Terms and Conditions
Version as of: 17.12.2021
TrafficPartnerB.V., Frans Erensstraat 14 A, 5921VG Venlo, the Netherlands(hereinafter referred to as "TrafficPartner") operates andmanages a network (hereinafter referred to as "Platform")on the Internet which brokers goods and services ("Products")between Partners and Advertisers, in particular by way of affiliatemarketing.
1Service Description and Subject Matter of the Contract
1.1Participants on the Platform are Partners, Advertisers andTrafficPartner. Advertisers are natural or legal persons who maketheir various own or third-party Products available on the Platform.TrafficPartner make single or bundled products (“Offers”)available to Partners on the Platform. Partners are natural or legalpersons who promote Offers on own or third-party websites, in anemail, or in the capacity of a network operator connected to yetanother Partner (hereinafter referred to as "SubPublisher"),using advertising or promotional material such as, but not limitedto, banners, product data, text links, emails or videos as part ofsearch engine marketing (hereinafter referred to as “AdvertisingMaterial”).
1.2Partners promote the Offers by means of placing affiliate linksgenerated when creating a Campaign (hereinafter referred to as“Campaign”) on own or third-party websites, in an email, or theirown network, or the like (hereinafter referred to as "AdvertisingSpace”). When a third Party, such as an end customer, performs acertain pre-determined action on the Platform (hereinafter referredto as “Conversion”), the Partner is entitled to a remuneration.Conversions eligible for remuneration are defined in the individualOffer descriptions or in the campaign creation process. It is alsopossible to remunerate combinations of various conversions.
1.3The Platform monitors and logs the conversions (hereinafter referredto as "Tracking"), whereby the Platform provides thePartner an overview thereof. The Tracking is decisive for theidentification of successful Conversions and for the calculation ofthe resulting remuneration.
1.4Participation in the Platform is free-of-charge for Partners.
2Conclusion of the Contract
2.1To participate in the Platform, Partner must be a registered member.
2.2Legal persons or natural persons (over eighteen years of age) mayregister on the Platform. TrafficPartner reserves the right to verifythe identity of the Partner. Registration with the Platform isnon-transferable.
2.3 Bycompleting the registration and accepting these Terms and Conditions(hereinafter referred to as “T&C”), Partners submit aregistration request for their participation in the Platform(creating an Account). TrafficPartner reserves the right to refuse aregistration request without citing any reasons.
2.4If TrafficPartner accepts the registration, the Partner shall receivea confirmation email. Access to the Platform and the Account will begained by clicking the activation link in the confirmation email andentering the access data. If the Partner fails to activate theAccount via the activation link the Account will be automaticallycanceled after 60 days. It is possible to re-register. Personal dataand information can be reviewed, altered on the Platform and theparticipation in the Platform can be cancelled in full.
2.5During the term of this Contract, Partner shall not be permitted toconclude Contracts for the contractual services - be it directly orindirectly - with individual advertisers of the Platform in bypassingTrafficPartner Contracts, nor shall they be allowed to leadnegotiations aimed at such a conclusion.
3Advertising and Remuneration of Offers
3.1By choosing to advertise a specific offer the Partner accepts anyadditional requirements or campaign-specific terms and conditionsmentioned in the Offer description or the Campaign creation process.This shall constitute an integral part of the Contract withTrafficPartner.
TrafficPartnershall be free to reject a Partner from advertising an Offer. Thereshall be no entitlement to admission; nor can any claims be lodgeddue to a non-admission.
3.2If the Partner is the operator of a network of Sub-Publishers, thePartner shall ensure upon registration that these T&C arecommunicated to their Sub-Publishers and that their compliancethereto shall be monitored and enforced. The Partner shall be heldliable for the conduct of its Sub-Publishers. TrafficPartner herebyreserves the right to exclude individual Sub-Publishers from theadvertising of individual Offers, or to reject them in general.
3.3The Partner shall receive a performance-related remuneration fromTrafficPartner. How high this remuneration will be in individualcases and for what kind of conversions it will be granted depends onthe specifications featured in the Offer description or Campaigncreation process.
Onlyadvertisements complying with the terms and conditions agreed upon inthis Contract and the specific Offer description or Campaign creationprocess will be paid. Budget, advertisement volume cap and any otherCampaign adjustments shall be valid after they are confirmed byTrafficPartner. Any exceedance of the caps shall not be paid.
