GENERAL TERMS AND CONDITIONS
concerning the services of “CWC Performance”
as of September 2013
Claudia Wünsch Communication GmbH
(hereinafter referred to as „CWC GmbH“)
1.1. The following General Terms and Conditions (GTC) in the version valid at the time a contract is concluded shall apply exclusively
to contracts between CWC GmbH and the contractual partner (hereinafter referred to as „Client“) regarding services in the context of performance marketing (hereinafter referred to as “CWC Performance”).
1.2. Contradictory terms and conditions of the Client shall not apply, unless where CWC GmbH consents in writing to their application.
2. Subject matter and conclusion of the contract
2.1. The subject matter of this contract are services concerning performance marketing called “CWC Performance” by CWC GmbH in the countries agreed on with the Client. CWC Performance Performance by CWC GmbH includes the setup management of the affiliate program, the affiliate search and management, the provision management and provision on the basis of an offer by CWC GmbH and this GTC. CWC GmbH will seek to assist the Client with generating KPIs (f.e. Sales, Clicks, Views, CpM) as specified in the offer. A specific number of KPIs is not owed.
2.2. In the terms of this GTC KPIs are defined as follows:
2.2.1. A „Sale“ means any purchase of a product or service that has been initiated via any Link set by CWC GmbH and was tracked in respect section 6.
2.2.2. A “Lead” means any contacting transaction by a customer as specified in the offer (f.e. request for further information, participate in a competition,
register for a newsletter) that has been initiated via any Link set by CWC GmbH and was tracked as indicated in section 6.
2.2.3. A “Click” in terms of this GTC means any click on the advertising media that was set by CWC GmbH and was tracked as indicated in section 6.
2.2.4. A “CpM” (cost per thousand impressions) means any banner placement by CWC GmbH in the form and amount specified in the offer.
2.3. As specified in the offer CWC Performance is agreed either as a full management service using the affiliate network of CWC GmbH or a third party affiliate network or as an agency service.
2.4. By sending a written order, the Client applies for the conclusion of a contract. The subject matter of the application is an offer by CWC GmbH that includes this GTC. An order is accepted by CWC GmbH following its receipt and review by sending an appropriate notice to the Client or by CWC GmbH starting to provide the service.
3. General rights and obligations of CWC GmbH
3.1. CWC GmbH shall provide the services agreed on in the respective offer and specified in the attached “Schedule A” and take the Client’s rights, legally protected goods and interests into account when providing the services.
3.2. CWC GmbH shall be entitled to advertise with the fact that the Client has placed an order with CWC GmbH and to this end shall be allowed to use the Client’s logos and similar items in (online or offline) reference lists even after the end of the contract.
3.3. Unless otherwise agreed upon in writing, CWC GmbH shall be entitled during the term and after the end of the contract to accept and process orders by clients active in the same or similar industry.
3.4. In case of a reasonable suspicion that the Client has caused a material breach of his obligations as stated in article 4 of this GTC, CWC GmbH reserves its’ right to temporarily or permanently suspend the Client’s access, use or benefit of any or all agreed services by CWC GmbH. The suspension shall be reversed if the Client is able to disprove the suspicion. The rights of termination of article 10 of this GTC remain unaffected.
3.5. CWC GmbH shall be entitled to use third party affiliate networks and external serviceprovider to provide and perform the agreed services and to exchange third party affiliate networks, external serviceprovider and individuals used to provide the services agreed upon without the express consent of the Client, provided this is acceptable to the Client. When selecting the persons used to perform the agreed services, CWC GmbH shall take reasonable account of the Client’s interests.
3.6. Until explicitly cancelled in writing the Client authorises CWC GmbH to take all reasonable actions in context of this agreement in relation to any publishers and third party affiliate networks.
4. General rights and obligations of the Client
4.1. General duties to cooperate
4.1.1. The Client undertakes to support CWC GmbH in the best possible way and comprehensively in the performance of the contractually agreed services. This duty of cooperation shall in particular include the timely hand-over of necessary information (f.e. advertising media, content, etc.) and documents as well as immediate information about modifications of its products, services or processes if these might influence on the agreed affiliate services.
4.1.2. The Client shall bindingly name at least one contact for CWC GmbH who shall be authorised and able to make all decisions to be made in the context of this contract and communicate them to CWC GmbH.
