
for the respective Software Publisher's
Product under this Agreement and end
user uses the automatic ordering system
that carries out the registration and
payment processing, so that the
Affiliate's link is deemed to be
directly causative for the entry of the
End User into the agreement with the
Software Publisher and End User's
payment, proving that all requirements
are irrevocably met ("agreements
arising in a qualified manner").
Affiliate is only eligible to earn the
Advertising Cost Compensation on sales
occurring during the term of this
Agreement and fees earned up to the date
termination will remain payable only if
the related orders are not cancelled or
returned.
(2) Insofar as the referred end user
accepts cookies when clicking on
Affiliate's link, proceeds from orders
will be taken into account which do
arise within the lifespan of the
cookie(s) used and/ or possibly within
the lifespan of a special action of the
Software Publisher via integrated link.
(3) element 5 shall record and compute
on a monthly basis the amount of said
Advertising Cost Compensation for the
Affiliate.
(4) The computation basis for
determining the value of the Advertising
Cost Compensation is calculated by the
gross sales price (including taxes,
shipping and handling, etc.) actually
invoiced to the referred end user. The
percentage of the respective Advertising
Cost Compensation shall be stipulated by
the Software Publisher, but shall not
exceed 50% of the effective gross sales
price of the software.
(5) The Advertising Cost Compensation
shall not be paid if and insofar as it
is determined that the end user will not
meet its payment obligations or will
meet them only partially, or if for any
other reason the invoice to the end user
was cancelled (e.g. in cases where a
charge back of a credit card charge, a
debit advice or other return or refund
of the software product occurs). If the
Advertising Cost Compensation was
previously paid by element 5, it can be
offset or invoiced to Affiliate at
element 5's own discretion.
(6) The payment of the Advertising Cost
Compensation shall occur monthly insofar
as the sum due exceeds a value of 100
EUR / 100 USD. If this is not the case,
the sum due can be retained until a
total value of at least 100 EUR / 100
USD is reached, at the latest, upon
termination of the Affiliate's
participation in the Program.
(7) The payment can be made by wire
transfer, Direct Deposit (US only) or
check, as chosen by the Affiliate.
(8) The invoicing is deemed to be
approved if the Affiliate does not
object in writing, including a statement
of reasons, within four weeks.
III.
Affiliate Management for Software
Publishers
§ 1
Participation by the Software Publisher
(1)
Software Publisher's participation in
Affiliate Management indicates that the
Software Publisher agrees to these
General Terms and Conditions, and that
the Software Publisher shall integrate
the Affiliate Program into the Web site
using a corresponding link.
(2) To generate revenue through this
Program by means of sales referred by
the Affiliate, the Affiliate, after
completion of registration, must be
activated by the Software Publisher in
the Control Panel. The Software
Publisher will be informed of the
Affiliate's registration per e-mail with
a request for the Affiliate's activation
from element 5.
(3) By configuring the settings in the
Control Panel, the Software Publisher
determines the amount of the
success-based Advertising Cost
Compensation. If the Publisher does not
configure any settings, then it will
accept the default settings proposed by
element 5 when activating the Affiliate.
Prior to making changes in the Control
Panel regarding the amount of the
Advertising Cost Compensation, written
notification must be given to element 5
and the Affiliate.
§ 2
Integration of the link
(1)
element 5 shall make a hyperlink
available to the Software Publisher that
links to the appropriate registration
form for the Affiliate Program. The link
can be accessed in the secure
"Software Publisher Control
Panel" on element 5's Web site
under "Affiliate Management".
(2) Every Affiliate must complete the
registration form once prior to
participating in the Program and agree
to these General Terms and Conditions by
checking the Online checkbox.
Afterwards, the Affiliate can also
advertise other Products under this
Agreement (see above § 3) after
activation by the respective Software
Publisher.
