General Terms and Conditions
General Terms and Conditions
General Terms and Conditions for the affiliate network of Musikhaus Thomann GmbH (in cooperation with Sunlab GmbH)
(Current as of: 06.08.2014)
These general terms and conditions govern the rights and obligations arising from participation in the affiliate network of Musikhaus Thomann GmbH, Hans-Thomann-Straße 1, D-96138 Burgebrach (hereinafter referred to as the “merchant”) by partners marketing the goods and/or services of the merchant online by providing links to predetermined webpages operated by the merchant or any other form of online marketing (hereinafter referred to as “affiliates”). Sunlab GmbH (Bamberger Str. 9, 63743) is managing and operating the Affiliate Programm as agency service for Thomann GmbH.
The merchant may offer various programmes within its affiliate network for the marketing of different goods and/or services (“affiliate programmes”). The specific form of the legal relationship between the merchant and the affiliate is based on these terms and conditions as well as the provisions of the relevant affiliate programmes in which the affiliate participates as well as the provisions contained in individual orders (“special provisions”). These provisions shall also form part of the contract between the merchant and the affiliate (collectively referred to as the “parties”).
1.1 Definitions. The terms used herein have the following meanings:
- “My Account” refers to that area of the website that an affiliate may access by logging in and use on the basis of these General Terms and Conditions.
- “Affiliate” has the meaning specified in the preamble.
- “Affiliate programme” has the meaning specified in the preamble.
- “Action” has the meaning set forth in section 4.1.
- “Applicable law” refers to those laws and current versions of regulations that govern the use of the website/service by the customer.
- “Commission” has the meaning set forth in section 4.1.
- “Confidential information” has the meaning specified in section 10.1.
- “Content” means all content (including texts, graphics, videos or images) uploaded by the merchant to the affiliate network, downloaded from the service, linked to the affiliate network, made available by the affiliate network or otherwise made available to the affiliate in connection with the affiliate network for use in advertising.
- “Intellectual property rights” means all intellectual and industrial property rights, including any copyrights, trademark rights, patent rights, design rights, design template rights, use template rights, name rights, domain rights, logo rights, database rights, transferred protected rights, trade secrets, business secrets, rights to know-how and rights to confidential information as well as any and all rights to or arising from the foregoing rights, including the right to the application, registration, exercise and enforcement of such rights.
- “Malicious code” refers to viruses, trojans, worms and any other computer programs and routines that are intended to or are objectively able to damage, impair or intercept electronic systems or data files.
- “Login data” has the meaning specified in section 2.2.
- “Merchant” has the meaning specified in the preamble.
- “Parties” has the meaning specified in the preamble.
- “Party” refers individually to either the affiliate or the merchant.
- “Per action” has the meaning set forth in section 4.1.
- “Per click” has the meaning set forth in section 4.1.
- “Per lead” has the meaning set forth in section 4.1.
- “Per thousand hits” has the meaning set forth in section 4.1.
- “Per sale” has the meaning set forth in section 4.1.
- “Spam” has the meaning specified in section 3.4.
- “Special provisions” has the meaning specified in the preamble.
- “Third party” means any natural person or legal entity other than the affiliate, the merchant and their respective employees.
The headings used herein are for guidance only and are not to be used to interpret these terms and conditions. The use of the words “in particular” or “including” do not imply any restriction, but merely indicate a list of examples. References to the parties include their respective legal successors.
1.3 Special provisions.
To the extent that any provision in the special provisions is in conflict with the provisions set out in these terms and conditions, these terms and conditions shall take precedence to the extent of such conflict.
2.1 Registration process.
To become part of the affiliate network with access to the merchant’s affiliate programmes, a potential affiliate must register by providing its information on the website of the affiliate network. The affiliate shall ensure that all data required for the registration is complete and accurate. The merchant reserves the right to verify the information provided by the affiliate. The affiliate must keep the information supplied at registration up-to-date for the duration of the contract and amend it immediately as required.
By submitting the registration to the merchant and the concomitant consent to these terms and conditions, the registrant is making an offer to establish a contract with the merchant. The merchant accepts the contract by opening an account for the affiliate and allowing the new affiliate to access the affiliate network using the username and password chosen at registration (“login data”). The merchant reserves the right to reject the registrant’s offer to establish a contract without providing any reason, but especially if the registrant or the website(s) on which the advertising is to be made do not fit with the marketing concept, corporate strategy and/or the concept of the advertised goods and services, or if the website(s) feature manifestly unlawful content.