4.1.3. The Client may not cooperate with a publisher partner brokered by CWC GmbH within 6 months after determination of this contract.
4.2. Third Party Affiliate Networks
The following shall apply in addition where the parties agree on using a third party affiliate network:
4.2.1. The Client agrees to pay any and all payment obligations owing and otherwise perform its obligations under any of its engagements as contracted with any network in accordance with the networks’ affiliate marketing program terms and conditions agreed upon and this GTC.
4.3. Access data
The following shall apply in addition where the Client receives access data to campaigns and/ or affiliate networks by CWC GmbH:
4.3.1. CWC GmbH shall inform the Client of the individual access data in due time after conclusion of the contract.
4.3.2. The Client shall store its access data carefully and protect it against third-party access. The Client shall accept that all actions taken by using the access data shall be regarded as actions taken by the Client. The Client shall not be entitled to disclose its access data to a third party.
4.3.3. Where the Client, with the consent of CWC GmbH, gives access data to a third party (e.g. employees, service providers or customers), the Client shall be responsible for all actions such a third party takes using the access data. The Client shall explain the meaning of the actions which can be taken, oblige the third party to store the access data carefully and protect it against third-party access and prohibit disclosure of the access data to other persons in writing. The Client shall accept that all actions taken by using this access data as well shall be regarded as actions taken by the Client.
4.4. Payment of the remuneration
4.4.1. The Client shall be obliged to pay to CWC GmbH the agreed remuneration when due subject to the provisions of section 9 hereof.
4.5.1. It shall be for the Client to ensure that all measures adopted in fulfilment of this agreement, including websites, advertising media, links and keywords used, comply with the applicable legal provisions.
4.6.1. The Client shall indemnify CWC GmbH from any and all claims which may be raised against it by a third party based on an alleged or actual infringement of a right and/or any third-party rights and undertakes to reimburse CWC GmbH for any costs which CWC GmbH may incur due to such claims by a third party. Reimbursable costs shall in particular include the costs of suitable legal action and legal defence.
5. Publisher management
5.1. Multi network publisher’s management
5.1.1. CWC GmbH will manage the Client’s publishers and online advertising campaigns within private programs or private networks as agreed in the offer.
5.1.2. CWC GmbH shall be at liberty to use its own affiliate network and/ or work with different tracking platforms to comply with its duties.
5.1.3. The acceptance of a publisher shall be at CWC GmbH’s choice. The Client may refuse a publisher with comprehensible cause only and inform CWC GmbH immediately. CWC GmbH will suspend the publisher from the Clients network within a reasonable period of time.
5.1.4. CWC GmbH is not obligated to verify any publisher, his website or concrete use of advertising media without a good cause. If the Client suspects or determines fraud in form of irregularities in the context of link abuse, faked Sales, Cookie-dropping, Adware, etc., the Client must inform CWC GmbH immediately. The Client therefore may not refuse his performance of duty from this contract or demand damages for damages caused by fraud. This does not apply if CWC GmbH is responsible for the breach of duty.
6.1. The parties agree to measure the KPIs (Sales, Clicks, Views) of this cooperation on the basis of tracking procedures only. Therefore a tracking system chosen by CWC GmbH will be used to identify KPIs on the Client’s websites.
6.2. If as part of CWC Performance CWC GmbH is obligated to help generate Sales the Client may reverse any tracked Sale that has been cancelled by a consumer within his legal consumer right of rescission within 40 days since the Sale has been tracked, unless agreed otherwise in writing. If the Client does not reverse a Sale within this term in a written form CWC GmbH shall be entitled to assume that the Sale is confirmed by the Client.
6.3. The Client undertakes to give its comprehensive cooperation for the tracking. In particular, the Client shall integrate the appropriate tracking codes on the target pages as scheduled and specified by CWC GmbH and ensure the permanent and reliable delivery of the tracking codes.
6.4. The Client will submit any Data derived from the transactions driven by distribution partners to CWC GmbH, in the format and frequency required by CWC GmbH.
6.5. The Client shall not do anything which may impair the tracking. The parties hereto shall inform each other if it becomes apparent that the tracking is impaired for whatever reason.
