General Terms and Conditions and Privacy Policy of We doo Affiliate a brand of Maximus Leads PTE. LTD.
Preamble
The following General Terms and Conditions contain the basic rules for the use of the affiliate network “We do Affiliate” a brand of Maximus Leads Pte. Ltd. (hereinafter referred to as “MAXIMUS”) – see I – as well as for the generation of leads and the implementation of online advertising campaigns – see II – as well as for all, also future, legal transactions and actions similar to legal transactions between the user (what/who is the user) and MAXIMUS.
Advertisers (hereinafter “Advertiser”) may participate in the affiliate network operated by MAXIMUS.
The Advertiser wishes its specific advertising for its goods and services (hereinafter “Advertising Material”) to be displayed through various types of advertising, including but not limited to banners, emails, iFrames and / or videos (hereinafter “Advertising Channel”).
By using MAXIMUS, the Advertiser can place its advertising material in combination with the respective advertising channel and concrete financial conditions (hereinafter “Advertising Campaign”) to be selected and executed by a Publisher. Such an advertising campaign may – in addition to this Agreement – be governed by further specific terms and conditions issued by the Advertiser (hereinafter “Campaign Terms”), which are to be observed by the Publisher selecting and executing the specific advertising campaign.
Terms and conditions of the advertisers or publishers that deviate from these terms and conditions shall not apply unless MAXIMUS has acknowledged the deviating or conflicting terms and conditions of the advertisers or publishers.
I. Affiliate network
§1 Subject matter of performance
(1) The object of the service obligation of MAXIMUS is the provision of an online platform under the internet domain https://we-doo-affiliate.com/ , which allows the Advertiser to make use of online advertising services (in particular the placement of hyperlinks) by the persons affiliated to the Affiliate Network (“Publisher”), including the mediation of corresponding advertising service contracts between Advertiser and Publisher, as well as the support of Advertiser and Publisher in the processing of these advertising service contracts (in particular the invoicing).
(2) The terms and conditions of this Agreement shall apply to all, including future, affiliate programs offered by the Advertiser within the meaning of § 4.5.
§ 2 Registration/Application
(1) The use of services of the affiliate network via the platform at https://we-doo-affiliate.com is only possible for the advertiser after prior registration.
(2) The data entered during registration must be truthful. In the event that this information changes, the advertiser is obliged to correct the entries immediately. If the Advertiser provides incorrect information during registration or if a subsequent correction is not made, the Advertiser may be excluded by the MAXIMUS from further use of the online platform.
(3) By sending the registration, the advertiser makes an offer to the MAXIMUS to conclude this contract with regard to the services defined under § 1. With the confirmation of the registration by the MAXIMUS, this offer is accepted.
§ 3 Operation of the platform
The MAXIMUS operates the platform within the scope of its technical possibilities. The advertiser has no claim to error-free and uninterrupted use of the platform of the affiliate network at all times or to a specific availability. The MAXIMUS will make every effort to restore usability as quickly as possible in the event of a system failure.
§ 4 Establishment and mediation of affiliate programs
(1) MAXIMUS offers the advertiser the possibility on the internet platform to set up affiliate programs with regard to the advertising services requested by him and to offer them to the publishers connected to the affiliate network for participation. The affiliate programs contain a specification of the service requested and a determination of the remuneration offered. For each affiliate program, the advertiser can also store advertising material (graphics, advertising banners, hyperlinks, etc.) as well as individual conditions of participation, which are made available to the publishers via the online platform. The advertising media must comply with the specifications or restrictions of MAXIMUS with regard to format and size.
(2) Publishers are enabled to apply for participation in these affiliate programs via the platform. The acceptance of a Publisher’s application is the responsibility of the Advertiser. It is the responsibility of the advertiser to check whether the publisher’s media contain illegal content or content that is unacceptable to the advertiser. The advertiser is free to reject the application of a publisher without giving reasons. Likewise, he may later object to the further participation of a Publisher in his affiliate program with effect for the future. Through the acceptance of an application by the advertiser, a contract is concluded between the advertiser and publisher regarding the respective advertising service. In this respect, the MAXIMUS acts exclusively as an intermediary.
(3) MAXIMUS reserves the right to exclude individual publishers from using the platform and thus from participating in affiliate programs without consulting the advertiser. This applies in particular in the event of breaches of contract by the Publisher or if media of the Publisher contain violent, racist, discriminatory or sexually explicit content or content that violates applicable legal provisions or refers to such content.
§ 5 Other services of the MAXIMUS
(1) MAXIMUS also enables the Advertiser and the Publisher to process the contract for advertising services referred to in § 4 (1) by providing an automated system as well as hyperlinks and URLs to be used which record the advertising services subject to remuneration.
