1. General information:
1.1 The company Omniga GmbH & Co. KG (hereinafter referred to as the “Provider”) provides a platform on the Internet under the domain http://affiliate.twinplan.com. This platform allows registered members (hereinafter referred to as “Partners”) to participate in partner programs operated by the customers of the Provider. The Provider's customers (hereinafter referred to as “Customers”) are businesses which use advertising media (banners, links etc.) to sell and market their goods and services via the Internet.
1.2 The objective of the partner programs is to provide media services in order to assist Customers in selling their goods and services online on a commission basis.
1.3 These General Terms and Conditions of Business form the basis of the business relationship between the Partner and the Provider. They apply in addition to the terms and conditions for the particular partner program. Any conflicting terms and conditions of business of the Partner shall be invalid unless it was expressly agreed between the Provider and the Partner that they shall apply. Any confirmations to the contrary on the part of the Partner with reference to its terms and conditions of business are hereby expressly opposed.
1.4 No other agreements apart from these General Terms and Conditions of Business exist. Any subsidiary agreements, amendments or supplements to this agreement must be made in writing if they are to be effective. The Provider’s members of staff are not entitled to conclude subsidiary verbal agreements or to provide verbal assurances.
1.5 The Partner has read these Terms and Conditions carefully and declares by submitting its registration that it is willing to recognize the provisions which are set out in the text below.
2.1 Account: An account refers to the rightful access to the platform of the Provider granted to a Partner on the basis of the complete and relevant registration data which it provides when it registers for the service.
2.2 Valid click: A click shall be deemed to be valid when a natural person (hereinafter referred to as the “User”) who is not identical to or attributable to the Partner voluntarily and deliberately clicks on a hyperlink for a partner program which can be attributed to the Partner and the linked website of the Customer is brought up as a result. Repeated clicks or clicks made in rapid succession by the same User – even on different hyperlinks – are not valid. Clicks which are associated with a forced action, for example the sending of an SMS message, participation in a competition or the use of the click within a paid e-mail system, are prohibited without prior written permission from the Provider. If no such permission has been given, any clicks generated on this basis shall not count as valid clicks. Valid clicks shall be logged, verified and identified as such by the Provider using its own reasonable judgment.
2.3 Valid lead: A lead shall be deemed to be valid when a User has made a valid click and subsequently performs a specific defined action on the website of the Customer voluntarily and deliberately (hereinafter referred to as a “Qualified Action”). Valid leads shall be determined and identified like valid clicks. However, in respect of the performance of the Qualified Action, they shall be logged and verified on behalf of the Provider by the Customer’s system and subsequently identified by the Provider using its own reasonable judgment.
2.4 Valid sale: A sale shall be deemed to be valid when a User has made a valid click and subsequently acquires an article against payment or makes use of a service against payment voluntarily and deliberately on the website of the Customer. Valid sales shall be determined and identified like valid clicks. However, in respect of the User’s acquisition of an article or use of a service against payment, they shall be logged and verified on behalf of the Provider by the Customer’s system and subsequently identified by the Provider using its own reasonable judgment.
3. Conditions of participation
3.1 The Partner undertakes to fill in the registration form truthfully, correctly and in full when registering. If the registration forms are not filled in completely, it will not be possible to transfer the commission to the Partner in the correct manner. The Partner therefore undertakes in its own interests to check its account details itself and to update these details immediately in the event of any changes. In the event that the Partner is unable to update the details itself, it should inform the Provider of any changes to its details without delay. If the details are incomplete, the Partner shall not be entitled to demand proper execution of the transfer.
3.2 In order to register and participate in the partner programs, a Partner must have its own e-mail address, provide complete contact details and be at least 18 years of age.
4. Commencement of the service, conclusion of the agreement
4.1 Merely submitting the registration form shall not lead to any contractual obligation. In the event that a Partner applies to participate in a partner program, this shall be regarded as a quotation. The clearing of the Partner for participation in a partner program shall be regarded as an acceptance. Consequently, an agreement shall come into being only when a Partner has been given clearance to participate in a partner program.