2.3 Participation in affiliate programmes.
The affiliate can then apply via its account to participate in the merchant’s affiliate programmes. When the merchant activates the participation and this document is signed, the affiliate has entered into a contract to participate in the respective affiliate programme.
When the merchant accepts the affiliate and its participation in an affiliate programme, the affiliate shall market on behalf of the merchant for the duration of the contract and the period of its participation in the respective affiliate programme in accordance with these terms and conditions and any special provisions pertaining to the specific programme. The merchant may make content available to the affiliate for use in online marketing on behalf of the merchant and can be accessed via a link to the page specified by the merchant.
3.2 Content and instructions provided by the merchant.
The affiliate may advertise the merchant and its products and/or services only to the extent permitted by the merchant under these terms and conditions and the applicable special provisions. In addition, the merchant may specify to the affiliate the specific, binding manner of advertising in the form of individual instructions. The merchant may also demand the affiliate remove and/or refrain from using certain advertising materials or information when the merchant becomes aware that the affiliate is planning or already conducting marketing measures not in compliance with applicable law or the provisions herein or any applicable special provisions.
3.3 Prohibited marketing.
The affiliate is not permitted to carry out marketing activities for the merchant, its products and/or services that
(1) infringe any rights belonging to third parties or to the merchant, in particular copyrights, trademarks, design rights or privacy rights,
(2) are illegal or immoral,
(3) contain malicious code,
(4) contain false information, for instance the promotion of vouchers which actually do not exist or promote services which are available without voucher,
(5) are pornographic,
(6) are being advertised through Google AdWords or other PPC Plattforms, or
(7) are in breach of these terms and conditions or any applicable special provisions.
3.4 Prohibition on sending unsolicited advertising.
If the affiliate advertises for the merchant via email, it must comply with all applicable legal provisions, in particular the prohibition of sending unsolicited advertising (“spam”). Before sending such electronic mail, the affiliate must therefore obtain the consent of the recipient, if not already received, and demonstrate such consent to the merchant upon request.
4.1 Commission models.
The affiliate will receive compensation (“commission”) from the merchant in accordance with the detailed provisions of the invoicing model, the commission amounts set forth in the special provisions for each action, and the success of the affiliate’s marketing activities. The commission shall be paid at the end of each month, subject to the provisions of paragraph 4.3, in the manner indicated by the affiliate in the system. Actions within the selected invoicing model include the following, if not carried out by the affiliate itself:
(i) clicks by visitors on links that lead to the merchant’s website (“per click”)
(ii) purchase contracts successfully made between the merchant and the visitor to acquire goods and/or services from the merchant that are attributable to the affiliate’s display of links to the merchant’s website (“per sale”)
(iii) other defined actions by visitors (such as registering online), attributable to the affiliate’s display of links to the merchant’s website (“per action” or “per lead”), or
(iv) every thousand hits by visitors received by the merchant’s website attributable to the affiliate’s display of links to the merchant’s website (“per thousand hits”).
4.2 Earning of commissions.
An action will only result in commission for the affiliate when
(i) the action is brought about by the advertising activities of the affiliate;
(ii) the action was logged by the network;
(iii) no computer program, script or other method has been used to give the appearance of an actual natural person triggering the action, when this is not the case (e.g. use of robots or spiders);
(iv) no forms of advertising have been used that attribute the action to the mediation of the affiliate by displaying a link to the merchant’s website, but which is in a form, manner and/or size not prescribed by the merchant or is otherwise not perceptible to the visitor;
(v) no other abusive practices have been used to cause an action to be logged that has not actually taken place, e.g. by use of unauthorised use of data or the use of false or non-existing data when ordering goods and/or services or in online registrations;
(vi) all information necessary for crediting the action have been provided by the visitor within the specified time frame; and
(vii) the action was confirmed by the merchant’s system.The affiliate shall automatically receive a monthly statement within the system of the actions attributable to its marketing and the resulting commissions.
4.3 Payment of commission.
Once the affiliate has a credit balance for its commissions (i.e. the sum of the accumulated commissions earned by the affiliate in the merchant’s affiliate programmes in which it participates) equal to or exceeding € 50,00, the commissions will be paid on the last day of the following month. If the sum of the commissions at the end of the third month has still not reached the amount named above, the commission accumulated up to that point shall still be paid to the affiliate upon request submitted in writing or by email. Upon termination of the contract, the merchant will pay the affiliate all outstanding commissions, irrespective of the amount.
