Advertiser Awin Access Affiliate Marketing Agreement

(A) Joining the Network:

(i)     By submitting an Application Form, or by accessing the Interface, the person named in the Application Form (the “Advertiser”), represented by the applicant, is offering to participate in the Network in accordance with the terms of the Application Form, this Affiliate Marketing Advertiser Awin Access Agreement and the Data Processing Addendum (“DPA”) found at https://www.awin.com/gb/legal/advertiser-dpa  (together, the “Agreement”).

(ii)    Acceptance of the application is subject to the sole discretion of AWIN AG, Otto-Ostrowski-Straße 1A, 10249, Berlin, Germany, incorporated in Germany with company number HRB 75459 B (the “Company”). Acceptance or rejection of the application will be notified to the proposed Advertiser by email.

(iii)   On acceptance of the application by the Company, the legally binding Agreement is entered into between the Advertiser and the Company.

(iv)   This Agreement prevails over any terms supplied by the Advertiser.

(v)    Any individual entering into this Agreement on behalf of an Advertiser warrants that he or she has full power and all necessary authority to bind that proposed Advertiser to the terms of this Agreement.

(vi)   All Fees and Commissions set out in the Agreement are payable by the Advertiser as service recipient and contracting entity.

 

1. DEFINITIONS

The following definitions and rules of interpretation apply in this Agreement:

“Action” means a Transaction, Lead, or other event (if agreed by parties) on which Commissions may be based under this Agreement;

“Advertiser Downtime” means any failure of the Tracking Code to properly record, amongst other things, web traffic and Actions as a result of the Advertiser's breach of clause 2.2.1 or 3.2.3;

“Advertiser Materials” means any trade marks, advertising content, images, text, video, data or other material provided by or on behalf of the Advertiser to the Company, a Participating Publisher or a Sub-publisher;

“Advertiser URLs” means, from time to time, any websites, apps or services of the Advertiser which are (i) set out in the Application Form or (ii) made subject of this Agreement in accordance with the Tracking Policy;

“Advertising Standards” means any applicable advertising law, regulations or standards, data laws relating to advertising (including the Children's Online Privacy Protection Act), any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice;

“Approved Lead” means (i) a Lead approved by the Advertiser in accordance with clause 5; or (ii) a Lead in respect of which the Validation Period has expired;

“Approved Transaction” means (i) a Transaction approved by the Advertiser in accordance with clause 5; or (ii) a Transaction in respect of which the Validation Period has expired;

“Bonus” means an ad hoc payment by the Advertiser to a Participating Publisher in return for a specific promotion or other marketing activity;

“Business Day” means a day other than a Saturday, Sunday or national public holiday in Berlin, Germany;

“Campaign” means a designated period for the provision of the Services during the Term;

“Commission” means a fee payable to the Publisher, calculated as a percentage of the Approved Transaction or approved Lead as set out in the Application Form.

“Confidential Information” means any information disclosed by or relating to a party, including: information arising during the term of this Agreement; information about a party’s business affairs; any reports generated by the use of the Interface, information about a party’s operations, products or trade secrets; information about a party’s technology (including any know-how and source code) and any derivatives of any part of any of them and which (i) is marked or identified as confidential; or (ii) would be regarded as confidential by a reasonable business person;

“Country” is the country set out in the Application Form in respect of which this Agreement is entered into;

“CPA” means a Commission charged per Approved Transaction;

“CPL” means a Commission charged per Approved Lead;

“Date Live” means the actual date of the Advertiser’s bona fide commercial launch on the Network (whether under this or a previous agreement between the Company and the Advertiser or its predecessors or assignors);

“Data Regulation" means any data protection, privacy or similar laws that apply to Personal Data Processed in connection with this Agreement, including the GDPR and any regulations implementing the GDPR or ePrivacy;

“ePrivacy” means the Privacy and Electronic Communications Directive 2002/58 (including any replacing or superseding legislation);

“Effective Date” means the date of acceptance of the Application Form by the Company;

“Fees” means the Monthly Platform Offer Fee and the Tracking Fee as set out in the Application Form and, as applicable, the Reintegration Fee, the Technical Integration Fee and any other fees that may be agreed between the parties from time to time;

"GDPR” means the EU General Data Protection Regulation 2016/679;

“Group Company” means any holding company or subsidiary of a party or any of its holding companies.  A company is a “subsidiary” of another company, its “holding company”, if that other company (i) holds a majority of the voting rights in it, or (ii) is a member of it and has the right to appoint or remove a majority of its board of directors, (iii) or is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it;

“Initial Term” means a three-month period starting on the Date Live;

“Intellectual Property Rights”  means all copyright and related rights, patents rights to inventions, utility models trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights (including any database rights in the Network), topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

“Interface” means the intranet and software platform provided by the Company as part of the Services in the Country and any functionality accessed or made available through such platform;

“Lead” means a sales lead of the Advertiser generated in the Tracking Period, as reported by the Tracking Code only;

“Link” means a hyperlink from a Publisher Website to an Advertiser URL;

“Monthly Platform Offer Fee” means the fee for the Awin Access Platform Offer payable to the Company per Programme per month, as specified in the Application Form;

“Network” means the marketing network of publishers and advertisers provided by the Company to facilitate, amongst other things, affiliate and performance marketing;

“Participating Publisher” means any Publisher marketing the Advertiser or any Products under this Agreement;

“Payment Term” means a period of 14 days after the invoice date, unless otherwise established by the Application Form. The Payment Term for the Technical Integration Fee or any additional fees agreed by the parties is as communicated by the Company.