(2) The system shall take over the logging of the successes subject to remuneration generated by the Publisher for the benefit of the Advertiser within the meaning of § 6 (1) and, on the basis of this data, shall transmit a statement of account to the Advertiser on the basis of the remuneration specified in the affiliate program.
(3) MAXIMUS provides the advertiser and the publisher with accounts for the execution of the settlement. The Advertiser must load his account with a credit balance in advance. When an affiliate program is restarted, the minimum top-up is EUR, all subsequent top-ups should be at least in the amount of EUR. An affiliate program will only be activated by MAXIMUS once the minimum top-up has been made by the advertiser. A credit balance on these accounts does not earn interest.
(4) MAXIMUS is entitled to continuously develop its service environment technically.
§6 Remuneration and Billing of Advertising Services/ Fraud Protection
(1) The remuneration of the advertising services assumed by the Publisher by the Advertiser is performance-based. The MAXIMUS enables the Advertiser to determine the type and amount of the performance-based remuneration in favor of the Publisher separately for each affiliate program. The following remuneration models are currently offered:
(a) Pay-per-click (fixed amount per click of a user on the hyperlink to the advertiser’s website provided by the publisher);(b) Pay-per-sale (percentage share of the sales revenue with a customer who has reached the advertiser’s website by clicking on the hyperlink provided by the publisher);
(c) Pay-per-lead (fixed amount per occurrence of the success defined in the respective affiliate program in relation to a user who has reached the Advertiser’s website by clicking on the hyperlink provided by the Publisher (“Lead”) or
(d) a combination of the aforementioned remuneration models.
(2) Fraud – regulations
(a) Only clicks made voluntarily and consciously by the internet user on the hyperlink provided by the publisher to the advertiser’s website are subject to remuneration. Clicks generated with the aid of automatic mechanisms or software or induced by coercion, deception or threat do not give rise to a claim to remuneration. Repeated or successive clicks within a short period of time are also not counted as valid.(b) MAXIMUS establishes a fraud monitoring system of the traffic on the relevant websites. If the system generates an error message at individual record level, payment for this lead can be refused up to the 15th of the month following the submission by stating the rejection reason “LEAD ID + SUBPUB ID + SINGLE HIGH RISK LEAD”.
If the system generates an error message at the group record level, payment for this lead can be rejected up to the 15th of the month following the submission by stating the rejection reason “LEAD ID + SUBPUB ID + GROUP HIGH RISK LEAD”.
(c) MAXIMUS is at no time obliged to disclose details of the fraud monitoring system to the contractual partner.
The disclosure of such details would endanger the efficiency of the fraud monitoring system. Therefore, MAXIMUS is not obliged to disclose details of the fraud monitoring system in order to demonstrate the reasons for refusal listed under § 6 (2) (b).
(d) If more than 50% of the data submitted per publisher or sub-publisher is classified by the fraud monitoring system as a single risk and / or group high risk lead, MAXIMUS is entitled to reject all leads of the month in question and not to pay any remuneration for the total production of the month.
(3) In accordance with the selected remuneration model, the agreed remuneration amount will be credited to the publisher with each recorded success occurrence subject to remuneration (click, sale or lead) and after approval of the settlement by the advertiser and the advertiser’s account will be debited accordingly.
(4) MAXIMUS prepares an up-to-date statement of account on a daily and monthly basis and enables the Advertiser to inspect and check it electronically by providing all accounting data via the platform. Provided the Advertiser has no objections to the billing, he releases it. If the advertiser does not raise any objections to the statement within a period of 60 days, a release is also deemed to have been granted. The respective statement contains neither an acknowledgement that it is exclusively a matter of valid clicks, nor that all valid clicks have been recorded in full.
§ 7 Remuneration of the MAXIMUS
(1) The remuneration to be paid by the respective Advertiser to MAXIMUS shall be agreed upon in individual contracts.
(2) For the granting of access to the affiliate network, the advertiser pays a one-time access fee in the amount of EUR for the establishment of an affiliate program, MAXIMUS also receives a one-time remuneration in the amount of EUR MAXIMUS and advertisers may agree on different remuneration arrangements in individual cases.
§ 8 Inadmissible uses
(1) The affiliate programs offered and all content and information posted within this framework, in particular program descriptions, graphics, banners, hyperlinks, etc., must be compatible with the applicable legal provisions of the Federal Republic of Germany. Also inadmissible is any placement of content or information which is likely to harm the interests of MAXIMUS or its reputation in the public. Accordingly, in particular, the following is inadmissible
(b) the posting of insulting, defamatory, anti-constitutional, racist, sexist or pornographic content. (2) Furthermore, any use aimed at or obviously suitable for impairing the security or availability of the online portal, rendering it non-functional or preventing, impeding or delaying its use shall be impermissible.