Partnersshall have no claim to any further compensation of expenses or costs.
3.4Entitlement to payment of the performance-related remuneration shalloccur only if all of the following conditions are met:
- the advertising activity has resulted in a conversion;
- the conversion has been tracked by TrafficPartner;
- the advertising activity and the conversion have been approved by the Advertiser and confirmed by TrafficPartner;
- there is no misuse within the meaning of para. 5 of these T&C.
3.5TrafficPartner may terminate, change or modify an Offer or Campaign,or the remuneration conditions thereof with 24 hours notice. A claimon the part of the Partner for the operation of an Offer or Campaignat certain conditions shall not be possible.
4Performance of Services by TrafficPartner
4.1TrafficPartner strives continuously to further develop the Platform.In the course of such development, individual applications may beenhanced, expanded or slightly modified by TrafficPartner.TrafficPartner is entitled, but not obliged, to develop the Platformat its sole discretion and to adjust it according to technicaldevelopments.
4.2Due to the execution of necessary maintenance work or otherenhancements, certain functions may be temporarily unavailable. Thisalso entails partial or complete discontinuation of functions orother parts of the service, insofar as this does not lead to atransformation of the Platform's services which is more thanmarginal. The right to alter services shall be reserved in particularif such alteration is customary in the industry or if required bychanges in the law or by a court order.
4.3TrafficPartner is also entitled to assign responsibility forperforming its own services or portions thereof to third-partyservice providers or agents.
5Obligations of Partner
5.1.1The Partner hereby warrants that the data provided at registration iscorrect and complete. Should the data provided change at any timeafter the registration, the Partner must modify the data stored onthe Platform accordingly.
5.1.2The Partner hereby undertakes to keep the Platform access data (emailaddress and password) confidential, and not to communicate it to athird Party and to keep it safe in such a way that third Parties willnot gain knowledge thereof. No third Party should be allowed to usethe Platform interfaces via this access data. If there is a reason tosuspect that third Parties have gained knowledge of the access data,TrafficPartner must be notified immediately.
5.2.1The Partner guarantees to hold the necessary rights for the marketingof the Advertising Space.
5.2.2When advertising Offers or incorporating corresponding advertisementsinto the Advertising Space, the Partner guarantees that allpromotional activities engaged in
- do not violate any third-party rights (especially copyright, trademark, personality or similar rights);
- do not breach other statutory provisions (particularly competition law) or
- are not placed in any illegal contexts, including without limitation contexts of illegal file sharing or other copyright infringing pages, pages promoting or otherwise displaying child pornography, racism, violence, abuse, hate speech or any other indecent, libelous or defamatory contents.
5.2.3Traffic restrictions specified in Offers or in the Campaign creationprocess have to be explicitly followed by the Partner. Violation oftraffic restrictions constitutes a significant breach of Contract.
Thefollowing traffic restrictions apply to any and all advertisingactivity:
- Spyware is not allowed.
- VPN and Proxy Traffic are not allowed.
- Adware, Incentivized Traffic and Virtual Currency Traffic are only allowed if expressly mentioned in an Offer or Campaign creation process.
- Streaming or Torrent sites are not allowed.
- SMS marketing is not allowed unless expressly mentioned in the Offer or Campaign creation process.
5.3.1Emails containing Advertising Material will be sent only toindividuals who have given prior explicit consent to receivingpromotional emails. The Partner must be able to show complete proofof when and where the relevant consent via Double-Opt-In (“DOI”)has been collected. The DOI consent has to be collected separatelyfrom other declarations.
5.3.2.A comparison of email blacklists is made before every email dispatch(including blacklists maintained by the Partner or its Sub-Publishersas well as blacklists maintained by TrafficPartner or theAdvertiser). If the Partner uses multiple lists or alternativelyworks with multiple Sub-Publishers, double dispatches to the sameemail address must be avoided.
5.3.3Emails on behalf of TrafficPartner or the Advertiser are to be sentexclusively as recommendation emails, meaning that the Partner actsas the dispatcher. This must be clearly stated and recognizable.
5.3.4The sender address is that of the Partner. The name and senderaddress contain neither product nor service descriptions, nor thenames of the Advertiser or TrafficPartner.