4.2 The Partner may participate in the partner program of the Provider free of charge.
5. Termination of the agreement
5.1 The agreement regarding participation in the partner program of the Provider is concluded for an indefinite period. In order to end the agreement, it must be terminated by giving 14 days’ notice. Both parties to the agreement shall be entitled to terminate the agreement. Notice of termination must be given in writing and sent either via e-mail ([email protected]) or by post (Omniga GmbH & Co. KG, Bischof-von-Henle-Straße 2b, D-93051 Regensburg).
5.2 The parties to the agreement shall also be entitled to terminate the agreement without giving notice where there is justifiable cause to do so. A party shall have justifiable cause to terminate the agreement in particular, though not exclusively, in the event of an infringement of sections 3.1, 3.2, 8.1, 8.2, 9.1, 9.3, 9.4, 9.5, 9.6 or 12.1.
5.3 The Partner is obliged to remove all advertising media once the contractual relationship has ended. After the agreement has been terminated, no further payment whatsoever shall be made, even if advertising continued successfully.
6. Obligations on the part of the Provider
The Provider undertakes to provide the Partner with a partner ID once the Partner has registered and to set up a personal account for the Partner. The Partner shall then be able to use this account in order to view details of the current commission generated from the programs on offer.
7. Liability on the part of the Provider, limitation of liability
7.1 The Provider shall take all reasonable and economically justifiable measures in order to ensure that the partner program functions in a reliable manner. However, the Provider provides no guarantee that the Internet pages of the individual programs on the participant's and/or Partner's computer are properly functional. The Provider also accepts no liability for any impairment in the availability of the Internet pages which occurs as a result of technical faults or force majeure events over which the company has no influence.
7.2 The Partners themselves are responsible for the partner websites and their content. The Provider had and still has no influence over the content of partner websites and hereby distances itself expressly from the content of such websites.
7.3 The Partner always acts on its own responsibility. The Provider accepts no liability for any damages suffered and any resulting third-party claims caused by the Partner. The Partner expressly releases the Provider from such third-party claims.
7.4 The Provider is liable in full for any damage which it or its vicarious agents cause as a result of willful intent or gross negligence. Likewise, the Provider is liable in accordance with the mandatory provisions of the German Product Liability Law (Produkthaftungsgesetz) for any claims as a result of initial inability or impossibility for which it is responsible. In the event that the Provider culpably breaches a significant contractual obligation, its duty to provide compensation shall be limited to the foreseeable damages which can typically occur. A significant contractual obligation is an obligation which must be complied with in order to achieve the objective of the agreement.
7.5 Any liability on the part of the Provider (e.g. for lost profits, the loss of data or interruptions to or faults in the operation of the Partner's website) is otherwise expressly excluded – irrespective of the particular legal grounds. This applies in particular if, during the end-customer advertising period, the product terms are changed or particular products are discontinued. In cases in which the liability of the Provider is excluded or limited, this shall also apply to the personal liability of its members of staff, representatives and vicarious agents. The Provider provides no guarantee and gives no assurances regarding the products sold via the product page (including guarantees as to the suitability of products for the contractual or usual purpose, the non-infringement of third-party rights or other guarantees arising from the performance of the agreement or commercial usage).
7.6 In certain cases, cookies are used in order to ascertain which end customers are found by the Partner. The Provider accepts no liability in the event that an end customer found by a Partner does not accept the setting of cookies and the sales generated in this way cannot be assigned to the Partner as a result. Furthermore, the Provider accepts no liability for lost commissions as a result of incorrect advertising media integration.
8. Obligations and liability on the part of the Partner
8.1 The Partner undertakes to act on its own responsibility and to comply with all legal regulations, in particular competition-law regulations, when advertising the programs on offer.