(3) Should the MAXIMUS determine a violation of the above paragraphs (1) to (2), it may immediately block the Advertiser’s access to the online portal and exclude the Advertiser from further use of the Affiliate Network.
§ 9 Selection and monitoring of publishers
(1) MAXIMUS does not vouch for the fact that sales are generated on the part of the Advertiser via the platform.
(2) MAXIMUS tries to admit only reliable and reputable publishers with websites to its affiliate network that comply with the applicable legal provisions. To this end, MAXIMUS requires various information from Publishers upon their registration and imposes various obligations on them in the terms of contract. However, MAXIMUS does not control or monitor the content or media of the Publishers. The Advertiser understands that MAXIMUS has no control over the current or future design or content of the Publishers’ media. MAXIMUS also assumes no guarantee for the completeness and accuracy of the information provided to it by the publishers. However, the advertiser has the possibility to define special regulations regarding the permitted forms of advertising and other obligations of the publishers (e.g. possible sanctions in the event of violations) within the framework of the conditions of participation for its affiliate programs.
(3) MAXIMUS is liable for the compensation of damages caused by the placement of a hyperlink on a medium
of the Publisher with illegal content or content unacceptable to the Advertiser exclusively in accordance with § 10.
§ 10 Liability
(1) MAXIMUS is liable without limitation in the case of intent, fraudulent intent and gross negligence as well as in the case of personal injury.
(2) MAXIMUS is liable for damages in the event of a slightly negligent breach of a material contractual obligation (cardinal obligation) limited to the amount of the foreseeable damage typical for the contract. In this case the MAXIMUS is not liable for loss of profit, indirect damage, consequential damage caused by a defect and claims of third parties. Cardinal obligations within the meaning of this provision include, in addition to the contractual main performance obligations, obligations the fulfilment of which makes the proper performance of the contract possible in the first place and on the observance of which the client may regularly rely.
(3) Liability for third-party information stored by MAXIMUS only applies insofar as MAXIMUS is obliged to remove or block this information as soon as it becomes aware of a possible infringement. There is no liability before knowledge is obtained, nor is there an obligation to monitor the stored information or the targeted search for illegal activities.
(4) In all other respects, any liability on the part of MAXIMUSs is excluded.
(5) The Advertiser indemnifies MAXIMUS against all claims of third parties, including claims for damages and liability claims as well as the reasonable costs, which are due to its culpable conduct. This includes, in particular, claims against MAXIMUS due to inadmissible content and information of the Advertiser within the meaning of § 8.
§ 11 Contractual penalties
MAXIMUS is entitled to levy contractual penalties on publishers in cases in which publishers conduct e-mail or SMS campaigns towards consumers and in doing so disregard the legal provisions, in particular the existence of consent of the person addressed.
MAXIMUS is also entitled to impose contractual penalties on publishers who use the network in a manipulative or impermissible manner. Such an inadmissible manipulative use of the network is in particular given if the fraud system (§ 6) reports SINGLE HIGH RISK LEAD or GROUP HIGH RISK LEAD for more than 10 % of the submitted data.
The amount of the contractual penalty to be paid is Euro 5000 per case of infringement.
The publisher cannot invoke the defense of continuation. In this respect, the publisher declares that it waives this defense.
§ 12 Data protection
(1) The MAXIMUS undertakes to comply with the applicable data protection regulations, in particular those of the German Data Protection Regulation (DS-GVO), the German Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG).
(2) MAXIMUS will collect and use personal data of the Advertiser exclusively within the scope of the contractual purposes and will pass this data on to the Publishers to the extent that this is necessary for the fulfilment of advertising service contracts concluded with the Advertiser.
§ 13 Obligations of the Publisher/ Special Regulations for Publishers
(1) Publisher shall ensure that all Promotional Materials and the technical implementation of all Promotional Materials (i) are not illegal, (ii) do not infringe the intellectual property rights of third parties, including but not limited to trademarks and / or copyrights, and / or other rights of third parties and / or personality rights of third parties and (iii) do not contain or link to any material, is harmful, threatening, defamatory, obscene, sexually explicit, harassing, violent, discriminatory (whether based on gender, religion, race, ethnicity, nationality, disability or age), does not promote illegal activities (such as gambling), does not promote the use of the Website by any third party, and (iii) does not promote or link to any material that is harmful, threatening, defamatory, obscene, sexually explicit, harassing, violent or discriminatory (whether based on gender, religion, race, ethnicity, nationality, disability or age). e.g. gambling), does not promote items whose distribution is totally prohibited or subject to restrictions.
(2) In addition, the Publisher shall ensure that none of the following prohibited forms of advertising are served: Bot entries (web pages and / or scripts with automatic entry), forced clicks, misleading user flows (e.g. violations of applicable laws, rules or regulations, including but not limited to creating a false impression regarding prize distribution and the use of incentives) and interstitial pages.