5.3.5An imprint must be added to the footer of every email. The imprinthas to be easily identifiable, contain the legally requiredinformation of the Partner or its Sub-Publisher andnot be reachableonly via a link. The imprint may include information of Partner orits Sub-Publisher. The imprint may not include information regardingthe Advertiser or TrafficPartner.
5.3.6An unsubscribe-text as well as an unsubscribe-link must be providedby the Partner or its Sub-Publisher. Unsubscribing must be possiblewithout detours; Double-Opt-Out or compulsory login is not allowed.The Partner agrees to disclose any email address whose owner hasclicked the unsubscribe link in order to avoid future legal action byrecipients who have expressed that they do not wish to receive anymore advertising emails to TrafficPartner.
5.3.7The Partner must include the email address, which is mentioned in theoffer, in the mailing list that is going to be used by the Partner.
5.3.8The Partner will observe the following restrictions and guidelinesconcerning customer complaints:
- A functioning reply address and inbox must be ensured. The content of the inbox of the reply addresses must not be deleted.
- Questions and complaints shall be answered within 48 hours during working days.
- If a complaint regarding a dispatch has been directed towards the Advertiser or TrafficPartner, the complaint will be forwarded to the Partner. The Partner guarantees to answer the end user or a respective agency of the end user within 24 working hours.
- For every forwarded customer request the Partner must provide TrafficPartner with a confirmation of a valid DOI consent.
- Substantiated proof about the DOI will be provided by the Partner to the end user or the respective agency.
- Every email must contain a support address or a complaint or contact form for the customer.
5.4.1Any form of misuse, in particular the acquisition of conversions byunfair methods or inadmissible means which violate either theapplicable law, these T&C or any additional Offer-specificconditions are prohibited.
5.4.2In particular, the Partner shall be prohibited from attempting toobtain remuneration by means of inducing one or more of the followingpractices - whether themselves personally or through a third Party -by means of the Advertising Material provided as part ofparticipation on the Platform, or using tracking links and/or othertechnical means:
- Feigning conversions that have not actually been created, e.g. by means of an unauthorized provision of third-party data or by the provision of false or non-existing data when ordering services or registering online;
- Using forms of advertising that enable tracking but do not display the Advertising Material in a perceptible manner, or display the Advertising Material in any manner or size not specified by the Advertiser or
- Using search terms legally belonging to the Advertiser or third Parties and especially those protected under trademark law in search engines, advertisements or marketing of Advertising Spaces without express prior consent from the Advertiser.
5.5Violation of Contractual or Legal Obligations
5.5.1Any form of misuse may lead to an immediate suspension of thePartner's account. If advertising is not complying with these T&C,remuneration will not be paid.
5.5.2In case of customer complaints or violations of third-party rights bythe Partner, TrafficPartner and the Advertiser have the explicitright to disclose the identity of the Partner to the offended Party.
5.5.3The Partner agrees to pay TrafficPartner for each case ofnon-compliance with the provisions of this Contract a contractualpenalty whose amount is to be determined at TrafficPartner’s solediscretion and is oriented to the circumstances of the specificindividual case and amounting up to 10.000 EUR.
6.1TrafficPartner sets up the Partner’s account through which thepayment of remuneration is settled. Billing is settled over thecourse of a credit note procedure where TrafficPartner credits therespective remuneration through the selected payment method of thePartner. No interest will be paid on the credit balance in thePartner's account. In achieving the minimum payout amount of 50 EUR(or 100 EUR for an account not operating under the IBAN/BIC system) acorresponding electronic credit note shall be issued at the latest 15days after the conclusion of each billing period. The Partner mayview and download the credit note from the Platform.
6.2If the minimum payout amount has not been attained by the end of themonth, the credit balance will remain in the Partner's account and itwill be carried forward onto the next month. A payment of a balancebelow the minimum payout amount can be made on a request by thePartner against reimbursement of all bank fees. The fee shall beretained from the amount to be paid.
6.3The release of a credit note can only take place if the Partner'saccount on the Platform has been reviewed and legitimized withrespect to all the data required for the payment. The detailsrequired are listed on the Platform where relevant documents must beuploaded for verification. TrafficPartner can only consider creditnotes released in due time.
7Contract Term and Termination
7.1The Contract regarding the participation on the Platform is concludedfor an indefinite term. The parties may terminate the Contract inwriting at any time.