6.6. CWC GmbH shall not be obliged to verify the tracking results without good cause. In case of any discrepancies or doubts about the tracking system or results of the tracking system, only the tracking code implemented on behalf of CWC GmbH shall be used for any calculation on Sales. If the parties have agreed upon in writing to use a tracking code not implemented by CWC GmbH in writing, CWC GmbH is not obligated to solve the discrepancies based on this tracking code. In this case the Client shall work towards a reasonable solution with the publisher or network involved and keep CWC GmbH informed about the progress.
7. Intellectual Property
7.1. The Clients grants CWC GmbH a non-exclusive, with regards to content and region unlimited as specified in the offer, transferable right of use regarding any content conveyed in context with this agreement during contract duration. CWC GmbH is entitled to adapt and transform the Client’s work and transfer the right of use to Distribution Partners/ Networks and publishers. The right of use explicitly covers the use of work for any online-marketing measures and advertising media.
7.2. The Client entitles CWC GmbH the transferable right to translate any work in other languages, including the therefore necessary right of adapation.
7.3. The Client waives his right to be designated by name. This shall apply especially for work that is protected by intellectual property law.
8. Remuneration and payment terms
8.1. All prices agreed upon shall be net prices to which the applicable statutory value-added tax shall be added. If not labelled differently, the agreed currency is EURO.
8.2. Unless otherwise agreed upon in writing, the implementation fee shall be due and payable upon execution of this contract, the monthly affiliate management fee at the first day of every month and an initial deposit upon conclusion of the contract an agreed transaction fee upon the tracked KPIs. CWC GmbH shall be entitled to collect the fees when the respective amounts become due and payable.
8.3. The respective initial deposit must be kept as a positive balance in the Client’s account and will be used to pay future Transaction Fees (Commissions), which includes the publisher’s pay-out and the commission of Affiliate-Networks. Unless otherwise agreed upon in writing, the initial deposit will be 500,- Euro per each country. CWC GmbH will start its service after receiving the initial deposit only. Neither the implementation fee nor the affiliate management fees are calculated in the deposit as these fees will be invoiced separately.
8.4. The commission will be generated upon the agreed percentage of all KPIs as defined in section 6 of this GTC and shall be due and payable at the first day of every month. If not stipulated otherwise in a written form the agreed commission includes the publisher’s commission as well as the technology commission and affiliate management commission.
8.5. Unless otherwise agreed upon in writing, CWC GmbH will provide electronic invoices and frequent statements of the accounts for the client.
8.6. The Client shall be obliged to bear all by the Client authorized travel and out-of-pocket-expenses incurred by CWC GmbH after invoicing by CWC GmbH.
8.7. In the event of default of payment, CWC GmbH shall be entitled to charge interest to the Client at a rate of 8 percentage points on top of the base rate. In the event of default of payment, CWC GmbH shall be entitled to stop carrying out current orders and campaigns until all amounts due have been paid in full.
8.8. Any assignment of claims against CWC GmbH shall require the written consent of CWC GmbH.
9. Warranty and liability
9.1. The provisions of the law regarding contracts of service in accordance with Section 611 et seq. of the German Civil Code shall apply, with the Client’s claims against CWC GmbH based on defective performance or defects in the provision of the services becoming statute-barred six months after the day on which they have arisen and the Client gains knowledge of the circumstances giving rise to the claim or fails to gain such knowledge due to gross negligence or wilful intent.
9.2. CWC GmbH and/or its vicarious agents and/or legal representatives shall be liable only for gross negligence or wilful intent. Contractual and non-contractual liability for any damage to property, financial loss, lost profit and consequential damage caused by a defect suffered by the Client shall be ruled out in the case of slight negligence, unless where liability for breach of a cardinal contractual obligation (Kardinalpflicht) is concerned. Cardinal obligations are obligations without the fulfilment of which, due performance of the contract would not be possible and upon the fulfilment of which, the contracting partner usually relies and can rely. In any case of a slightly negligent breach of a cardinal contractual obligation, liability shall be limited as regards its amount to the foreseeable damage typical for the contract.
9.3. Apart from that, liability shall be ruled out, with the exclusion of liability not applicable in any case of injury to life, body or health of a person and not to liability under the product liability act.