8.2 If the Partner operates its own website and places the Provider’s advertising material on this website, it is responsible for developing, operating and maintaining its website as well as for all material which is communicated on the website. It is responsible in particular for ensuring that no depictions of violence, sexually explicit content or discriminatory statements and portrayals as regards race, gender, religion, nationality, disabilities, sexual orientation or age appear on its website. Furthermore, it must ensure that the material depicted on its website does not infringe any third-party rights (including for example copyrights and trademark rights, the general right to personal privacy or other rights) and that the material depicted on its website is not offensive, slanderous or illegal in any other way. The Partner warrants that its website operations fulfill the requirements set out above in full. It shall indemnify and release the Partner from any claims asserted by third parties in cases in which such an assertion of claims is connected to the operation of its website, an action or omission either on its part or on the part of a representative, a member of staff, a contractor or vicarious agent, or can be attributed to it in any other way.
8.3 In the event that the Partner contravenes or disregards the above, the Provider reserves the right to prevent the Partner from accessing its account. In this case, any commissions generated may be retained until the matter has been clarified. Any commissions which have been generated illegitimately or in contravention of the rules set out on the Provider’s websites shall be forfeited.
9. Form of advertising
9.1 The advertising for the programs on offer may take the form of newsticker, link and banner-type advertisements. The Partner is entitled to come up with banners and texts of its own but may use these only after it has obtained written permission from the Provider.
9.2 The Partner is entitled to advertise on its own website the programs on offer. It may also take out advertisements on other Internet pages or in newsletters in its own name. The Partner itself must bear the costs of these advertising measures.
9.3 The Partner is entitled to place advertising material in any desired location, provided that the advertising material is not placed in a way which contravenes the provisions in this agreement or which could have a detrimental effect on the reputation or the prestige of the article or service, the brand or the business operations of the Provider or the Customer. In such cases, the Provider shall be entitled to demand that the Partner place its advertising material in an alternative location
9.4 The sending of unsolicited e-mails containing advertising for the programs on offer to unknown persons is forbidden. The same applies to other forms of advertising, e.g. via mobile telephone, telephone, fax etc., where the approval of the recipient is required in order to receive the advertisement. Advertisements in the form of discussion articles or other articles in forums or newsgroups are likewise forbidden.
9.5 The Provider will make no payment to the Partner for its own orders. The Partner therefore warrants that it will not use its own tracking ID in order to conclude a customer contract of its own for one of the programs on offer. The Partner also warrants that it will not forward its remuneration, either in whole or in part, to end customers of the Provider’s Customers.
9.6 The Partner guarantees that the websites on which it advertises do not infringe any third-party rights (in particular rights to personal privacy, copyrights and trademark rights). In particular, the Partner guarantees that the content available on the websites does not infringe criminal-law provisions or provisions designed to protect young people. It guarantees specifically that no pornographic content, content which endangers young people, content which could be detrimental to the development of children and young people, content which features in the list of media which could endanger young people, content which glamorizes war, content of a National Socialist nature, content which incites hatred towards specific racial or ethnic groups, content which encourages violence or racism or offensive content as well as instructions describing how to commit criminal acts can be accessed from the websites. The Partner shall be obliged to pay a standard contractual penalty of €1,000 to the Provider for each individual infringement if it places advertisements which can be attributed to it and are connected to the partner program of the Provider on websites which contravene this paragraph. The Provider’s right to assert further claims for compensation shall remain unaffected by this. Any contractual penalty shall be counted as part of any claims for compensation.
9.7 In the interests of clarity, all further partner obligations with regard to advertising are provided in a separate guidelines catalogue on the website of the provider. Partners may view the catalogue by visiting this link. The content of the guideline catalogue forms part of the agreement concluded between the partner and the provider. Partners will be obliged to comply with the stipulations contained within the guideline catalogue.
9.8 In the event that the Partner fails to comply with the stipulations set out in 9.1, 9.3, 9.4, 9.5, 9.6 or 9.7. it shall be excluded from the partner program with immediate effect. In this case, the Partner’s account shall be frozen immediately and the commission generated up until this point, minus a sum reserved by way of security for court and lawyers’ costs as well as any claims for compensation on the part of the Provider and/or third parties, deducted.
