The English translation of the Affiliate GTB serves auxiliary purposes. Only the German version is legally binding.

Affiliate General Terms of Business

  1. Scope

(1)    These terms of participation (General Terms of Business, “GTB”) apply to the contractual relationship between MessengerPeople GmbH, Herzog-Heinrich-Str. 9, 80336 Munich (“MP”) and a contracting partner (“Partner”) of the MessengerPeople Affiliate Programme (“Affiliate Programme”).

(2)     MP renders its services on the exclusive basis of these GTB. Partner’s own terms of business will not apply even if MP does not expressly object to their application.

(3)     The GTB are directed only toward entrepreneurs for the purposes of § 14 BGB. Consumers may not participate in the Affiliate Programme.

  1. Contract conclusion

(1)     A contract between MP and Partner for procuring MP products for end clients is formed exclusively via the MP online application procedure under MessengerPeople.com/partner/affiliate-program/. By registering, Partner declares its desire to participate in the Affiliate Programme and accepts these GTB in order to do so. A contract will be formed only if MP expressly accepts the offer.

(2)     No claim exists to participate in the Affiliate Programme and conclude a contract with MP. MP may reject individual partners at any time and without providing grounds.

  1. Subject matter of the contract

(1)     The subject matter of the contract is the participation in the Affiliate Programme, which aims to increase sales of MP products on the MP website. Partner may participate in the Affiliate Programme at no charge. For this purpose, MP will at its discretion provide Partner with a selection of promotional materials about the Partner Programme. At the same time, MP may offer various programmes (“Campaigns”) to this end.

(2)     Partner will be responsible for placing the Promotional Materials approved for it on its website which has been registered and approved for the Affiliate Programme (“Partner Website”). Partner will decide whether and how long it will place the promotional materials on the Partner Website. Partner may remove those promotional materials at any time.

(3)     Partner will receive a brokerage commission, which depends on the scope and real value of the service, for advertising and successfully brokering orders. The details are revealed in the description of the individual campaigns in the Partner Programme and item 7 of these GTB.

(4)     The Affiliate Programme does not establish any contractual relationship between the contracting parties that goes beyond this contract. Partner is a company who sells MP products to end clients on Partner’s behalf, based on these GTB. Partner is a broker. Partner is not a commercial agent. Partner is not obligated to continually strive to distribute the MP products. Partner acts as an independent merchant (toward the end client and toward MP), on its own responsibility, without specifications or instructions, and only in accordance with the conditions of these GTB. Partner may not represent MP in legal transactions.

  1. Operating principle of the Partner Programme

(1)     Partner will register for the Affiliate Programme with the data requested during the application. After Partner registers successfully, a Partner account will be set up through which Partner can manage its activities.

(2)     MP will provide Partner with a specific HTML code for links and other promotional materials for the Campaigns approved by MP, with which users of the Partner Websites can be identified whenever they click on the link. Partner will integrate this HTML code in its website to enable tracking.

(3)     Through the Partner account, Partner will also be given access to certain statistical data established by MP about the promotional materials it is using.

  1. Obligations of MP

(1)     MP will at its discretion provide Partner with a selection of promotional materials (e.g., advertising banners, text links, videos and pictures) (“Promotional Materials”) for individual Campaigns.

(2)     MP will ensure that visitors who are directed to the MP website via the Promotional Materials which Partner integrates into its website are suitably tracked (“Partner Leads”). MP will also ensure that any orders placed through the Partner Leads (“Sales”) are assigned to Partner.

(3)     MP operates the website and the services offered on it (such as providing product data) at its discretion and within the limits of available technology. Within this context, MP does not guarantee that the website will be free from errors or available without interruption. The quality and correctness of the products and Promotional Materials offered on the MP website remain at MP’s sole discretion.

(4)     Moreover, MP will pay the remuneration in accordance with item 7 under the conditions stipulated there.

  1. Partner’s rights and obligations

(1)     As long as Partner participates in the Affiliate Programme, Partner will be given the non-exclusive right to distribute MP products in their current state.

(2)     Partner may not fully or partially transfer to third parties the distribution rights in accordance with paragraph 1.

(3)     Partner may not conclude contracts with end clients concerning MP products. Only MP may conclude contracts with end clients.

(4)     Partner may include the Promotional Materials only in the Partner Website. Partner may not connect the provided links with other advertising media (such as social media) or alter the Promotional Materials. The Promotional Materials may be used on the Partner Website only for the purposes provided for in this contract. To this end, see also item 6.8.

(5)     Partner is itself responsible for the content and ongoing operations of the Partner Website, and will not place on that website any content which breaches applicable law, common decency or third-party rights, or is likely to damage MP’s reputation. MP is entitled (but not obligated) to inspect the Partner Website. Partner is particularly forbidden from distributing content which depicts, concerns or contains

  • racism,
  • the glorification of violence or extremism of any kind,
  • calls for or incitements of criminal acts or breaches of statutes, threats against life, limb or property,
  • stirring up hatred against persons or companies,
  • statements which infringe personal privacy, calumny, defamatory statements and malicious gossip about users and third parties, as well as breaches of fair trading law,
  • copyright-infringing content or other breaches of intellectual property rights or
  • sexual content, sexual harassment of users or third parties.