“Product” means a product, service or equivalent offered for sale by the Advertiser on any Advertiser URL;

“Programme” means the ongoing provision of the Services in respect of an Advertiser URL for the Term;

“Publisher” means (i) the operator of a website, application or service, which has joined the Network to market advertisers or their products as an affiliate, or (ii) a Publisher Network;

“Publisher Network” means the operator of a marketing network of further publishers to facilitate, amongst other things, affiliate and performance marketing which has joined the Network to market advertisers or their products as an affiliate;

“Publisher Website" means a website, application or service operated by a Publisher to market advertisers or their products;

“Reintegration” means the repeated integration of the Tracking Code into an Advertiser URL in the event of the Advertiser’s failure to comply with its obligations in clause 2.2.1 or 3.2.3, through no fault of the Company;

“Reintegration Fee" means the amount of €150 payable by the Advertiser to the Company after each Reintegration;

“Sales Revenue” means the sale amount of all Transactions that are approved in accordance with the Agreement;

“Services” means the services or assistance provided by the Company under this Agreement;

 “Sub-publisher” means the operator of a website, application or service, which has agreed with the Publisher Network to market advertisers or their products;

“Technical Integration Fee” means the one-time fee for the Assisted or Consulted Technical Integration (if applicable) payable to the Company, as agreed by the parties from time to time.

“Term” means the term of this Agreement from the Effective Date until its termination or expiry in accordance with clause 17 or 21.5;

“Tracking Fee” means the fee payable to the Company, calculated as an override fee of an amount equal to a specified percentage of any total (i) Commission and Bonuses or (ii) Sales Revenue, as indicated in the Application Form.

“Tracking Period” means the 30-day period in which the Tracking Code tracks Actions;

“Transaction” means the agreed purchase of a Product by a Visitor in the Tracking Period, as reported by the Tracking Code only;

“Tracking Code” means the  software code (from time to time) provided by the Company for the recording of, amongst other things, web traffic and Actions;

 “Tracking Policy” means the tracking policy at clause 2.5; and

“Validation Period” means the period in which the Advertiser shall approve or decline Actions via the Interface in accordance with clause 5, as set out in the Application Form;

“Visitor” means any person who follows a Link.

1.1             In this Agreement:

1.1.1        any meanings given to terms in the Application Form shall apply to these Standard Terms;

1.1.2        the terms “Personal Data”, “Process(ed)” and “Processing” have the meanings given to them in the GDPR;

1.1.3        “include” or “including” is without limitation;

1.1.4        the singular will include reference to the plural and vice versa;

1.1.5        a "person" includes an individual, company, partnership or unincorporated association;

1.1.6        a statute, order, regulation or other similar instrument will include any amendments to it or replacements of it;

1.1.7        subheadings shall not affect the interpretation of this Agreement; and

1.1.8        “writing” and “written" includes emails but not faxes.

1.2             If there is a conflict between the Application Form and the Standard Terms, the Application Form shall prevail.

 

2. SET-UP

2.1             Promptly following the Effective Date the Company will provide the Advertiser:

2.1.1        access to the Tracking Code; and

2.1.2        instructions to facilitate the integration of the Tracking Code into the Advertiser URLs by the Advertiser.

2.2             Within 15 Business Days of the Effective Date the Advertiser will:

2.2.1        properly integrate the Tracking Code into the Advertiser URLs, in accordance with the Company's Tracking Policy and clause 2.4; and

2.2.2        provide the Company the Advertiser Materials.

2.3             The Company may test the integration of the Tracking Code into the Advertiser URLs, by placing a test order for the purchase of Products.  The Company will notify the Advertiser of any test order, which shall be cancelled by the Advertiser within 48 hours of such notice.  The costs of the Company arising from uncancelled test orders, including the purchase price and any delivery charges, shall be charged to the Advertiser  in accordance with clause 8.6.

2.4             Advertiser shall ensure that the Tracking Code is not implemented on any Advertiser URLs, where such Advertiser URL is designed to create a static or persistent Transaction confirmation page URL in respect of the Visitor enabling the Company (or any person in possession of such URL) to access Personal Data of a Visitor or otherwise access data in respect of that Transaction.

2.5             The Advertiser must complete:

2.5.1        integration of the Tracking Code in accordance with clause 2.2; and

2.5.2        its bona fide commercial launch on the Network within 20 days of the Effective Date.

2.6             The Advertiser acknowledges that:

2.6.1        the Company depends on proper use of the Tracking Code to ensure Actions are tracked and recorded;

2.6.2        to achieve optimal tracking and recording of Actions, the Advertiser shall implement the Tracking Code as instructed by the Company;

2.6.3        the Advertiser will integrate the Tracking Code on the Advertiser URLs and any iterations of the Advertiser URLs (including mobile websites, mobile applications and any iterations constituting Advertiser URLs on integration) so as to allow the Tracking Code to track any Action (or other event, as applicable) in real time and identify the respective Participating Publisher to which the Action (or other event, as applicable) is attributed.