4.4 Logging actions.
The affiliate accepts that, in individual cases, actions attributable to its marketing activities may not be logged correctly by the system due to technical reasons. Such technical reasons may result from the short-term unavailability of the system, e.g. due to maintenance, force majeure or due to the visitor’s system or browser settings (such as the blocking of cookies) that prevents the action from being logged. The affiliate therefore acknowledges that the logs of the system shall constitute the sole basis for settling commission claims.
4.5 Repayment of commissions.
The merchant reserves the right to recover from the affiliate unduly paid commissions, especially any commissions paid for actions that did not meet the conditions set forth in paragraph 4.2.
4.6 Contractual penalty.
Waiving any defence of consecutive violations, the affiliate agrees to pay an immediate contractual penalty of €10,000.00 (ten thousand euros) to the merchant for each case of culpable infringement of the provisions of section 3.3 or 3.4. The merchant’s right to assert claims for damages caused by such breach shall remain unaffected, although any contractual penalty paid will be offset against any such claims.
5. ACCOUNT USE
5.1. Login data.
The affiliate is obligated to keep the login data for its account confidential and to protect the information from any third party. Once the affiliate knows or has reason to believe that third parties have obtained knowledge of its login data, it shall notify the merchant immediately and change the login data immediately or have it changed by the merchant. The affiliate bears sole responsibility for any and all activities or actions that may result from its account, whether such actions were authorised or merely allowed to happen by the affiliate. The affiliate shall, upon request, provide the merchant any and all information required and undertake any other reasonable action to support the merchant in investigating cases of unauthorised or abusive use of the service.
5.2 Use by its own employees.
If the affiliate is a legal entity, it may disclose its login data to its own employees, if and to the extent
(i) the employees concerned use the service solely for the purposes of the affiliate (i.e. not for their own purposes or on behalf of third parties);
(ii) the affiliate ensures by appropriate means that employees comply with all relevant usage rules for participation in the affiliate network and participating in the various affiliate programmes; and
(iii) the affiliate accepts full and complete responsibility for any and all acts and failure to act by employees when accessing and using the service.
5.3. Use of accounts
The affiliate is obligated to use its access to the merchant’s affiliate network only to carry out marketing activities for the merchant, as set forth herein and in any applicable special provisions , and shall refrain from any misuse of the same. The affiliate must therefore, in particular, refrain from:
(i) taking any action that leads or can lead to an impairment of the server and the IT structure necessary for the operation of the affiliate network and affiliate programmes and the monitoring of visitor actions, including any kind of hacks, insertion of malicious code or circumventing or disabling any security mechanisms;
(ii) using the accounts of other customers;
(iii) permitting third parties to use its account except as expressly permitted in paragraph 5.2;
(iv) using access to the affiliate network and affiliate programmes in any manner that violates applicable law or any obligations of the affiliate to the merchant or any third party;
(v) posting prohibited content to the affiliate network and spreading or using such content by means of the affiliate network;
(vi) attempting to carry out any of the above acts or encouraging others to carry out such acts or otherwise providing assistance for the same.
6. INTELLECTUAL PROPERTY RIGHTS AND LICENCES
6.1 Rights reserved.
With the exception of the limited licence herein granted, all intellectual property rights to the content belong to the merchant.
6.2 Licences granted to the affiliate.
The merchant hereby grants the affiliate a simple, non-transferable, royalty-free right to use the templates for the duration of the contract anywhere according to these terms and conditions and any applicable special provisions. The affiliate may not licence these rights to third parties.
7.1 Limits of liability.
The liability of the merchant for damages caused by its actions taken out of slight negligence, regardless of the legal basis, is limited as follows:
(i) The merchant shall be liable for breaches of essential obligations only to the extent limited to those foreseeable damages typical of contracts of this nature.
(ii) The merchant shall not otherwise be liable for damages caused by its actions taken out of slight negligence.
The above limitations do not apply in cases where the law requires the merchant to assume liability (in particular under the Product Liability Act), or where there is injury to life, body or health caused by the actions of the merchant. In addition, these limits do not apply if and to the extent the merchant has made a guarantee to its customers or has acted fraudulently. The above provisions apply mutatis mutandis to the liability of the merchant for needless expenses. The affiliate is obliged to take reasonable measures to prevent and mitigate such damage.