(3) It is not permitted to change the advertising material without the prior written consent of MAXIMUS and / or the Advertiser. Written means and includes letter, fax, email and / or Skype. In addition, Publishers are not permitted to advertise with advertising material created by themselves or otherwise acquired, which has not been directly provided and approved by MAXIMUS and / or the Advertiser, without prior written consent.
(4) It is expressly not permitted to specifically use and / or distribute viruses, worms, Trojans, rootkits, key loggers, dialers, spyware, illegal adware, Malware, fraudulent security software and other harmful programs.
(5) Any ad serving software used by Publisher may only be installed on an end user’s computer in a legally permissible manner, including but not limited to clearly communicating the function of the software to end users prior to installation a positively accepted and understandable end user license agreement and the software can be easily removed by generally accepted methods. Advertising software may be permitted in the relevant campaign terms.
(6) Publisher shall ensure that no representations, warranties or other statements are made with respect to MAXIMUS and/or any Advertiser or any of their respective products or services except as expressly permitted herein, including but not limited to defamatory statements.
(7) Pursuant to the provisions made herein, the Publisher shall ensure that the trademark of MAXIMUS and / or the Advertiser is not placed on any platform and / or online platform, website and / or other location without the prior written consent of the respective trademark owner. In general, the Publisher shall ensure that no intellectual property rights of MAXIMUS and / or the Advertiser are infringed, including but not limited to trademarks and / or copyrights. Publisher will ensure that the appearance of MAXIMUS’ and / or the Advertiser’s website does not copy or resemble and / or give the impression that the promotional materials are in any way associated with MAXIMUS, and / or Advertiser. Prior written permission of MAXIMUS and/or the Advertiser is required.
(8) Publisher will comply with all (i) obligations, requirements and restrictions under this Agreement, (ii) laws, rules and regulations relating to Publisher’s business, Publisher’s advertising channels and/or use of Publisher’s advertising materials, (iii) the terms, policies and guidelines of third party services used by Publishers in connection with the MAXIMUS, including but not limited to email providers, social networking services and advertising networks, and (iv) campaign terms.
(9) If required, Publisher will always reasonably provide End Users, including prior to the collection of Personal Data, with a privacy policy in compliance with all applicable laws that clearly and thoroughly discloses all information related to the collection and use. In addition, and in general, Publisher warrants that it will comply with all applicable privacy laws.
(10) The Publisher assumes the obligation to pay MAXIMUS a contractual penalty in the amount of EUR 5,000.00 for each culpable infringement of this provision under § 12. This provision does not affect the right to assert a further claim for damages.
(11) If a third party attempts to enforce a claim against MAXIMUS and / or the advertiser due to advertising materials used by the publisher and / or a violation of legal provisions or the violation of property rights, the publisher indemnifies MAXIMUS and / or the advertiser from all claims. The Publisher also undertakes to pay MAXIMUS reasonable costs for the legal defense.
(12) If an advertiser attempts to enforce a claim against MAXIMUS due to advertising materials used by the publisher and / or a violation of legal provisions or the violation of property rights, the publisher indemnifies MAXIMUS and / or the advertiser from all claims. The Publisher also undertakes to pay MAXIMUS reasonable costs for legal defense.
§ 14 Special obligations of the sender for e-mail, SMS and sub-publisher networks as well as special provisions regarding sub-distribution of the advertising campaigns
(1) With regard to email and / or SMS campaigns, the Publisher guarantees that emails and / or SMS will only be sent to Users who have given their consent to receive promotional emails and / or SMS from the Publisher in which products of the Publisher and / or third parties are advertised, including, without limitation, that the User has consented to receive so-called emails and / or SMS from third parties. In doing so, the Publisher shall ensure that the User gives his consent in a legally effective manner, subject to the statutory provisions and jurisdiction of the respective country in which the respective User is domiciled. The Publisher is obliged to prove that it has fulfilled these requirements and that it is acting in accordance with the legal provisions. In particular, the use of SMS Simcard farms with prepaid cards is prohibited.
(2) All emails sent in connection with the agreed advertising campaign must contain an appropriate opt-out link and the statement of imprint / company information. All SMS sent in connection with the agreed advertising campaign must contain the privacy policy / company information. From time to time, Maximus may request the Publisher to send the used version of an email and / or SMS to the MAXIMUS representative for approval.
(3) The Publisher accepts the obligation to pay MAXIMUS a contractual penalty of EUR 5,000.00 for each culpable infringement of this provision. This provision does not affect the right to assert a further claim for damages.