2.7             If the Advertiser fails to comply, or the Company reasonably suspects that the Advertiser is failing to comply, with its obligations under clause 2.2, 2.4, 2.5 or 2.6, the Company may suspend its obligations under the Agreement, including the provision of all Services and licences, the operation of the Programme and/or the Advertiser's access to the Interface, until the Advertiser rectifies such failure or disproves the reasonable suspicion.

 

3. PROVISION AND USE OF THE SERVICE

3.1             Subject to the Advertiser’s compliance with clause 2.2, the Company will provide to the Advertiser:

3.1.1        access to the Interface; and

3.1.2        updates to the Tracking Code it makes generally available.

3.2             During the Term, the Advertiser will:

3.2.1        provide the Company the Advertiser Materials; 

3.2.2        promptly select and approve Publishers to act as Participating Publishers;

3.2.3        maintain the proper integration of the Tracking Code into the Advertiser URLs, including any updates, in accordance with the Company's Tracking Policy;

3.2.4        use all reasonable endeavours to inform the Company in advance where possible, of any circumstances likely to prevent the Tracking Code accurately recording Actions;

3.2.5        provide the Company any information, assistance or access reasonably requested to enable the supply of the Services;

3.2.6        ensure any information it provides to the Company is accurate and up to date; and

3.2.7        notify the Company of any actual (and to the extent possible, anticipated) downtime of any of the Advertiser URLs.

3.3             If the Advertiser fails to comply, or the Company reasonably suspects that the Advertiser is failing to comply, with its obligations under clause 3.2 the Company may suspend its obligations under the Agreement, including the provision of all Services and licences, the operation of the Programme and/or the Advertiser's access to the Interface, until the Advertiser rectifies such failure or disproves the reasonable suspicion.

 

4. MANAGING CAMPAIGNS AND PROGRAMMES

4.1             Programmes and or Campaigns will commence as soon as practicable after completion of the obligations at clause 2.

4.2             Services to be provided under additional Campaigns will be provided by the Company for the period, budget and other terms set out in writing, agreed by the Advertiser and Company from time to time.

4.3             The Advertiser will provide the Company any Advertiser Materials relevant to the Programme or Campaign as applicable.

4.4             The Company will, on the Advertiser's request:

(a)             prevent any Publisher from acting as a Participating Publisher; and

(b)             use reasonable endeavours to procure Participating Publishers remove Advertiser Materials or Links from Publisher Websites;

4.5             The Advertiser will:

4.5.1        permit Publishers to market the Advertiser and its Products;

4.5.2        inform Participating Publishers of any:

(a)             information relevant to the promotion of the Advertiser or any Products;

(b)             Advertising Standards applicable to the promotion of the Products or the Advertiser;

(c)              Advertiser Materials which are directed to children;

(d)             terms and conditions, or other requirements, applied by the Advertiser to the promotion of the Advertiser or any Products from time to time;

4.5.3        inform the Company of any complaints made to the Advertiser in respect of any Participating Publisher; and

4.5.4        comply with any terms and conditions, or other requirements, applied by a Participating Publisher to its promotion of the Advertiser or any Products from time to time.

4.6             Any terms and conditions, or other requirements, applied by the Advertiser to the promotion of the Advertiser or any Products shall be subject to the terms of this Agreement.  

4.7             Subject to clause 11, the Advertiser may not reject Publishers which are permitted to promote the Advertiser on other affiliate marketing networks in the Country, or as part of an in-house or personal affiliate marketing campaign or programme.

4.8             The Advertiser may delegate the day-to-day operation of Campaigns and Programmes to a third party on written notice to the Company, provided that the Advertiser shall remain primarily liable for the acts or omissions of that third party.

 

5. TRACKING

5.1             Subject to clause 7, the Tracking Code and Awin Access Tracking Policy at https://www.awin.com/gb/tracking-policy will be the sole basis for recording and determining Actions and Commissions.

5.2             The Company will:

5.2.1        enable the Advertiser to approve or decline Transactions and Leads; and

5.2.2        as soon as practicable, respond to the Advertiser’s questions regarding Actions.

5.3             The Advertiser must approve Transactions and Leads:

5.3.1        in good faith; and

5.3.2        in a manner consistent with its historic approach to the approval or decline of Transactions or Leads of that type, unless reasonable advance notice is given to Participating Publishers of a change to the Advertiser’s approach to the approval or decline of Transactions or Leads.

5.4             The Advertiser shall use all reasonable endeavours to approve Transactions and Leads within the Validation Period.

5.5             The Advertiser may only decline:

5.5.1        Transactions which the Advertiser can evidence to the Company’s reasonable satisfaction were cancelled in accordance with applicable statutory consumer rights of cancellation or terms of business; or

5.5.2        Transactions and Leads which the Advertiser can evidence to the Company’s reasonable satisfaction were:

(a)             generated in breach of any terms and conditions, or other requirements, applied by the Advertiser to the promotion of the Advertiser or any Products; or

(b)             the result of a fraud committed by a Participating Publisher.

5.6             Each Transaction and Lead will auto-validate and be deemed to have been approved by the Advertiser at the end of the respective Validation Period, unless declined in accordance with clause 5.5.