The Partner Website may not include such content nor contain links to websites that do.

(6)     Any form of misuse (i.e., generating Leads or Sales by using unethical methods or impermissible means which breach applicable law or these GTB) is forbidden. In particular, Partner may not engage or have third parties engage in any of the following practices to attempt to generate Leads or Sales or to ensure that Sales are assigned to Partner:

  • Misrepresentation regarding Leads or Sales which did not actually occur—for example, by providing third-party, false or non-existent data when goods are ordered on the MP website,
  • Using forms of advertising which enable tracking but do not indicate the Promotional Materials discernibly, in the prescribed form or size, or at all.
  • Cookie dropping: Cookies may not be placed when the website is visited unless the Partner Website’s user has previously clicked on the Promotional Materials voluntarily and deliberately,
  • Other forms of affiliate fraud (especially cookie spamming, forced clicks, or affiliate hopping) as well as the use of layers, add-ons, iFrames and post-view technology to ensure that Leads are increased,
  • Using terms which are protected for MP or third parties under the law, especially trademark law, in search engines, during ad placements, or ads for the Partner Website, for example, without MP’s express prior written consent. Partner is particularly forbidden from keeping websites in the internet which could lead to confusion with MP or the products it offers. In particular, Partner may not copy MP’s website, landing pages, or online presence in other respects, or take over any of MP’s graphics, text or other content. Partner will avoid giving the impression that the Partner Website is an MP project or that its operator is economically tied to MP in a manner going beyond the Affiliate Programme or this contract. Partner may not use MP’s logos, trademarks, or materials or content from MP’s online presence, without MP’s prior written approval.

(7)     Partner will also operate the Partner Website in accordance with applicable law, and in particular will provide a proper legal notice.

(8)     Email ads which contain Promotional Materials or otherwise advertise for MP will be used only if MP has approved them in advance, all addressees have expressly agreed to receive them, and their email addresses have been verified using a documented double opt-in procedure.

(9) Partner will remove Promotional Materials from the Partner Website without undue delay at MP’s request. This especially applies to websites on which MP does not wish or no longer wishes the Promotional Materials to be included, for whatever reason.

(10) Partner will ensure that ads on the Partner Website do not refer to MP or its products. In particular, Partner will not place any context-based ads (especially Google AdWords or AdSense) which contain MP’s name, trade name or trademarks, or deliver corresponding keywords due to usage. The same applies to the names of MP’s products.

(11) Partner will not make any electronic attacks on MP’s tracking system or websites. In particular, “electronic attacks” means attempts to surmount, circumvent or otherwise override the tracking system’s security mechanisms, using computer programmes to automatically read data, using or spreading viruses, worms, Trojans, brute force attacks, spam or miscellaneous links, programmes or procedures which could damage the tracking system, Partner Programme or individual participants of the Partner Programme.

  1. Remuneration

(1)     Partner will receive a performance-based remuneration from MP for orders carried out on MP’s website through Partner Leads.

(2)     The claim to the payment of the remuneration arises only under the following conditions:

      • an end client places an order with MP due to Partner’s advertising activity,
      • the order was logged (“tracked”) by MP,
      • MP has released and confirmed the order, and
      • no misuse exists for the purposes of item 6.6 of these GTB.

(3)     An “order” is an order which is generated on MP’s website by an end client, completely executed, and paid for by the end client. Reverse transactions made for whatever reason will not be deemed an order if the end client has not paid or their payments are refunded. Reverse transactions which occur more than eight weeks after the end client has paid will not be considered.

(4)     Orders of Partner or its members will not incur a remuneration obligation.

(5)     Orders formed on the basis of Partner Leads which were generated via Partner Websites or other advertising spaces in which MP has asked Partner to remove the Promotional Materials will not incur a remuneration obligation. This will apply from the time the request is made.

(6)     The question of whether an order is based on a Partner Lead will be answered by the tracking system used by MP. Subject to other stipulations in the Affiliate Programme, or for individual Campaigns, the principle “last cookie wins” will apply to a cookie duration of 30 days. MP will not be obligated to pay if and to the extent that the tracking system fails or another malfunction occurs which means that Leads or orders cannot be attributed to individual partners at all, or only with great effort.

(7)     An end client acquired via the Affiliate Programme must remain an MP client for at least three months; otherwise, Partner will have no remuneration claim.

(8)     The amount of the remuneration depends on the commission specified in the respective Campaign at the time the order was placed. Unless otherwise specified, a one-time commission of 80% of the monthly net price of the respective order will apply.

(9) All commissions indicated are to be understood as net remunerations, and will be paid out in addition to VAT.

      1. Invoicing

(1)     MP will provide Partner with an invoice of the remuneration claim in its Partner account. Partner will review that invoice without undue delay. Any objections Partner has to an invoice must be asserted in writing to MP within four weeks. After that period expires, the invoice will be deemed correct.