If a third party, including a user, asserts a claim against MAXIMUS and / or the Advertiser due to an abuse and / or a criminal offence against the aforementioned provisions, the Publisher shall fully indemnify MAXIMUS and / or the Advertiser against all claims asserted against them. At the same time, the Publisher undertakes to pay MAXIMUS and / or the Advertiser reasonable costs for legal defense.
(4) If an advertiser asserts a claim against MAXIMUS due to an abuse and / or a criminal offence against the aforementioned provisions, the publisher comprehensively indemnifies MAXIMUS against all claims asserted against them. At the same time, the Publisher undertakes towards MAXIMUS to pay reasonable costs for legal defense.
(5) The Publisher must strictly comply with the country-specific applicable SPAM law (hereinafter “Law”). It is the sole responsibility of the Publisher to ensure that the email complies with the applicable Law.
(6) In the event that the Publisher operates an affiliate network (hereinafter “Network”) with third party publishers (hereinafter “Sub-Publishers”), the Publisher guarantees to communicate this Agreement to the Sub-Publishers and to monitor compliance with it, i.e. the Publisher contractually undertakes to impose the obligations set out in this Agreement on its Sub-Publisher. Publisher shall be liable for the conduct of its Sub-Publishers, including but not limited to Publisher(i) warranting that it expressly prohibits any Sub-Publisher from altering the Promotional Material in any way, (ii) operating its network in accordance with best industry practice, (iii) not to allow as a Sub-Publisher any party whose website or business model contains Content that is objectionable, (iv) that all Sub-Publishers are in good standing with Publisher and all Sub-Publishers accept the provision of this Agreement relating to the Promotional Material (v), that Publisher will immediately terminate any Sub-Publisher who violates the Terms and Conditions (vi) if Publisher suspects that any Sub-Publisher has engaged in misconduct with respect to the Promotional Material, Publisher shall immediately notify Maximus of the identity and provide contact information of such Sub-Publisher and (vi) immediately remove the Sub-Publisher from the relevant Campaign and exclude their access to future Maximus Network offerings.
The Publisher accepts the obligation to pay Maximus a contractual penalty of EUR 5,000.00 for each culpable breach of this provision. This provision does not affect the right to assert a further claim for damages.
§ 15 Blocking and deactivating
In the event of a suspected breach of this Agreement by the Publisher, Maximus shall be entitled, on its sole instruction, to suspend and / or deactivate the Publisher’s account for the duration of a review or to irrevocably suspend it with immediate effect. In such cases, the Publisher will be informed immediately and given the opportunity to provide an explanation
§ 16 Term / Termination
(1) This Agreement shall enter into force upon confirmation of registration pursuant to § 2 (3) and shall be concluded for an indefinite period.
(2) The contracting parties may terminate this contract including all affiliate programs or only individual affiliate programs at any time. If only individual affiliate programs are terminated, this contract remains unaffected. The termination becomes effective at 0:00 a.m. of the working day following the day of receipt of the termination by MAXIMUS. In this case the affiliate network will inform the publishers of the affiliate programs concerned of the termination. Clicks made up to the time of termination will still be logged and corresponding remuneration must still be paid.
(3) Notice of termination may be given in text form or using the online termination functions.
(4) Any account balances within the meaning of § 5 (3) still existing at the time of termination of the contract will be refunded to the Advertiser.
§ 17 Final provisions
(1) This contract and the contracts on the implementation of individual affiliate programs are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship is the registered office of MAXIMUS
II. Lead generation and the implementation
of online advertising campaigns
§ 1 Scope of application
These General Terms and Conditions (GTC) are an integral part of all contracts of MAXIMUS with a contractual partner (customer) for services from the area of the subject matter of the contract specified in § II. The version valid at the time of the conclusion of the contract is authoritative. Deviating terms and conditions of the customer do not become part of the contract unless MAXIMUS expressly agrees to their validity in writing. Deviating provisions in the offer or service description take precedence over the provisions of these GTC.
§ 2 Subject matter of the contract
The MAXIMUS offers its customers advertising services on the Internet and services related to advertising measures on the Internet. This includes, among other things, the generation of leads for e-mail marketing and Telesales leads, marketing by e-mail, co-sponsoring, as well as the brokerage and processing of contracts for such services.
§ 3 Marketing & Use of Telesales Leads and Personal Data
It should be noted that data records provided by MAXIMUS are commissioned data processing within the meaning of the provisions of data protection law and therefore special precautions must be taken to protect personal data. As a customer, you confirm by signing and accepting the offer that you will only use the data for the contractually agreed purposes and also only to the contractually agreed extent of use and that you will delete the data after completion of the order no later than 90 days after the date of delivery. The right to use the data can be withdrawn by MAXIMUS if the customer does not fulfil his payment obligations. It is additionally confirmed that the customer has taken suitable technical and organizational measures in accordance with the provisions of data protection law for the protection of personal data and has also documented this.