5.7             The Advertiser agrees and acknowledges that it has no right whatsoever to recover from the Company or any Participating Publisher any Fees or Commissions paid to the Company in respect of Approved Transactions or Approved Leads (including those deemed approved under clause 5.6).  The Advertiser hereby waives and releases the Company and any Participating Publisher from any claims the Advertiser may have for recovery of paid Fees or Commissions.

 

6. ACTIONS, COMMISSIONS AND BONUSES

6.1             The amount of any Commissions is as set out in the Application Form and as may be displayed on the Interface.  CPA Commissions in respect of Approved Transactions will be determined as either:

6.1.1        a percentage of the purchase price of the Product(s) subject of the Approved Transaction, as set out on Interface; or

6.1.2        a fixed amount, irrespective of the purchase price of the Product(s) subject of the Approved Transaction, as set out on Interface.

6.2             The Advertiser may commit to pay additional Commissions, on terms set out on the Interface, at its discretion.

6.3             The Advertiser may commit to pay Bonuses, on terms set out on the Interface, at its discretion.    

6.4             The Company will ensure that an equivalent payment to the respective Participating Publisher is made to which the Approved Transaction or Approved Lead is attributed, or to which the Bonus is due.  This payment may be subject to the prior payment of Commission from the Advertiser.

6.5             Subject to clause 6.6, the Advertiser may vary the prospective Commission on 30 Business Days’ notice to Publishers by using the Interface or by written request to the Company personnel.  Commissions and Bonuses applicable to past Actions or other historic marketing activity may not be varied.  

6.6             The Commission may not be reduced by more than 20% in any 30-day period without the Company's prior written consent. The Advertiser may seek the Company’s consent for such Commission reductions via the “Contact Us” section on the Interface.

6.7             The Advertiser will be bound to pay Commission as varied, whether such variations were made by the Advertiser or on the Advertiser’s behalf, for any all Actions made after the time of variation.

6.8             Any variations to the Commission are made by operation of this Agreement and do not constitute any amendment to this Agreement or the entry of any additional agreement.

6.9             Subject to clause 11, the Commission may not be less than the equivalent commission offered by the Advertiser on other affiliate marketing networks in the Country, or in-house or personal affiliate marketing programs.

6.10          Any measures to prevent or reduce the amount of any Commission, Tracking Fee or Bonus incurred or payable in respect of an Action, which are implemented on the basis that the Visitor subject of the Action also visited the Advertiser URL through non-Network sales channels or sources of web traffic are referred to as “Deduplication”.   The basis for Deduplication shall be provided to the Company in reasonable time in advance of their implementation. 

6.11          Deduplication is subject to any conflicting provisions in this Agreement and the Tracking Policy.  Deduplication may not be implemented on the basis that, within the Tracking Period, the Visitor subject of the Action also visited the Advertiser URL:

6.11.1      by typing the Advertiser URL into a web browser;

6.11.2      by following links appearing in

(a)             organic search results;

(b)             paid-for results of searches on the Advertiser’s brand names;

(c)              organic social media;

(d)             price comparison websites;

6.11.3      as a result of internal email marketing or newsletters;

6.11.4      as a result of the retargeting of that Visitor:

(a)             by email;

(b)             by telephone;

(c)              by interstitial or pop-up; or

(d)             while at the Advertiser URL, as a result that Visitor’s behaviour.

 

7. CLAIMED ACTIONS

7.1             This clause 7 shall have effect on notice by the Company to the Advertiser.  The following definitions and rules of interpretation apply:

7.1.1        "Claimed Action” means a Claimed Lead or Claimed Transaction.

7.1.2        “Claimed Lead” means a sales lead of the Advertiser generated in the Tracking Period and which (i) was not recorded by the Tracking Code and/or not approved by the Advertiser as a Transaction under clause 5; and (ii) a Participating Publisher can demonstrate to the Company’s reasonable satisfaction ought to be have been recorded by the Tracking Code and/or approved by the Advertiser as a Lead under clause 5 of the Standard Terms.

7.1.3        “Claimed Transaction” means the agreed purchase of a Product by a Visitor in the Tracking Period and which (i) was not recorded by the Tracking Code and/or not approved by the Advertiser as a Transaction under clause 5; and (ii) a Participating Publisher can demonstrate to the Company’s reasonable satisfaction ought to be have been recorded by the Tracking Code and/or approved by the Advertiser as a Transaction under clause 5 of the Standard Terms.

7.1.4        The terms “Approved Transaction” and “Approved Lead” shall respectively include a Claimed Transaction and a Claimed Lead approved in accordance with this clause.

7.2             The Validation Period for Claimed Actions is 75 days.

7.3             The Company will:

7.3.1        enable the Advertiser to approve or decline Claimed Actions; and

7.3.2        as soon as practicable, respond to the Advertiser’s questions regarding Claimed Actions.

7.4             The Advertiser shall use all reasonable endeavours to approve Claimed Actions within the Validation Period for Claimed Actions.

7.5             The Advertiser must approve Claimed Actions in good faith and:

7.5.1        having regard to any information provided by a Participating Publisher to demonstrate the Claimed Actions ought to have been approved by the Advertiser under clause 5 of the Standard Terms; and

7.5.2        in a manner consistent with its historic approach to the approval or decline of Transactions, Leads or Claimed Actions of that type, unless reasonable advance notice is given to Participating Publishers.

