F2F-Marketing - Affiliate Terms and Conditions
IMPORTANT NOTICE: The German version prevails. The English version is a complementary version only.
1. Area of application
Performances, offers and contracts between AffiliatePerformance GmbH and the affiliate are exclusively governed by the following terms and conditions of business.
Contradictory terms and conditions of business of the affiliates are invalid, unless their validity has been expressly agreed between AffiliatePerformance GmbH and the affiliate. Any affirmation of the affiliate to the contrary in reference to its own terms and conditions of business is herewith rejected.
Subsidiary agreements, amendments and supplements to this contract require the written form.
The application 'Choose WithMe' is provided by Columbus Internet GmbH.
The advertiser is the customer of Columbus Internet GmbH and uses the application for promotion and for sale of its products and services and provides corresponding data and information via the application for this purpose.
A person or company that maintains a page on facebook.com and integrates the application therein.
A lead becomes valid as soon as a user makes a valid click and then voluntarily and consciously performs a certain action (qualified action) on the website of the advertiser. Valid leads are identified or defined like valid clicks, whereby, with regard to the performance of the qualified action, these are logged and validated for AffiliatePerformance GmbH by the advertiser’s system and defined by AffiliatePerformance GmbH at its sole discretion.
A sale becomes valid as soon as a user makes a valid click and then voluntarily and consciously orders an item of merchandise against payment or makes use of a service against payment. Valid sales are identified or defined like valid clicks, whereby, with regard to the ordering of merchandise or use of services against payment by the user, these are logged and validated for AffiliatePerformance GmbH by the advertiser’s system and defined by AffiliatePerformance GmbH according to the advertiser’s criteria.
Any private individual who voluntarily and consciously accesses the application, i.e. without compulsion or deception, without receiving payment from the affiliate or a third party – except in the context of a bonus system operated by AffiliatePerformance GmbH itself.
On behalf of the advertiser, AffiliatePerformance GmbH operates the application Choose WithMe. The application enables the user to jointly select flights, hotels, etc., with other users in real-time via the internet. Using the application, they can follow the searches of other participants, read their comments and share their own comments with other participating travelers.
AffiliatePerformance GmbH receives a commission from the advertisers for all valid leads/sales generated via the application.
This right is non-exclusive. AffiliatePerformance is entitled to acquire other affiliate Facebook pages, which can also use this application.
The affiliate shall also receive a commission.
AffiliatePerformance GmbH issues a monthly invoice for the affiliate with regard to the credits issued by the advertiser for all applications and all Facebook pages of an affiliate. On the first of every month, the affiliate will be informed by e-mail about the amount of the prospective payment for the previous month, in accordance with the credit notes previously made out to the affiliate account. AffiliatePerformance GmbH will make the payment to the affiliate by the 15th day of the month following the month to be settled at the latest providing the payment for the reporting month to be settled is at least EUR 25.00 net and the corresponding credit notes from the advertiser have been booked by AffiliatePerformance GmbH. If the credit note is less than EUR 25.00 net, AffiliatePerformance GmbH will only make the payment to the affiliate in the month in which the cumulative total of all credit notes on the affiliate account reaches at least EUR 25.00 net. For each payment AffiliatePerformance GmbH will issue a corresponding credit note in accordance with the requirements of tax law. The credit balance on the affiliate account will not accrue interest.
Each payment is subject to demands for refunds. Refunds are only permitted if the advertiser asserts a claim for refunding against AffiliatePerformance GmbH. If the affiliate regards the advertiser’s claim for a refund as unjustified, then it can demand payment of the refund concurrently against assignment of the corresponding claim of AffiliatePerformance GmbH against the advertiser.
The affiliate is entitled to inspect all information relating to it, especially in relation to the leads/sales generated via its Facebook page(s), especially the information pertaining to the affiliate that is made available to the advertisers.
5. Third party websites
The application contains links to the websites of advertisers over whose contents AffiliatePerformance GmbH has no influence. The respective provider or operator of the sites is always responsible for the content of the linked sites. No guarantee is extended as to the contents and correctness of the information in linked websites of third party information providers.
At the time of linking, the respective sites were examined for possible legal infringements without result. Should any legal infringements become known, such links will be removed immediately.
It is also the responsibility of the affiliate to likewise persuade itself of the suitability of the contents of linked sites. The affiliate is advised to issue a similar disclaimer to its own site visitors.
6. Saving of data
By using the application you hereby permit AffiliatePerformance GmbH to transmit all data in connection with your use of the application to Germany and to save such data. Our data protection policy additionally applies. (Data protection) The affiliate is advised to issue similar data protection guidelines to its own site visitors.
7. Scope of use
The affiliate may exclusively use the application as described in section 3.
The copying of application content, structures or processes is prohibited as is distribution and public reproduction of the same.
Likewise prohibited is any action that is likely to impair the proper functioning of the application, insofar as this does not occur in the context of proper use. The affiliate may not use any contents that infringe criminal law or make any defamatory statements, nor may it issue any other content that infringes the copyrights of third parties. The Provider reserves the right to change the processes and scope of function of the application.
8. Availability of the application
The affiliate accepts that it is not technically feasible to ensure 100% availability of the application. However, the Provider endeavors to ensure constant availability of the application to the greatest extent possible. If the availability of the application is foreseeably restricted, this circumstance will be announced as soon as it becomes apparent.
Any liability on the part of the Provider for restrictions in availability that were not foreseeable by the latter is excluded. In particular, infringements of obligations by contractual partners of the Provider count as unforeseeable, especially by providers and by the facebook.com platform itself.
9. Compensation for damages / contractual penalty
If the affiliate uses the application in contravention of the law or contractual provisions, it becomes liable to pay AffiliatePerformance GmbH compensation.