(2)     The invoice will be issued whenever a sales limit of 100 euros is exceeded at the end of the current month. A payout will occur eight weeks after the end client makes a payment (by direct debit), or after the end client receives the third invoice (if “by invoice” is the payment method) and has paid the first.

(3)     The payment will be made via bank transfer, with debt-discharging effect, into the bank connection Partner filed with the Partner account. Any banking fees (for bank connections abroad, for example) will be borne by Partner.

      1. Liability

(1)     MP will pay damage compensation and reimburse futile expenses, regardless of legal grounds, based only on the following rules.

(2)     MP will be liable without restriction for intent or gross negligence, for damages based on the Product Liability Act, and for injury to life, limb or health.

(3)     If MP breaches an essential contractual obligation due to slight negligence, MP will be liable for the damages foreseeable at contract conclusion which are typical of that type of contract. An obligation is “essential” (or “cardinal”) if it must be fulfilled for the contract to be properly executed and the Partner may normally rely on its being complied with.

(4)     MP will not be liable beyond this.

(5) The preceding disclaimer also applies to the personal liability of MP’s employees, representatives and organs.

      1. Right to exemption; Contractual penalty

(1)     If Partner’s actions in connection with the Affiliate Programme breach the law or third-party rights, Partner will indemnify MP and MP’s employees or delegates from all third-party claims arising therefrom. Moreover, Partner will compensate all costs which MP incurs due to the assertion of such third-party claims. This includes costs for reasonable legal defence. The preceding regulation does not apply if Partner was not responsible for the legal infringement or breach of third-party rights.

(2)     For each case of misuse in accordance with item 6.6, Partner will pay a contractual penalty to be stipulated by MP at that party’s reasonable discretion and reviewed by a court in the event of dispute. The contractual penalty may not be more than twelve times greater than Partner’s strongest monthly revenue within the last six months before the misuse. This regulation does not affect any further damage compensation claims. The contractual penalty will be credited to such damage compensation claims.

      1. Usage rights

(1)     The Promotional Materials and MP’s other content are protected by copyright, other industrial property rights, or both. MP grants Partner a simple, non-exclusive right to use the Promotional Materials to sell the MP products as part of the Affiliate Programme, for the duration and purpose of this contract.

(2)     Any change, duplication, dissemination or public forwarding of the Promotional Materials, or any part of that data and content which is deemed to be significant in type and quantity, which goes beyond that scope, requires MP’s prior written consent.

      1. Confidentiality

(1)     Partner will not disclose, exploit or forward to third parties any knowledge of MP’s trade or business secrets or other confidential information, and will use such secrets and information only for the contractual purposes. Those obligations will be unlimited in time and will survive this contract. If information from MP is labelled as confidential, it will be irrefutably assumed that that information constitutes trade or business secrets.

(2)     Partner will treat the content of this contract and associated documents as confidential (as trade and business secrets).

(3)     Partner will obligate its employees, and other people whose services Partner uses to fulfil its contractual obligations, in a manner corresponding to the preceding paragraphs 1 and 2.

      1. Contractual period; Contract termination; Blocking

(1)     The contract will be effective for an indefinite period. Either party may terminate it at any time without complying with a notice period or giving reasons.

(2)     In addition to and beyond this, either contracting party may end the contractual relationship through extraordinary termination for cause. In particular, MP is entitled to extraordinary termination for cause if:

      • partner breaches contractual obligations, especially items 6.5, 6.7 or 6.11,
      • contractual obligations are breached, and such breach is not remedied or discontinued despite MP’s request to that effect,
      • misuse for the purposes of 6.6 occurs.

(3)     Termination may be declared via email. A termination emailed by MP will be deemed received on the day on which it is sent to the email address indicated by Partner in the customer account. MP may also declare termination by limiting access to the customer account. Partner may also declare termination by deleting the Partner Account. The contract will end when the termination is received.

(4)     After the contract ends, Partner will remove all of MP’s Promotional Materials, links and content from the Partner Website without undue delay. This also applies to websites and other advertising media into which Partner has integrated the Promotional Materials without authorisation.

(5)     Orders generated after the contract has ended will not bring about a remuneration obligation.

(6)     Instead of termination, MP may also block the Partner Account in the cases described under item 13.2. This applies even if merely a justified suspicion of misuse exists in accordance with item 6.6. MP will notify Partner of the reason for the block, and cancel the block if the reasons which led to it are cleared up (and remedied, as the case may be). Leads generated during a block will not bring about a remuneration obligation.

      1. Final provisions

(1)     Finding contractual regulations to be invalid will not invalidate the rest of the contract.

(2)     MP reserves the right to amend these GTB at any time. Partner will be notified by email of any amendments. If Partner does not agree to the amendments, Partner may notify MP thereof until expiry of four weeks after the amendment notification is received. In this case, MP will have a special right of termination. If no such notification is sent during that period, the amendments are deemed accepted and will enter effect when the period expires.

(3)     This contract is subject exclusively to German law.

(4) The exclusive place of jurisdiction is Munich, Germany.

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