7.2 Force majeure.
The merchant is not responsible for the non-performance or poor performance of its obligations if and to the extent this is due to circumstances not within its control. These include disturbances and interruptions of communications facilities or power networks, the loss or impairment of computer systems compromised by malware, hacker attacks or other outside interventions (to the extent only that the merchant has taken reasonable precautions against such occurrences) and unpredictable events such as war, strike or social strife.
The affiliate shall indemnify and hold harmless the merchant from any damages, expenses and other costs and defend the same against claims by third parties which have been caused by the actions or failure to act by the affiliate.
9.1 Confidential information.
Confidential information is any information that one party has disclosed to the other party and which at the time of its disclosure (i) was labelled or marked as confidential or (ii) was or should have been recognisable as confidential due to its nature or the circumstances of its disclosure. Customer data is always confidential regardless of the above conditions. Confidential information otherwise does not include information that is demonstrably available to the recipient of said information prior to its disclosure;
(i) publicly known;
(ii) disclosed to the recipient by a third party in accordance with the law and without breaching any applicable duty of confidentiality; or
(iii) developed independently by the recipient without the use of information disclosed by the other party.
Each party is obliged to keep the confidential information of the other party confidential in the same manner as they treat their own confidential information, with at least a reasonable degree of care. The party receiving such confidential information may only use it in the manner and to the extent authorised by the other party in writing, as required by law, or to fulfil this contract.
10. DURATION AND TERMINATION
This contract is for an indefinite period.
Both parties can terminate the contract at any time without notice and without providing reasons. Termination by the affiliate can be given in writing or made directly within its account. The merchant may terminate the contract by giving notice to the affiliate in its account or in writing.
10.3 Legal right to terminate this contract.
The statutory rights of each party to terminate this contract shall remain unaffected.
10.4 Consequences of contract termination.
Upon termination of the contract, whatsoever the reason (e.g. termination, rescission, expiry), the affiliate must completely cease all marketing measures it had been conducting on behalf of the merchant due to its participation in affiliate programmes, and must in particular remove all content provided by the merchant from its website and any other relevant other websites. Furthermore, all links referring to the merchant’s website used in connection with the affiliate’s participation in an affiliate programme must be removed immediately. The affiliate’s right to use the content expires upon termination of the contract, whatsoever the reason (e.g. termination, rescission, expiry). Upon termination of the contract, the mutual contractual obligations herein except for those listed under paragraphs 4.5, 4.6, 7, 8, 9, 10.4, 10.5, and 11.2 to 11.4, shall expire. If the affiliate terminates participation in only one affiliate programme, this contract shall continue to apply for all other affiliate programmes of the merchant in which the affiliate continues to participate.
10.5 Ending participation in individual affiliate programmes.
Upon termination of a contract to participate in one affiliate programme, the affiliate must completely cease all marketing measures on behalf of the merchant due to its participation in that affiliate programme, and must in particular remove all content provided by the merchant for said programme from its website and any other relevant other websites. Furthermore, all links referring to the merchant’s website used in connection with the affiliate’s participation in that affiliate programme must be removed immediately.
11. FINAL PROVISIONS
11.1 Changes in the Terms and Conditions.
The merchant reserves the right to change these terms and conditions at any time. In the event of such change, the merchant shall inform the affiliate at least six (6) weeks prior to the planned effective date of the change of the text. The affiliate is entitled to object to the amendment no later than two (2) weeks prior to the planned effective date. If the affiliate does not give a timely objection in writing, the acceptance of the amendment shall be deemed granted and the new provision shall enter into force on the scheduled date. If the affiliate objects in a timely and proper manner, the amendment will be deemed rejected and the contract shall continue unamended. However, in such case the merchant may terminate the contract as of the effective date of the changes instead of allowing the contract to continue. The merchant shall advise the affiliate of this right of termination in the amendment notice together with the affiliate’s deadline for objecting and the consequences of such objection.
If any provision of these terms is or becomes invalid, the remaining provisions shall remain unaffected and the contract shall remain in force.
11.3 Applicable Law.
These terms and conditions and the entire legal relationship between the merchant and the affiliate as part of the merchant’s affiliate network are subject exclusively to German law, excluding its provisions on conflicts of law. The UN Sales Convention is excluded.
The exclusive place of jurisdiction for all disputes arising from these terms and conditions and the entire legal relationship between the merchant and the affiliate as part of the merchant’s affiliate network is Germany-96138 Burgebrach if the affiliate is a commercial enterprise as defined by the German Commercial Code.