10.1 The valid commissions as well as available commission models for a particular account shall be made known and vary depending on the program. All Partners on an account shall be informed of any changes to commissions. By using the advertising media which have been made available or approved in writing, the Partner accepts the remuneration model indicated for the product and the terms and conditions for remuneration. Regulations concerning commissions for specific programs as well as other program-specific regulations are set out in the relevant terms and conditions for the program.
10.2 Commissions from a valid sale (cpo), direct commissions, 1st step: For each valid sale, the Partner shall receive the current valid commission set out in the end customer contract concluded as a result of its efforts. Commissions shall be paid out only for end customers acquired during the term of the agreement. In all cases, the Partner shall receive the commission only after payment has been received from the new end customer. End customers who fail to pay shall reduce the commission due to the Partner proportionally if the monthly calculation of the commission has not yet been carried out. Likewise, the commissions shall be retroactively reduced if it should come to light that an agreement with an end customer did not actually come into being or came into being under abnormal circumstances (e.g. erroneous multiple registrations by a single end customer or an end customer registered under a false name). End customers who reclaim a completed payment by return direct debit shall likewise reduce the commission due proportionally if the monthly calculation of the Partner’s commission has not yet been carried out.
10.3 Commissions from a valid sale (cpo), indirect commissions, 2nd step: In addition, the Partner shall receive the valid percentage share of sales achieved via another Partner when this other Partner was acquired directly by the first Partner for the purposes of the particular program advertised. All other payment regulations shall apply accordingly to the new Partner acquired by the existing Partner.
10.4 Commissions from a valid lead (cpl): For each valid lead, the Partner shall receive the lead commission which is valid at the time.
10.5 Commissions from clicks (cpc): For each valid click, the Partner shall receive the click commission which is valid at the time.
11.1 The click and lead commissions shall be paid out in the form of a bank transfer by the 5th day of the following month for the previous month in which the clicks or leads were generated. The sales commissions shall be paid out by the 25th day of the following month for the previous month in which the sales were generated. The Partner shall forgo any tendering of accounts. Only amounts of 20.00 euros or more shall be paid out. Any amounts under 20.00 euros shall be taken into account in the payment for the following month. No interest shall be paid on the credit on the Partner’s account.
11.2 The Provider shall pay out commission in the form of a credit which is paid into the bank account specified by the Partner, provided that all necessary account details have been given and these details are correct. Turnover tax shall be paid out only if the Partner is commercially active, has its office in Germany and has presented a copy of its business registration documents, proof that it holds a valid tax identification number and complete address details to the Provider. The Partner’s entitlement to demand that turnover tax be paid out shall begin on the day on which all necessary business details were entered in full. The Partner shall not be entitled to demand that turnover tax be paid out retroactively. The Partner itself shall be responsible for ensuring that it pays tax on the commission it has generated.
12.1 Any attempt to circumvent the partner system and the Provider’s accounting system using technical or other means shall be regarded as manipulation. Except in cases where written permission has been given, such manipulation shall include in particular modifications to the advertising media originally provided and offered by the Provider and instances in which technical or other means cause the system to count or register successes which are not actually occurring in the economic sense or are merely simulated.
12.2 The Provider shall notify the Partner concerned as soon as possible if it has cause to suspect that any manipulation has occurred. The Partner shall help to clarify the matter completely and truthfully without delay.
12.3 In the event of manipulations, the Provider reserves the right to prevent the Partner from accessing its account. In this case, any commissions generated may be retained until the matter has been clarified. Any commissions which have been generated illegitimately or in contravention of the rules set out on the Provider’s websites shall be forfeited.
12.4 The Provider reserves the right to institute legal proceedings against Partners which are guilty of manipulation.
13. Special agreements
Special agreements concerning remuneration and commissions must be made in writing and agreed in advance with the Provider.
14. Data protection
14.1 The Provider shall observe all provisions which are of relevance to the protection of data.
14.2 The Provider shall use the data provided by its Partners exclusively for the purposes which are set out in this agreement.