7.6             The Advertiser may only decline:

7.6.1        Claimed Transactions which the Advertiser can evidence to the Company’s reasonable satisfaction were cancelled in accordance with applicable statutory consumer rights of cancellation or terms of business; or

7.6.2        Claimed Actions which the Advertiser can evidence to the Company’s reasonable satisfaction were:

(a)             generated in breach of any terms and conditions, or other requirements, applied by the Advertiser to the promotion of the Advertiser or any Products; or

(b)             the result of a fraud committed by a Participating Publisher.

7.7             Claimed Actions will be deemed to have been approved by the Advertiser at the end of the respective Validation Period for Claimed Actions, unless declined in accordance with this clause.

 

8. PAYMENTS, INVOICING

Determination of Fees and Commissions

8.1             The amount of the Tracking Fee is as set out the Application Form. Tracking Fees are payable in addition to Commissions or Bonuses.

8.2             The Advertiser will pay the Company, without deduction or set-off:

8.2.1        the Monthly Platform Offer Fee;

8.2.2        the Tracking Fee;

8.2.3        the Commissions in respect of each Approved Transaction or Approved Lead;

8.2.4        the Bonuses due;

8.2.5        the Reintegration Fee in respect of each Reintegration;

8.2.6        the Technical Integration Fee (if applicable); and

8.2.7        any other Fees that may be agreed between the parties from time to time.

8.3             During any period of Advertiser Downtime, the Tracking Fees, Bonuses and Commission will be determined by the Company (subject to review in case of dispute by a competent Court), having regard to the average value of Fees and Commission payable by the Advertiser (including, where applicable the average value of Fees and Commission payable by the Advertiser during equivalent periods in previous years).

8.4             Following the determination of Tracking Fees, Bonuses and Commission under clause 8.3, the Company will inform respective Publishers.

Invoicing and Payments

8.5             Invoices will be sent to the Advertiser’s invoice email address set out on the Application Form or as otherwise notified by the Advertiser to the Company in writing during the Term.

8.6             The Company will invoice the Advertiser for the costs (including the purchase price and any delivery charges) of any uncancelled purchases of Products made by the Company to test the implementation of the Tracking Code under clause 2.3.

8.7             Unless otherwise established herein, this Agreement is payable on a post-payment basis. The Company will invoice the Advertiser for the Monthly Platform Offer Fee (on a pro rata basis), the Tracking Fees, the Commission and any Bonuses (as applicable) at least once per month. Shortly after each Reintegration (if applicable), the Company will invoice the Advertiser for the Reintegration Fee. Prior to the Assisted or Consulted Technical Integration (if applicable), the Company will invoice the Advertiser for the Technical Integration Fee, which shall be paid by the Advertiser before such Assisted or Consulted Technical Integration takes place. Additional payment conditions can apply to other fees agreed by the parties from time to time.

8.8             The Advertiser will pay any invoices under this Agreement within the Payment Term. In further detail:

8.8.1        If the Programme Currency on the Application Form is Euro/EUR, all payments due under this Agreement by the Advertiser will be made by SEPA direct debit within the Payment Term for the respective invoice. The Advertiser must grant the Company a SEPA direct debit mandate for the Term of the Agreement and for a further period following the Term (the length of such further period shall allow the Company to receive any payments due after the Term). Instructions to set up the SEPA direct debit mandate will be sent to the Advertiser via email upon acceptance of the Application Form by the Company. The SEPA direct debit mandate shall form part of this Agreement.

8.8.2        If the Programme Currency on the Application Form is not Euro/EUR, all payments due under this Agreement by the Advertiser must be made to the bank account nominated in writing by the Company.

8.9             Without prejudice to the Company’s other rights or remedies, if the Advertiser fails to make any payment when due under this Agreement or any Additional Country Agreement:

8.9.1        the Company may charge, from the due date for payment until payment is made (whether before or after any judgment), annual interest on the unpaid amount at 4% above the European Central Bank base rate, accruing on a daily basis and being compounded quarterly and the costs of recovering such unpaid amounts; and/or

8.9.2        the Company may suspend all Services and licences, or terminate this Agreement, with immediate effect, until payment is made in full.

8.10          All sums payable under this Agreement shall be exclusive of VAT which, if applicable, shall be added at the appropriate rate. VAT shall be paid by the Party liable to pay VAT pursuant to applicable law. If payments under this Agreement are subject to withholding tax, the Advertiser is entitled to deduct the appropriate amount from payments to the Company. The parties agree to work together on reducing or avoiding any withholding tax, and, upon request, shall provide documents required for any reduction, exemption, reimbursement or deduction of withholding tax.

8.11          All amounts payable shall be paid in the currency in which they are invoiced.  Any costs of currency conversion or losses caused by exchange rate fluctuations shall be borne by the Advertiser.

 

9. COUNTRIES AND ADDITIONAL COUNTRY AGREEMENTS

9.1             This Agreement is entered in respect of the Country only.

9.2             The Advertiser, Advertiser Group Companies and the Company Group Companies may agree in writing to the provision of affiliate marketing services in other Countries.

9.3             Each executed written agreement as per clause 9.2 (“Additional Country Agreement”) shall constitute a separate agreement between the Advertiser (or Advertiser Group Company) and the respective Company Group Company.