§ 3
element 5's Service Fee
For each
sale administered by element 5 of the
Software under this Agreement, element 5
shall receive an additional service fee
of 2% of the gross sales price
(including taxes, shipping and handling,
etc.) as well as the Advertising Cost
Compensation defined in II. § 6 (4) and
in addition to VAT or sales tax (where
applicable). element 5 will pay the
Affiliate the Advertising Cost
Compensation as defined in II. § 6 .
Further invoicing terms are obtained
from the existing business relationship,
defined in the respective share-it!
Developer Agreement between Software
Publisher and element 5.
IV.
General terms
§ 1
License
Upon
activation of the Affiliate, the
Software Publisher grants the Affiliate
a non-exclusive, revocable right to use
provided advertising material, notices
and all further presentations (insofar
as available - also known hereafter as
"Material") only for the
purpose of designating its Web site as a
"partner Web site" and
presenting the designated advertising
Material. Under no circumstances may the
transferred Material be edited or
modified without prior written
permission of the Software Publisher.
element 5 and the Software Publisher
retain all rights with regard to their
logos, their trade name or their
trademarks and other commercial
protection rights. The Software
Publisher and element 5 are authorized
to revoke the license granted to the
Affiliate at any time by written notice.
§ 2
Changes to these provisions
element 5
RESERVES THE RIGHT TO MODIFY AND TO
SUPPLEMENT THESE GENERAL TERMS AND
CONDITIONS AT ANY TIME. THE CURRENT
VERSION WILL BE MAINTAINED FOR VIEWING
AS A HYPERLINK ON element 5's WEB SITE
IN THE CONTROL PANEL. MOREOVER, element
5 WILL ANNOUNNOUNCE ANY CHANGES TO THESE
TERMS VIA E-MAIL. WHITHIN 14 DAYS OF THE
ANNOUNCEMENT OF CHANGED PARTICIPATION
TERMS, AFFILIATE AND SOFTWARE PUBLISHER
MAY OBJECT TO SUCH CHANGES. IF NO
OBJECTION IS RECEIVED DURING THIS TIME,
THE PARTICIPANT IS DEEMED TO HAVE
ACCEPTED THE CHANGES AND THEY WILL
BECOME PART OF THE EXISTING RELATIONS
UNDER THE AGREEMENT.
§ 3
Correspondence
Correspondence
shall take place preferably via e-mail,
which is accorded the same status as
postal mail. Qualifying dates are always
agreed as "Receipt by
Recipient", unless otherwise noted.
For e-mail, the receipt of the message
on the destination mail server is deemed
to be the time of reception.
§ 4
Independence of Relations under the
Agreement
The
parties to the contract shall operate
their Web sites independently of one
another and are solely responsible for
the content, technology used, and
design. This agreement may not be
construed as establishing between the
parties a company or an association, nor
does it establish an employment
relationship or a commercial agent
agreement. The parties to the agreement
are not authorized, with the exception
of element 5 for the Software Publisher,
to act in the name of the other party
and/or to accept offers for the Software
Publisher or make statements.
§ 5
Guarantee by the Party to the Agreement
for its Web site
(1) The
Affiliate shall be responsible for the
entire content of its Web site. The
Affiliate guarantees in particular that
(i) It will integrate advertising
Material according to the provisions and
instructions of the Software Publisher
into that Affiliate's Web site insofar
as said Material was transferred to the
Affiliate; (ii) The material used the
Affiliate's Web site will not contain
any representations of violence,
sexually related contents or
discriminatory statements or
representations with regard to race,
sex, religion, nationality, handicap,
sexual preference and orientation, or
age, nor will said Material be unlawful
in any way; (iii) The Material used on
the Affiliate's homepage will not
infringe upon the rights of third
parties, particularly patents,
copyrights, trademarks or other
commercial protection rights as well as
general personality rights and cannot be
mistaken for the products of the
Software Publisher and/or element 5 or a
Web site operated by the Software
Publisher and/or element 5; (iv) It will
not send any e-mail without the express
consent of the receiver(s) (no spam
e-mails).