In particular, the affiliate shall indemnify AffiliatePerformance GmbH against any claims by third parties, including reasonable legal costs.
Affiliates who copy the functional processes or program codes of the application and publish these or use them with another application, affiliates who copy the data from the application and publish or use this, as well as affiliates who use the software or other scripts in conjunction with the use of the application to disrupt the proper functioning of the application, will generally incur a contractual penalty of EUR 50,000. The above is without prejudice to the right of AffiliatePerformance GmbH to claim further compensation for damages.
10. Liability of AffiliatePerformance GmbH
The application solely offers the user a platform, which enables / facilitates the communication of users with other users and merely provides the technical applications for this purpose. AffiliatePerformance GmbH is not involved in the content of the communication between users. If users enter contracts with each other or with third parties, in particular with advertisers, via the application, AffiliatePerformance GmbH is not a party thereto and is therefore not a contractual partner. The users are solely responsible for the execution and or fulfillment of contracts entered among themselves or with third parties. AffiliatePerformance GmbH is not liable for the orderly fulfillment of contracts or for infringements of obligations by users resulting from contracts signed between users or between these and third parties, especially advertisers.
The affiliate will refrain from any action that could create the impression that AffiliatePerformance GmbH, notwithstanding the above, might be a contractual partner of the user.
The affiliate is advised to issue a similar liability exclusion to its own site visitors.
Claims for damages – regardless of their legal basis – against AffiliatePerformance GmbH, its employees, proprietors or agents are excluded unless these claims follow from intent or gross negligence.
In particular, AffiliatePerformancet GmbH, its employees, proprietors or agents are only liable for their own negligence or negligence that is predominantly their own. A liability for the negligence of third parties or negligence that is predominantly that of third parties is excluded.
AffiliatePerformance GmbH, its employees, proprietors or agents are not liable for consequential damage, indirect damage, profits foregone or for the costs of restoration of lost data.
Under no circumstances shall AffiliatePerformance GmbH be liable for damage that is suffered by a user or third party from the planning or performance of a journey. This applies even if the damage is the result of information about a flight or other content from the application.
AffiliatePerformance GmbH is not responsible for the content created by users or for the content of third parties and accepts no liability for such. If notice of legal infringement is given, the legal infringement will be documented and the corresponding contents will immediately be made indecipherable.
AffiliatePerformancet GmbH does not accept liability for delays, interruptions, deletions, operational defects or for transmission or destruction of stored data.
AffiliatePerformance GmbH is not liable for the consequences of technical changes and / or changes with relevance to data protection law by Facebook Ireland Limited.
AffiliatePerformance GmbH accepts no liability for unauthorized access by third parties.
AffiliatePerformance GmbH accepts no liability for the relevance, completeness or reliability of the contents on the websites or on the linked sites, nor that these contents are up-to-date or free of errors. The reference to products, services, procedures or other information via trade names, trademarks, manufacturer names, supplier names or in any other way does not imply a recommendation of any kind by AffiliatePerformance GmbH.
AffiliatePerformance GmbH does not accept liability for the virus-free state of the website or services, its servers or other platform applications.
AffiliatePerformance GmbH does not accept any liability for damage or impairments to computers, mobile telephones or other user hardware or software that is caused by use of the application.
AffiliatePerformance GmbH, its graphics, logos and promotional texts are registered trademarks or merchandise designs of the company and may not be used, even as part of trademarks and/or part of domain names, in association with products or services in any other way that could lead to misapprehensions.
12. Reservation of right to change /term of contract
If AffiliatePerformance GmbH changes these General Terms and Conditions of Business then AffiliatePerformance GmbH will notify the affiliate thereof. If the affiliate does not object in due form or within the due period of notice, the amended terms and conditions of business enter into effect 2 calendar weeks after receipt of the notice at the start of a new calendar week. The objection by the customer is only compliant with the requirements of form and time, if the objection is in writing and is received by AffiliatePerformance GmbH within a week of receipt of the notice. AffiliatePerformance GmbH will inform the affiliate of the possibility of lodging an objection, its form and time limit and the legal consequences of an objection that fails to comply with the form and time requirements.
The payment for all “Facebook-2-Facebook marketing programs” is subject to change by the advertiser. The advertiser may at its own discretion change the payment for all “Facebook-2-Facebook marketing programs”.
If the advertiser changes its payment, AffiliatePerformance GmbH may correspondingly change the affiliate’s payment share and the IO. The change is effected by notification of the changed payment by e-mail. The change will become effective at midnight on the day following notification.
This contract is entered for an indefinite term. Subject to provisions to the contrary in the IO, the contract may be terminated by both parties with a period of notice of 4 weeks at the respective end of quarter.
The above is without prejudice to right of extraordinary termination.
If these GTCs or the scope of performance of the application are changed, the affiliate has the right to terminate the contract without further notice.
If the affiliate objects to a change in the GTCs or in the scope of use, then Columbus Internet GmbH has the right to terminate the contract without further notice.
13. Final provisions
These conditions of use form the entire agreement between you and AffiliatePerformance GmbH in relation to the use of the application. If a provision of these GTCs is invalid, the remaining provisions remain unaffected. The invalid provision shall be replaced by another that comes as close as possible to the meaning and purpose of the invalid provision in a legally effective manner. The same applies for any omissions.
The affiliate shall ensure that its Facebook contents are compatible with the GTCs of the advertiser or of Facebook.
14. Applicable law; responsible court and jurisdiction
When visiting and using the Facebook application the affiliate accepts that this is subject to the laws of the Federal Republic of Germany with the exclusion of contradictory provisions of international contract law.
With respect to any disputes, insofar as this is permitted, the parties agree that the sole place of jurisdiction shall be Berlin.
Berlin, d. 28. November 2011