9.4             Subject to clause 17, any such agreements shall survive termination of this Agreement and each other.

 

10. THE ADVERTISER’S RELATIONSHIP WITH PUBLISHERS

10.1          For the duration of this Agreement, the Advertiser will not, directly or indirectly, enter or attempt to enter into any agreement, understanding or other form of arrangement (whether express or implied) with any current or former Participating Publishers:

10.1.1      where payments are made to current or former Participating Publishers in respect of any marketing services (including affiliate, display, programmatic, search, email and click-to-call marketing) other than under this Agreement; or

10.1.2      which prevents or disincentivises current or former Participating Publishers from promoting other advertisers.

10.2          The Advertiser will pay the Company on demand by way of liquidated damages an amount equal to 30% of all Commissions, Fees or any other amounts paid or due to be paid, directly or indirectly, to current or former Participating Publishers in breach of the restrictions in clause 10.1. The parties acknowledge that the liquidated damages represent a genuine pre-estimation of the loss that would be suffered by the Company as a result of any breach of the restrictions in clause 10.1.

10.3          This clause 10 applies to current and former Participating Publishers, irrespective of any existing relationships between the Advertisers and such Publishers.

 

11. EXCLUSIVITY

11.1          For the Term, the Advertiser will not, directly or indirectly, enter or attempt to enter into any agreement, understanding or other form of arrangement (whether express or implied) with the operators of any marketing network, or providers of performance marketing products or services, for the supply of products or services identical or similar to the services provided by or on behalf of the Company under this Agreement.

11.2          For the Term, the Advertiser will not operate any in-house or personal affiliate marketing program.

11.3          The Advertiser will pay the Company, on demand and by way of liquidated damages, an amount equal to 30% of all commissions, fees or any other amounts paid or due to be paid, directly or indirectly, to any publishers or marketing network operators in breach of clause 11.2. The parties acknowledge such liquidated damages represent a genuine pre-estimation of the loss suffered by the Company as a result of a breach of clause 11.2.  

 

12. WARRANTIES

12.1          Each party warrants and undertakes to the other for the Term that:

12.1.1      it has full power and authority to enter into this Agreement;

12.1.2      it holds all licences and approvals necessary for the performance of its obligations under this Agreement;

12.1.3      it will perform its obligations under this Agreement in accordance with all applicable laws and using reasonable skill and care; and

12.1.4      it will not make any false, misleading or disparaging representations or statements regarding the other party.

12.2          The Advertiser warrants and undertakes to the Company for the Term that:

12.2.1      all Advertiser Materials comply with all Advertising Standards; and

12.2.2      all variations to Commissions under clause 6 will be made by authorised personnel.

 

13. INTELLECTUAL PROPERTY

13.1          The Advertiser hereby grants to the Company a non-exclusive, transferable, royalty-free, worldwide licence to publish the Advertiser Materials on the Interface and to use the Advertiser Materials to:

13.1.1      operate the Network;

13.1.2      enable Participating Publishers to market the Advertiser and its Products;

13.1.3      market its business, with the Advertiser’s prior consent;

13.1.4      otherwise carry on its website traffic, consumer behaviour tracking and transaction reporting business from time to time.  

13.2          The Company may grant sublicences of the licence at clause 13.1 to Participating Publishers to the extent necessary to enable Participating Publishers to market the Advertiser and its Products on the Network.

13.3          A sublicence granted to a Publisher Network under clause 13.2 shall be further sublicensable by the Participating Publisher to Sub-publishers on terms equivalent to clause 13.2. 

13.4          A sublicence granted by a Publisher Network under clause 13.3 shall not be capable of further sublicence by the Sub-publisher without the Advertiser's prior written consent.

13.5          The Company hereby grants to the Advertiser a non-exclusive, non-sublicensable, non-transferable, royalty free worldwide licence to:

13.5.1      use the Tracking Code on the Advertiser URLs; and

13.5.2      use the Interface;

to the extent necessary for the Advertiser to participate in the Network and perform its obligations under this Agreement.

13.6          The Advertiser will not, and will not attempt to, change, reverse engineer or create derivative works of the Interface or the Tracking Code.

13.7          Each party reserves all of its right, title and interest to any of its Intellectual Property Rights licensed under this clause 13, or which it creates under this Agreement. 

13.8          The Advertiser will indemnify, defend and hold harmless the Company and any of its Group Companies (including their directors, employees, agents or contractors), from and against any claims, costs, damages, losses, liabilities and expenses (including legal fees) relating to any claims, actions, suits or proceedings by third parties against the Company arising out of or related in any way to the Company’s, or any Participating Publisher's, use of the Advertiser Materials in accordance with this Agreement.

 

14. CONFIDENTIALITY

14.1          Each party will only use Confidential Information to enjoy its rights or comply with its obligations under this Agreement. Save as set out in this Agreement, neither party will disclose any Confidential Information. Confidential Information shall be kept confidential.

14.2          The obligations of confidentiality in this Agreement will not apply to Confidential Information to the extent it:

14.2.1      is in the public domain (other than as a result of a breach of this Agreement);

14.2.2      can be demonstrated as having been independently developed by the receiving party;

14.2.3      is published on the Interface in the receipt or provision of the Services in accordance with this Agreement;

14.2.4      is required to be disclosed by law or a court order.