In particular, all persons commissioned by the client who come into contact with the data from an order are obliged to maintain data secrecy.
Passing on the data is expressly prohibited and will be punished with a contractual penalty of ten times the originally agreed CPL (cost per lead) on the total quantity of the corresponding delivery, but at least with 5,000.00 euros.
§ 4 E-mail marketing
(1) The customer books the sending of advertising by e-mail (e-mail marketing) with MAXIMUS.
(2) the remuneration of MAXIMUS depends on the booking type:
Contact price per thousand (CPM): The customer pays 1,000 (one thousandth) of the agreed CPM for each e-mail received. An e-mail shall be deemed to have been delivered if it has been delivered without an error message, either on delivery or in the return. MAXIMUS will determine the number of e-mails received.
Cost per Click (CPC): One or more hyperlinks are placed in the e-mail, which are individualized for tracking purposes. The customer pays the agreed CPC for each call of such a hyperlink (click), but only once per e-mail. MAXIMUS determines the number of clicks.
Cost per Lead (CPL): One or more hyperlinks are placed in the e-mail, which are individualized with a unique identifier (ID) for tracking. The customer pays the agreed CPL for each contact (lead) made via such a hyperlink, but only once per e-mail. In case of doubt, contact shall be understood as any behaviour of the e-mail recipient that enables the customer to take further advertising measures or initiate business, in particular a registration or enquiry via the linked Internet page. The number of leads shall be determined jointly by the parties, i.e. the customer shall regularly provide MAXIMUS, at the latest upon its request, with a list of the IDs via which a lead has been made.
Cost per Order (CPO): One or more hyperlinks are placed in the e-mail, which are individualized with an ID for tracking. The customer pays the agreed CPO for each order placed via such a hyperlink.
It is irrelevant whether such an order leads to the conclusion of a contract or whether a concluded contract is later revoked or otherwise reversed. The number of orders is determined jointly by the parties, i.e. the customer regularly provides MAXIMUS, at the latest upon its request, with a list of the IDs via which an order has been placed.
The number of booked thousand contacts, clicks, leads, orders is only to be understood as a target. The customer owes the remuneration according to the number of thousand contacts, clicks, leads, orders actually made, even if the target is exceeded or not reached. This does not apply insofar as the target is exceeded by more than 10 % and MAXIMUS is responsible for this excess in accordance with § 14.
(3) The customer can choose one or more categories (channels) of mail addressees (e.g.: interested in sports and / or fashion) when booking. However, MAXIMUS is not bound to the customer’s choice in the case of performance-based remuneration (CPL and CPO).
(4) The customer can select one or more categories (channels) of mail addressees (e.g.: interested in sport and / or fashion) when booking. However, MAXIMUS is not bound to the customer’s choice in the case of performance-based remuneration (CPL and CPO).
(5) The customer is solely responsible for the content of the e-mails which he sends to MAXIMUS. He guarantees that he will observe the relevant legal provisions, in particular those of the German Telemedia Act (TMG), the Unfair Competition Act (UWG) and the consumer protection and information obligations of the German Civil Code (BGB), when designing the content of the e-mails. MAXIMUS is not obliged to check the content of the e-mails. However, it may refuse to send an e-mail if, in its opinion, which it explains to the customer, its content does not comply with the legal provisions. The customer indemnifies MAXIMUS from all claims which a mail recipient or other third parties raise against MAXIMUS on the grounds that the content of the sent e-mail does not comply with the legal provisions. Further claims of MAXIMUS remain unaffected.
(6) MAXIMUS acquires the e-mail addresses, itself or through third parties, in the double opt-in procedure (DOI): In a first step the recipient discloses his address and at the same time gives his consent to receive advertising messages. In a second step, the recipient receives an e-mail to this address with a hyperlink that is individualized for tracking purposes. By calling up this hyperlink, the recipient confirms that it was he or she who disclosed his or her address and consented to receive advertising messages. For email marketing, the MAXIMUS only uses addresses that have passed the DOI.
§ 5 Co-Sponsorship & Co-Registration
(1) MAXIMUS organizes competitions, either itself or through third parties. The customer sponsors such a competition, i.e. he is named as the sponsor of the competition. If a participant of the competition consents to the promotional use of his personal data by the named sponsors, the customer may use this data for promotional purposes within the scope of the consent.
(2) MAXIMUS acquires the e-mail addresses, itself or through third parties, in the double opt-in procedure (DOI): In a first step, the recipient discloses his address and at the same time gives his consent to receive advertising messages. In a second step, the recipient receives an e-mail to this address with a hyperlink that is individualized for tracking purposes. By calling up this hyperlink, the recipient confirms that it was he or she who disclosed his or her address and consented to receive advertising messages. For email marketing, MAXIMUS only uses addresses that have passed the DOI.