14.3 The Provider shall not sell any address data and shall not pass on any personal data to third parties.
15. Changes to the partner program and the Terms and Conditions of Use
15.1 The Provider shall be entitled to revise and change the service which it offers (both in terms of its content and function) or to suspend said service either in part or in full. This includes changes which are made as a result of changes in the law, the current administration of justice, technical changes or regulations and instructions issued by the authorities. In the event that the Provider suspends or makes changes to important services or technical functions which make up its overall range of services, the Provider shall notify the Partner of this fact in good time either in writing or via e-mail. In this case, the Partner shall have the right to terminate the agreement immediately by giving written notice. The Partner must exercise its right of immediate termination within 4 weeks of the suspension of or change to the service. If it does not do so, the suspension of or change to the service shall be deemed to have been approved.
15.2 The Provider shall be entitled to change the levels of commissions for parts of the partner program. However, the following conditions shall apply in this case. The Provider must inform the Partner of any changes either in writing or by e-mail and in good time, i.e. at least two weeks before the change in commission actually comes into force. The Partner shall have the right to terminate the agreement with effect from the date on which the change comes into force from the point at which it receives notification of the change. If the Partner does not exercise this right of termination by the date on which the change comes into force, the change shall be deemed to have been approved.
15.3 The Provider reserves the right to change or suspend any voluntary services which go beyond the scope of its contractual obligations. The Partner shall not be entitled to demand the retention of these services as a result of its use of the same.
15.4 The Provider shall be entitled to change or supplement these General Terms and Conditions of Business at any time by giving reasonable notice. The Partner shall be entitled to oppose any significant technical changes or changes to content. However, if the Partner does not oppose these significantly changed conditions within a period of two weeks following receipt of the new version of the General Terms and Conditions of Business, and at the latest by the point at which the changes are set to come into force, these changes shall take effect as announced.
Place of jurisdiction, applicable law, legal successors and other general provisions
16.1 The place of jurisdiction for all disputes arising either directly or indirectly from the contractual relationship shall be Regensburg, provided that the Partner is a registered trader or an administrator of assets under public law. In the event that the Partner is not permanently domiciled in Germany, the Provider shall be entitled to institute legal proceedings in the place where the Partner was last permanently domiciled. German law shall apply exclusively, even to services which the Provider uses from abroad. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
16.2 The Partner may offset its own claims against the Provider only if the Provider has acknowledged these claims or if these claims have been established in law in favor of the Partner.
16.3 Any amendments or supplements to this agreement as well as subsidiary agreements must be confirmed in writing by a legal representative of the Provider or a member of staff appointed by the Provider to represent it if they are to be effective. The same shall apply to the waiving of this formal requirement.
16.4 The Provider shall be entitled to transfer the agreement along with all rights and obligations to a legal successor by providing appropriate notification. In the event that the agreement is transferred to a legal successor, the Customer shall be entitled to terminate the agreement without having to give notice from the point at which this transfer takes place.
16.5 If this agreement stipulates that any declarations from the parties be made in writing, this refers to documents which are sent by post, fax or e-mail. Any declarations and invoices sent by e-mail shall be deemed to have been received one week after receipt on the e-mail account of the Partner, even if they were not opened.
16.6 In the event that individual provisions in the agreement or one of the provisions in the General Terms and Conditions of Business set out above should be or become invalid, either in part or in full, the effectiveness of the remaining provisions or parts of such provisions in the agreement and/or the General Terms and Conditions of Business shall remain unaffected as a result. The relevant legal provision shall take the place of the ineffective or missing provision. In the event that no legal provision which would be suitable as a replacement for the ineffective provision is available, the provision which the Partner and the Provider would have chosen, after weighing up the interests of both parties, had they been aware of the ineffectiveness of the affected provision in the agreement and/or the General Terms and Conditions of Business shall take the place of the ineffective provision. In the event that these General Terms and Conditions of Business and/or the agreement should contain a gap, this paragraph shall be applied accordingly and correspondingly.
Regensburg, July 1, 2008