14.3          The Company may disclose Confidential Information to Group Companies.

14.4          This clause will survive termination for five years.

 

15. DATA PROTECTION AND COOKIES

15.1          The Company and the Advertiser will comply with their respective obligations under Data Regulation. Each party will provide the other party any co-operation reasonably requested to enable the other party’s compliance with this clause 15.1.

15.2          The Company and the Advertiser will each comply with any data processing agreement or arrangement entered into by them in connection with Personal Data published under this Agreement.

15.3          The Advertiser shall not use any reports generated by use of the Interface to create Visitor profiles, as defined under GDPR.

15.4          The Advertiser will not do or omit to do any act which may cause the Company to be in breach of any of its obligations under the Data Regulations.

15.5          The Advertiser will, on behalf of the Company to comply with ePrivacy obtain the prior, freely-given, specific, informed, unambiguous and revocable consent of Visitors and other users of Advertiser URLs to cookies or other tracking technologies of the Company served under this Agreement.

 

16. LIMITATION OF LIABILITY

16.1          This clause 16 sets out the entire liability of the Company and its Group Companies under or in connection with the Agreement.

16.2          Claims for damages shall be excluded unless otherwise specified below.  This clause 16 shall also apply to the benefit of the legal representatives and vicarious agents of Group Companies if the Advertiser asserts claims against them.

16.3          In the event of material damage and financial loss caused by slight negligence, the Company shall only be liable in the event of a breach of a material contractual obligation, and such liability shall be limited to the amount of damages foreseeable and typical for the contract at the time of conclusion of the Agreement. In this clause 'material contractual obligations’ are those whose fulfilment characterises the contract and on which the Advertiser may rely.

16.4          The Parties agree that the amount of the damages foreseeable and typical for the contract pursuant to clause 16.3 is limited to the amount of the Tracking Fee actually received by the Company from the Advertiser in the 12 month period preceding the date on which the claim arose.

16.5          No Group Company will be liable for any losses of the Advertiser if its compliance with the Agreement is prevented by the acts or omissions of the Advertiser.

16.6          No Group Company will be liable to the Advertiser for any kind of property, financial or consequential damages arising from the acts or omissions of a Publisher.

16.7          Legal claims for defects in the Company’s Services against Group Companies shall expire 12 months after the delivery of the respective Services.

16.8          Except as expressly stated otherwise in this Agreement, all warranties, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

16.9          The Network, the Interface, the Tracking Code, the Services, their use and the results of such use are provided "as is" to the fullest extent permitted by law. The Company disclaims all express or implied warranties, including warranties of satisfactory quality and fitness for a particular purpose, which may be implied in respect of the Network, the Interface, the Tracking Code, the Services, their use and the results of such use. The performance of the Network and the Interface relies on third parties beyond the Company’s control. The Company specifically disclaims any warranty:

16.9.1      that the use or operation of the Network, the Interface or the Tracking Code will be uninterrupted or error-free;

16.9.2      that defects will be corrected;

16.9.3      that the Network, the Interface or the Tracking Code are free of viruses or malicious code

16.9.4      that any security methods employed will be sufficient;

16.9.5      in respect of any Publisher or its technology; and

16.9.6      regarding correctness, accuracy, or reliability.

16.10        Nothing in this Agreement shall limit or exclude the liability of the Company or any of its Group Companies, or any representatives or vicarious agents of the Company, for

16.10.1   death or personal injury;

16.10.2   strict liability prescribed by law, including under the applicable Product Liability Act of the Federal Republic of Germany or other product liability laws or guarantee;

16.10.3   liabilities arising in respect of a party’s gross negligence or intentional breach;

16.10.4   claims in accordance with statutory warranty law arising from defects in Company’s Services for which the Advertiser brings a claim within 12 months of delivery of such Services.

 

17. TERMINATION

17.1          This Agreement will start on the Effective Date and continue for the Initial Term. After the Initial Term, this Agreement will automatically continue until terminated by either Party in accordance with this clause 17.  

17.2          Any statutory right of termination remains unaffected.

17.3          The Company may terminate this Agreement immediately on written notice to the Advertiser if the Advertiser fails:

17.3.1      to comply with its obligations under clauses 2.2.1 or 3.2.2 of this Agreement or the equivalent clauses of any Additional Country Agreement;

17.3.2      to provide assistance reasonably requested by the Company; or

17.3.3      through no fault of the Company, to commence bona fide participation in the Network within 90 days of the Effective Date.

17.4          The Company may suspend this Agreement for the period of the Advertiser’s non-compliance with clauses 2.2, 2.4-2.6, 3, 5.3 - 5.5, 6.10, 8.2, 8.7, 8.7.1, 8.7.2, 10, 11 of this Agreement or the equivalent clauses of any Additional Country Agreement.

17.5          After the Initial Term, either party may terminate this Agreement on at least fourteen days’ written notice to the other party.

17.6          The notice period in 17.5 shall be extended to the minimum extent necessary to enable the completion of any ongoing Campaigns. 

17.7          Without prejudice to its other rights or remedies, a party may terminate the Agreement immediately on written notice to the other party, if:

17.7.1      the other party materially breaches this Agreement and (if remediable) fails to remedy that breach within 2 days of a written request to do so;

17.7.2      the other party materially breaches any data processing agreement or arrangement entered into in connection with Personal Data published under this Agreement.