(3) MAXIMUS receives the agreed remuneration for each data record which the customer may use according to para. 1 sentence 2. The number of data sets is determined by MAXIMUS. A data set is to be remunerated even if the client does not use it. In addition to the remuneration, the customer owes the offer of a prize only insofar as this has been expressly agreed.
(4) The client is solely responsible for the use of the data sets. He guarantees that in this use he will observe the relevant legal provisions, in particular those of the TMG, the UWG and the BGB. MAXIMUS will not monitor the advertising measures of the customer. The customer indemnifies MAXIMUS from all claims raised by an advertising addressee or other third parties against MAXIMUS on the grounds that an advertising measure of the customer violates legal regulations. Any further claims of MAXIMUS remain unaffected.
(5) Opt-in requests for delivered data sets will only be processed and handed over to the customer after complete settlement of the invoice within the given payment period. As far as the customer is in arrears with the payment of invoices, MAXIMUS is released by the customer from any obligations to provide information and liability claims against third parties as well as the customer himself. This also applies if opt-in enquiries or liability claims should result from subsequent deliveries and the payment target is in debit with regard to these deliveries. The customer’s payment obligation shall not lapse as a result of the withholding of information obligations in relation to delivered data. The delivered data records must be blocked by the customer until all outstanding invoices from the customer’s marketing have been paid. If the customer uses the data nevertheless, the MAXIMUS will charge a penalty of 5.000,- Euro . The submission of a test address, which was enclosed in the deliveries, is sufficient proof.
§ 6 Lead generation online and via Telesales
MAXIMUS generates leads on behalf of the client. This is done online by online service providers (email marketing service providers and portal operators) with whom MAXIMUS has an existing ADV. It is explicitly pointed out that MAXIMUS cannot be held liable for violations of the BDSG and the DSGVO during the generation process, as it acts here as an address broker.
Offline, the generation takes place via call center service providers with whom the MAXIMUS has an existing ADV. Here, too, it is explicitly pointed out that MAXIMUS cannot be held liable for violations of the BDSG and the DSGVO during generation, as it acts as an address broker.
§ 7 Mediation / Settlement
(1) If MAXIMUS acts as an intermediary for a customer offering advertising services (contractor) vis-à-vis another customer booking advertising services (client), the contract for the advertising services is concluded between these two customers (main contract). In case of doubt, the provisions of these GTC apply accordingly to the main contract. For the mediation, the MAXIMUS is exempt from the restrictions of § 181 BGB (German Civil Code).
(2) If MAXIMUS acts at the same time as processor of the main contract, it is entitled to collect the remuneration of the contractor for the latter from the client. MAXIMUS will pay the collected amount to the contractor after deduction of any remuneration for the brokerage / settlement activity. However, it is not liable to the contractor for payment of the remuneration by the principal.
§ 8 Term and termination
(1) If a period of notice has been agreed, either party may terminate the contract with this period of notice. If a term has been agreed for the contract, it may only be terminated at the end of the term and, if a notice period has been agreed, in compliance with this period, otherwise in compliance with a notice period of two weeks. If such a term contract is not terminated in due time by one party, it shall be renewed for the same term in each case (automatic renewal of the contract).
(2) The right to terminate for good cause remains unaffected. Good cause exists in particular if insolvency proceedings have been opened against the assets of a party or if the insolvency proceedings are not opened due to lack of assets.
(3) If MAXIMUS terminates the contract for good cause, whereby this cause is a breach of duty by the customer, or if MAXIMUS withdraws from the contract due to a breach of duty by the customer, MAXIMUS is entitled to a lump-sum claim for damages against the customer in the amount of 20 % of the (remaining) order value. This does not apply if the customer is not responsible for the breach of duty. In addition, the customer is entitled to prove that no damage has been incurred at all or that the damage is significantly lower than the lump sum. Conversely, MAXIMUS is permitted to prove higher damages. A breach of duty by the customer is in particular the serious and final refusal of an act of cooperation required for the execution of the contract. (Residual) contract value means the remuneration for the commissioned services which have not yet been provided at the time of the termination or withdrawal and which are no longer to be provided due to the termination or withdrawal. Further claims of MAXIMUS, in particular the claim for remuneration for the services already performed at that time, remain unaffected.
(4) The termination must be in writing.
(5) If the contract includes an access of the customer to the system of MAXIMUS, MAXIMUS will block the access data of the customer at the end of the contract. The MAXIMUS will delete the customer data accumulated in the system, insofar as it is not still necessary to retain them, for example for accounting purposes. The MAXIMUS will confirm the deletion to the customer in writing upon the customer’s request. The customer is responsible for obtaining a possible backup of his data in good time before the end of the contract.