7.2Conversions which have been generated by the Partner up to the dateof termination shall be processed after the receipt of thetermination notice in accordance with the provisions of thisContract. Upon the termination of this Contract any credit balanceremaining shall be disbursed to the Partner during the next billingcycle. If at the time of Contract termination, the credit balance is5 EUR or less, no funds shall be disbursed. A contractual penaltyshall be retained if the Partner's participation was terminated dueto misuse.
8.1The protection of personal data is of great importance toTrafficPartner - simultaneously, the collection, processing and useof such data is an essential requirement for the operation ofPlatform. TrafficPartner collects, processes and uses personal dataexclusively in compliance with the applicable data privacylegislation. The parties agree to the processing of personal data inaccordance with the requirements of Data Protection Laws.
8.2TrafficPartner is therefore entitled to collect personal data and touse it to the extent necessary to allow users participation on thePlatform:
TrafficPartnershall particularly collect, process and use the data requested atregistration as well as the data accruing during participation in theNetwork.
TrafficPartnershall also use the contact details to contact Partner via email abouttheir participation in the Platform. The reception of the so-calledoperator messages - emails from the operator of the network - can bedisabled in the Platform interface. However, TrafficPartnerrecommends activating the reception, since essential information suchas changes in the remuneration scheme shall be communicated this way.
8.3If a user consent for cookies or other technologies under the termsof the GDPR or other EU law is needed both parties commit to acquireit.
8.4The Partner must take measuresin accordance to GDPR, in particular Article 12,13,14,15 and 29, tomake the handling and processing of personal data in a transparentand easily accessible manner in relation to the data subject.
8.5The parties guarantee the security and confidentiality of personaldata and defines adequate technical and organizational measuresaccordingly (Art. 32 GDPR).
8.6The parties guarantee that personal data is submitted within EU only,or that other agreements that fit with GDPR and are valid and active(adequatedata privacy laws) -like Standard contractual clauses for international transfers.
8.7If a sub-processor will be used inrelation to the GDPR, theprocessor remains fully liable to the controller for the performanceof the sub-processor’s obligation and making the informationabout the sub-processor available to the customer. A notificationbetween the parties is accepted.
8.8The parties cooperate to provide information related to personaldata, particularly for the right of access, erasure (Art.13-20 GDPR),etc.
8.9If either party becomes aware of a personal data breach both partiescommit to informing the other (what kind of data and how much), aswell as describing the measures taken.
9Rights of Use and Copyrights
9.1The Platform and its applications are protected by intellectualproperty rights or other statutory provisions. TrafficPartner grantsthe Partner a revocable, non-exclusive, non-transferable right to usethe applications and Advertising Material provided as part of thePlatform and the data contained therein, for the purpose ofparticipation in the Platform. In case of a termination of thisContract - regardless of the grounds therefore - the right of useshall be revoked.
9.2Partners must neither visually, nor technically or with regard totheir content, modify the Advertising Material and their sourcecodes, nor are they allowed to process the Advertising Material andtheir source codes in any other way, unless TrafficPartner or therespective Advertiser have previously granted their consent.
Incase the Partner prefers to use its own Advertising Material, thePartner must have the copyright or a license for each part of thematerial. Conversions generated by using Advertising Material thatdoes not comply with this section will not be paid.
9.3Partners shall not be granted any further rights of use. Partnersshall not be entitled to transmit the application or the datacontained therein to third parties, nor are they entitled to allowthird parties to access such applications or data, nor may theymodify or otherwise process such applications or data, incorporatethem into another work, or use them to create data bases and/orinformation services of their own.
9.4Under no circumstances will the Partner be entitled to useTrafficPartner’s, Advertisers’ or clients’ name, brand or logowithout prior written consent.
10Limitation of Liability
10.1TrafficPartner shall not be held liable for the content ofthird-party websites, nor shall it be liable for any damages or otherfailures resulting from any defects of the participants' software,hardware or their incompatibility; furthermore, TrafficPartner shallalso not be liable for damages resulting from services not beingavailable.
10.2TrafficPartner shall - irrespective of the legal grounds - only beliable
- in the case of intent or gross negligence of a legal representative or other vicarious agents;
- in the case of any culpable infringement of an essential contractual obligation (whereby the abstract concept of the essential contractual obligation denotes such an obligation, the proper implementation of which renders the Contract feasible in the first place and on which fulfilment the other Party is allowed to rely) due to a delayed performance or the impossibility to perform.