(2) The Affiliate shall guarantee the
above named properties of its Web sites
and will pay defense costs and indemnify
and keep fully indemnified the Software
Publisher and element 5, its
subsidiaries and its and their
directors, officers, employees and
agents upon demand from any and all
claims, demands, costs, liabilities,
losses, expenses, and damages (including
reasonable attorneys' fees, costs, and
expert witnesses' fees) arising out of
or in connection with any breach by
Affiliate of its warranty set out in
this clause.
§ 6
Limitation of liability
(1) The
parties exclude mutual liability for
slightly negligent violation of
obligations in connection with this
agreement, with the exception of § 16
and § 5 (3) of this agreement. This
includes in particular the liability
exclusion for lost profit, the loss of
data or interruption to or errors in the
operation of the Web site of the
Affiliate. The above liability exclusion
also applies to the personal liability
of employees, representatives and
persons employed to perform the
obligations of the parties to the
agreement. The limitation of liability
does not apply to claims arising through
initial incapacity or in case of
justifiable impossibility.
(2) Any possible product liability
claims are unaffected by the above
limitations. Insofar as element 5 or the
Software Publisher violates an essential
obligation under the agreement, the
obligation to pay restitution is limited
to the damages that typically arise.
(3) element 5 makes no guarantees in
regard to the Software Publisher's
software products offered via its Web
site. Moreover, element 5 does not
guarantee the Affiliate that the
operation of its Web sites will be
maintained without interruptions and
without errors. Liability is expressly
excluded for the consequences of such
interruptions or errors.
§ 7
Agreement period / Cancellation
The term
of this Agreement will begin upon
acceptance of Affiliate's Program
application and will end when terminated
by either party of this Agreement. This
Agreement is entered into for an
unlimited period of time. Either party
may cancel this Agreement at any time,
with or without supplying a reason,
through written notification or by
making suitable settings in the
respective Control Panel.
§ 8
Termination of the agreement
(1) When
the agreement ends, all usage rights of
the Affiliate and Software Publisher
accorded by this agreement with regard
to the provided logos or Web site
contents expire.
(2) Upon termination of the relationship
under this agreement, the Affiliate is
obligated to undertake all of the
technical measures necessary to delete
from its Web site all links that refer
to the Web sites of element 5 or to the
Software Publisher. The same applies
upon termination of Affiliate Management
for links of the Software Publisher that
were established in connection with the
participation in Affiliate Management on
its Web site.
(3) element 5 is authorized to retain
final payment for a reasonable time,
minimum for 30 days after the end of the
respective quarter, to ensure that the
correct amount is paid. Affiliate is
only eligible to earn the Advertising
Cost Compensation on sales of Software
Publishers Products occurring during the
term of this Agreement and fees earned
up to the date termination will remain
payable only if the related orders are
not cancelled or returned. If the
Advertising Cost Compensation was
previously paid by element 5, it can be
offset or invoiced to Affiliate at
element 5's own discretion.
§ 9
Final provisions
(1) Force
majeure
If a party is unable to fulfill its
obligations under the agreement for
reason of force majeure, it shall
immediately inform the other party
thereof and do everything in its power
to resume normal operations as quickly
as possible. In such case, the affected
party shall not be deemed to be in
breach of contract and cannot be held
liable.
(2) Provision for written form
Additional agreements, changes or
additions are valid only if element 5
has confirmed them in writing. The same
applies to the warranting of properties.
(3) Severability clause
If any provision of this agreement is or
becomes invalid, the validity of the
remaining provisions shall not be
affected. Insofar as a provision is
invalid, the parties will agree on a new
provision which comes as close as
possible to the intent of the invalid
provision and which is legally valid.
(4) Applicable law and jurisdiction Even
in case of agreements with foreign
(non-German) Software Publishers and
Affiliates, the law of the Federal
Republic of Germany applies. The place
of jurisdiction for all claims arising
in connection with this business
relationship is Cologne, Germany.
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