§ 9 Remuneration and payment
(1) In case of doubt, all prices are net, i.e. without VAT. For the settlement of accounts, all amounts are also taken into account without VAT (net). Value added tax will be added to the result, i.e. the amount to be paid (gross), insofar as it is incurred.
(2) MAXIMUS invoices its remuneration to the customer by sending it to him by e-mail, optionally also by post. The customer has to settle the respective invoice within 14 days by transfer to the account of MAXIMUS. If the customer defaults on a payment, all other claims become due for payment immediately without the need for a separate notice of default. This does not apply in the case of default of payment through no fault of the customer
(3) The MAXIMUS is entitled to demand an appropriate advance payment from the customer. In case of doubt, an advance amounting to 50% of the remuneration, the due date of which is to be expected within the following three months, shall be deemed reasonable. However, this shall be agreed by mutual consent after consultation between both parties.
§ 10 Limitation of liability
The MAXIMUS has unlimited liability in the event of intent and gross negligence, for injury to life, limb and health, in accordance with the provisions of the Product Liability Act as well as to the extent of an assumed guarantee. In the event of a slightly negligent breach of an essential contractual obligation, MAXIMUS’ liability is limited to the amount of the damage which is foreseeable and typical according to the nature of the transaction in question. Material contractual obligations are those whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the customer may regularly rely. There is no further liability of MAXIMUS. In particular, there is no liability of MAXIMUS for initial defects, insofar as there is no fault in accordance with sentences 1 and 2. This limitation of liability also applies to the personal liability of the employees, representatives, organs and vicarious agents of MAXIMUS.
§ 11 Data Protection & Data Security
(1) The parties shall observe the relevant data protection regulations, in particular those of the DSGVO, the BDSG and the TMG. They shall also oblige their employees to observe data secrecy, unless such an obligation already exists.
(2) MAXIMUS shall, insofar as it holds data for the customer, make regular data backups to the extent required. However, MAXIMUS is liable for the loss of customer data only insofar as such loss could not have been avoided by reasonable measures of data backup on the part of the customer. In the event of loss of data, the customer shall provide MAXIMUS with his data back-up at the latter’s request. For the liability for damages due to loss of data the limitation of liability according to § 14 applies in addition. MAXIMUS also fulfils the technical and organizational requirements according to § 64 BDSG. In particular, the customer has to protect the systems subject to his access against not authorized knowledge, storage, modification as well as other not authorized access or attacks of any kind. To this end, the customer shall take the necessary measures in accordance with the latest state of the art, in particular to protect against viruses and other malicious programs or program routines, as well as other measures to protect its equipment, in particular to protect against break-ins. If systems not subject to its access are used, it shall impose corresponding obligations on its contractual partners and regularly monitor their compliance.
Insofar as MAXIMUS collects, processes or uses personal data on behalf of the customer, the collection, processing or use of such data shall only take place within the framework of the customer’s instructions; if MAXIMUS is of the opinion that such instructions violate the relevant data protection regulations, it shall notify the customer thereof without delay. The parties shall specify the details either in the annex to this contract or separately in writing.
§ 12 Secrecy
The parties are obliged to maintain secrecy with regard to business and trade secrets as well as operational matters of a confidential nature of the respective other party, which are expressly designated as such by the latter or are obviously recognizable as such. The obligation to maintain secrecy extends in particular to the content of the contract including any annexes. The obligation to maintain secrecy, on the other hand, does not extend to information which was already known to the other party or which lawfully becomes known from a third party, which was already publicly known or which becomes publicly known without a breach of this obligation to maintain secrecy, or which must be disclosed by law, by a court or by the authorities. A breach of the confidentiality obligation shall entail a contractual penalty in the amount of 100.000,- Euro.
§ 13 Contractual Penalties
Insofar as MAXIMUS has granted the respective contractual partner only a one-time right of use to the leads or transmitted data records, the contractual partner of MAXIMUS undertakes to pay a contractual penalty in the event of multiple use of such a lead or data record in breach of contract, waiving the plea of continuation. The contractual penalty to be paid shall amount to the net invoice amount for the data delivery from which the contractual partner of MAXIMUS realized a multiple use in breach of contract.
MAXIMUS reserves the right to include test data sets in the respective deliveries in order to check compliance with the contractual agreements.
§ 14 Final provisions
(1) in the event of the invalidity or ineffectiveness of one or more provisions in the contract, all others shall remain unaffected. The legally invalid provisions shall be replaced immediately by legally valid provisions.
(2) All amendments and supplements must be made in writing to be effective.
(3) German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the relevant reference provisions of German private international law. The place of jurisdiction is the registered office of MAXIMUS.