10.3Liability of TrafficPartner shall be limited to the amount of thetypically foreseeable damage for financial losses and damages toproperty.
10.4The above limitations of liability shall not apply to cases ofmandatory statutory liability, in particular, liability under productliability law, liability for a guarantee that has been assumed, andliability for intentional or negligent injury to life, limb orhealth.
10.5The utilization of the Platform and its applications requires the useof special technical systems such as end-user devices, softwareprograms, transmission networks, telecommunications and otherservices provided by third parties, all of which may entail furthercosts. The Platform does not provide such end-user devices, softwareprograms, communication channels, telecommunications services orother services and, therefore, the Platform shall not assume anyliability for such services provided by third parties.
Compliancewith this Contract is of considerable importance for the properoperation of Platform. In the event of a serious breach of Contract,TrafficPartner reserves the right to take further legal measures inaddition to terminating the Contract.
ThePartner shall indemnify and hold harmless TrafficPartner and itsAdvertisers against any and all claims for damages, liability claims,warning notices, cease-and-desist declarations by third parties andother claims, as well as any and all costs, efforts and expendituresassociated therewith as arising from behavior (including omissions)by the Partner as the root cause thereof. This applies particularlyto cases of infringement of copyright, trademark rights, competitionrights, data protection and privacy rights or rights of thirdparties.
Suchcosts include the compensation of damages of third parties andreimbursement of further expenses. TrafficPartner is entitled todemand advance payments from the Partner regarding such costs.
Exceptas otherwise provided in this Contract or with the consent of thedisclosing Party, the receiving Party agrees that all information,including but not limited to the terms of this Contract, business andfinancial information, user data, customer and vendor lists,technical, pricing and sales information, concerning advertiser orany of their affiliates and business partners provided by or onbehalf of any of them shall remain strictly confidential and secretand shall not be utilized, directly or indirectly, by the receivingParty for any purpose other than participating in the Platform,except and solely to the extent that any such information isgenerally known or available to the public through a source otherthan the disclosing Party. The provision of this clause shall survivetermination of this Contract.
13Amendment of the T&C
13.1TrafficPartner hereby reserves the right at each time to amend suchprovisions of the present T&C that are minor in scope or nature;and to do so without citing any reasons, provided such modificationsdo not lead to the Contract being restructured in its integrity. Themodified conditions shall be communicated by email at least two weeksprior to their date of entering into force. If the Partner does notobject in text form to the modifications of the T&C within fourweeks of the receipt of the email informing them thereof, then therespective modifications shall be deemed accepted. TrafficPartnershall specifically indicate the timeframe for making such objectionswith clear reference to the four-week deadline.
13.2TrafficPartner is entitled to suspend the Partner’s Account on theplatform, if the Partner objects to amendments of the T&C. Thesuspension of the account may be maintained until TrafficPartner andthe Partner have concluded a new Contract or until the Partner hasaccepted the amended T&C.
14.1This Contract and its attachments set out the whole agreement betweenthe Parties and supersede any prior Contract (whether oral orwritten) relating to the proposed business relation. No amendment ofthis Contract (or of any other attachment) shall be valid unless itis in writing and signed by all Parties. Contradicting T&C of thePartner shall only be valid upon written verification byTrafficPartner.
14.2The rights and duties under the present Contract may only betransferred with the prior written consent of TrafficPartner.
14.3The present Contract does not establish a company, it does notauthorize either of the Parties to make any legally bindingdeclarations on behalf of both Parties jointly, or on behalf of therespective other Party, nor does it authorize either Party to placethe respective other Party under any obligation or to represent it inany other way.
14.4The law of the Federal Republic of Germany shall apply exclusively tothese T&C and to the contractual relationship with the Partner.
14.5The agreed place of jurisdiction shall be Hamburg, provided that thePartner is a merchant as defined in the German Commercial Code.
14.6Should any individual provision of these T&C be or becomeinvalid, as a whole or in part, the validity of the remainingprovisions shall be unaffected by such circumstances. The invalidprovision shall be replaced by a new provision that is legallyeffective and comes closest, in the usual understanding, to theeconomic intent and purpose of the invalid provision.