17.7.3      the other party is deemed unable to pay its debts; steps are made to wind up, or appoint an administrator over, the other party; a third party becomes entitled to appoint a receiver over the assets of the other party; the other party negotiates with all or a class of its creditors, or proposes or enters a compromise with such creditors; or any similar or analogous event occurs.

17.8          Without prejudice to its other rights or remedies, the Company may terminate the Agreement immediately on written notice to the Advertiser if an Advertiser Group Company materially breaches an Additional Country Agreement and (if remediable) fails to remedy that breach within 2 days of a written request to do so.

 

18. CONSEQUENCES OF TERMINATION

18.1          Termination of this Agreement will not affect any existing rights or remedies. Clauses 1, 5, 6, 7, 8, 9.4, 13.6, 13.7, 13.8, 14, 15, 16, 18, 19, 20, 21.3, 21.4, 21.5, 21.7, 21.8, 21.9, 21.12  and 21.13 will survive termination.

18.2          On termination of the Agreement:

18.2.1      all licences will terminate;

18.2.2      each party will return or at the other party’s option destroy all Confidential Information in its possession within five Business Days; and

18.2.3      the Advertiser will immediately pay all outstanding Fees, Bonuses and Commissions due to the Company.

 

19. NOTICES

19.1          Notices given under this Agreement will be in writing and:

19.1.1      displayed by the Company on the Interface;

19.1.2      delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its notice address set out in the Application Form (or such other address as may have been notified); or

19.1.3      sent by email to the other party’s notice email address set out in the Application Form (or such other email address as may be set out by the Advertiser on the Interface).

19.2          A notice displayed by the Company on the Interface will be deemed to have been received at the time of its display (or if displayed outside ordinary business hours, at 9 am on the first Business Day following display). A notice delivered by hand will be deemed to have been received when delivered (or if delivered outside ordinary business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received two Business Days after posting. A notice sent by email will be deemed to have been received at the time of transmission as shown by the sender’s records (or if sent outside ordinary business hours, at 9 am on the first Business Day following despatch).

 

20. SEVERANCE

20.1          If any part of this Agreement (including as a result of any amendment) be wholly or partially unenforceable or void, or if this Agreement appears to contain omissions, the remainder of the Agreement shall remain in full force and effect and it is the express intention of the parties that remainder of the Agreement shall so remain, notwithstanding any legal or statutory presumptions to the contrary,

20.2          In the event of any voidance, unenforceability or absence, as set out in clause 20.1 above, the parties shall negotiate in good faith a replacement provision that, to the greatest extent possible, achieves the intended legal and commercial result of the original provision, having regard to the spirit and purpose of the Agreement at the time it was originally entered, and being as close as permissible to any specifications (including timeframes and quantities) set out in the original provision.

20.3          This Agreement shall automatically and immediately terminate if compliance with its terms (in whole or in part) were to cause one or both parties an unacceptable hardship as a result of a failure to reach agreement on a replacement provision following negotiations under clause 20.2.

 

21. GENERAL

21.1          If the Advertiser has instructed an Agent to represent the Advertiser, the Advertiser warrants to the Company that the Agent has full authority to bind the Advertiser. The Advertiser remains liable for all acts, representations and agreements of the Agent, including the payment of all monies due to under this Agreement.

21.2          This Agreement will survive any termination of the appointment of the Agent (if any).

21.3          The Company may set off any liability of the Advertiser against any liability of the Company or any monies held by the Company to the Advertiser's account.

21.4          Time for performance of clause 2.2, and payment of invoices are of the essence of this Agreement.

21.5          No party will be liable for any breach of this Agreement arising from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 30 days’ written notice to the other party.

21.6          The Advertiser may not assign or subcontract its rights or obligations under this Agreement without the Company's prior written consent. The Company may assign or subcontract its rights or obligations under this Agreement.

21.7          Nothing in the Agreement constitutes a partnership or joint venture between the parties, nor constitutes a party the agent of the other. No party has authority to bind the other.

21.8          A person who is not a party to this Agreement will not have any statutory rights under or in connection with it.

21.9          A counterpart of this Agreement executed and/or transmitted electronically shall be treated as fully binding and with full legal force and effect.

21.10        All amendments to this Agreement must be made in writing to be effective and must be signed by the parties unless the parties (or their authorised representatives) have agreed otherwise (e.g. electronically via the Interface).

21.11        The Company shall be entitled to unilaterally amend the terms of this Agreement to the extent necessary to remedy discrepancies or to adapt to changes in legal or technical conditions. The Company shall notify the Advertiser of any such changes, providing information of the content of the changed terms to the Advertiser’s email address specified in the Application Form or as notified by the Advertiser via the Interface. The changes become part of the Agreement if the Advertiser does not object to their inclusion in writing within 6 weeks of receipt of the change notification.

21.12        This Agreement constitutes the entire agreement between the parties relating to its subject matter, to the exclusion of the United Nations Convention on Contracts for International Sale of Goods. This Agreement is governed by the law of The Federal Republic of Germany, and the courts of Berlin have exclusive jurisdiction, and Section 139 of the German Civil Code shall be excluded in its entirety.

21.13        The Advertiser is aware that this Agreement is originally drawn up in English. The Advertiser is aware of and accepts that, in the event of any inconsistencies or differences of interpretation between the English version and a translated version, the English version shall always prevail.