9.4. The following shall apply in addition where the Client receives access data to campaigns and/ or affiliate networks by CWC GmbH:
9.4.1. The warranty provisions of Section 535 et seq. of the German Civil Code shall apply with regards to the granting of the possibility to use the Software. The claim for damages regardless of fault in accordance with Section 536a paragraph 1 option 1 of the German Civil Code shall be ruled out.
9.4.2. A prerequisite to default of defect remedy shall be the fixing of a reasonable time limit for fault correction by the Client. If the time limit expires, the Client shall be entitled to set CWC GmbH another reasonable preclusive time limit for fault correction. Should CWC GmbH fail to remedy the defect within that time limit, the Client shall be entitled to reasonably reduce the agreed remuneration. All time limits shall be fixed in writing.
10. Term and termination of the contract
10.1. The contract shall come into effect as of the agreed upon date or – if no such effective date is agreed – as of the date the order is accepted by CWC GmbH.
10.2. The contract is concluded for a period of one year with automatic renewals for an additional successive year. In order to cancel the contract, a written notice has to be send to Claudia Wünsch Communication GmbH via email or fax three month prior expiry date.
10.3. Ordinary notice of termination before the expiry of an agreed minimum term of contract shall be ruled out. Unless otherwise agreed, a minimum term of contract of 6 months shall apply. The right to terminate the contract without notice for a compelling reason shall not be affected.
10.4. A compelling reason for termination by CWC GmbH shall exist in particular if
– the Client, despite a warning, fails to discharge its obligation to pay the remuneration;
– the Client falls behind with the payment of the monthly remuneration by an amount equal to the remuneration for two months;
– a claim is asserted against CWC GmbH by a third party due to an alleged infringement of a right in connection with its activities for the Client;
– the Client fails to implement the submitted tracking solution not within sixty days of the execution date or
– the Client seriously breaches its contractual duty to cooperate or, in the case of a less serious breach of contract, fails to stop the behaviour complained about despite appropriate notice.
10.5. A compelling reason for termination by Client exist in particular if
– the CWC GmbH’s Front-End-System is not available to perform basic tracking functions (“Network Downtime”) more than 10% of the number of hours of the relevant calendar month, provided that CWC GmbH is responsible for the Network Downtime.
10.6. Any notice of termination shall be valid only if made in writing (Section 126b of the German Civil Code).
11. Confidentiality and data privacy
11.1. The parties hereto undertake to treat as confidential any and all company and business information and knowledge of the other party obtained in connection with the performance of this contract and to not disclose such information or knowledge to any third party without the prior consent of the other party and to impose an appropriate obligation on its employees and vicarious agents. This shall not apply where such information or knowledge is public or already known to the receiving party at the time of disclosure. This obligation shall continue to exist after termination of the contractual relationship.
11.2. All documents handed over to CWC GmbH by the Client are confidential. CWC GmbH shall keep them carefully and return them to the Client at its request. CWC GmbH shall not have a right to retain these documents. CWC GmbH shall be entitled to make copies for the purpose of preserving findings and evidence.
11.3. If the parties in context with this agreement receive personal data from the other party or their partners, clients or customers, they agree to comply with the provisions of the data privacy acts.
12. Final provisions
12.1. The law of the Federal Republic of Germany, excluding application of the UN Convention on Contracts for the International Sale of Goods, shall exclusively govern any dispute between the parties hereto. The place of fulfilment and jurisdiction for any dispute arising from or in connection with this contract, irrespective of the legal basis, shall be Berlin.
12.2. Any supplement or amendment to these GTC or the underlying contract shall only be valid if made in writing (Section 126b of the German Civil Code). This shall likewise apply to any alteration of this provision.
12.3. CWC GmbH shall be entitled to alter the contractual terms and conditions by giving 28 days‘ prior notice. If the GTC is altered, the Client shall have a special right of cancellation which shall have to be exercised within one week of receipt of the notice.
12.4. The Client shall be entitled to set off any liabilities under this contract only against such receivables from CWC GmbH the existence of which has been legally decided or which CWC GmbH has recognised by a written declaration.
12.5. CWC GmbH shall be entitled to assign this contract with all rights and obligations stipulated in it to a subsidiary or sister company. Such assignment shall become effective 28 days after notification of the Client.
12.6. Should any individual provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions.