(1) These Terms of Participation (hereinafter referred to as the “Terms”) apply to the contractual relationship between XXXX, the address, and the contractual partners (hereinafter “Partners”) of the TOAFL Affiliate Program (hereinafter referred to as the “Affiliate Program”).
(2) We render our services exclusively on the basis of these terms and conditions. Own terms and conditions of the partner require our express written consent and therefore will not apply even if we do not expressly object to their validity.
(3) The terms and conditions are only intended for entrepreneurs within the meaning of § 14 BGB. Consumers are excluded from participating in the Affiliate Program.
2. Conclusion of contract
(1) A contract between us and the Affiliate concerning the placement of advertising material is only concluded via our online application process at https://toafl.com/affiliate-area. By registering, the partner submits an offer for participation in the affiliate program and accepts the terms and conditions. A contract is only concluded when we expressly declare acceptance of the offer or release specific advertising material for the partner.
(2) There is no right to participate in the affiliate program and to conclude a contract with us. We can reject individual partners at any time without giving reasons.
3. Subject of the contract
(1) The subject of this agreement is the participation in the Affiliate Program, which aims to increase the sales of our products through our website. Participation in the affiliate program is free for the affiliate. For this purpose, we provide the Partner with a selection of advertising materials at its discretion via the Partner Program. At the same time we can offer different programs (in the following “campaigns”).
(2) The Partner places the advertising material released for him under its own responsibility on its websites registered and released in the Affiliate Program (hereinafter the “Affiliate Website”). The partner decides freely whether and how long he places the advertising material on the partner website. He is entitled to remove the advertising material at any time.
(3) For the application and successful placement of transactions (eg orders), the partner receives a commission, which depends on the scope and real value of the service. The details are given in the description of the respective campaign in the Affiliate Program and para. 7 of these terms and conditions.
(4) The Partner Program does not establish any other contractual relationship between the parties beyond this Agreement.
4. How the affiliate program works
(1) The partner must register with the data requested during registration for the affiliate program. After registration, a customer account will be set up for the partner through which the partner can manage its partner activities.
(2) For approved campaigns, we provide the partner with a specific HTML code for links and other advertising material that can be used to identify users of the partner websites when they click on the link. The partner must integrate this HTML code into their website to enable tracking.
(3) The partner also gives the partner access to certain statistical data on the advertising material used by us.
5. Our duties
(1) In our sole discretion, we provide the Partner with a selection of advertising material (eg banner ads, text links, videos and images) (hereinafter referred to as “advertising material”) for individual campaigns.
(2) We take appropriate measures to track visitors who access our website via the advertising material integrated into our website by the Partner (hereinafter “Partner Leads”). We also arrange for the assignment of any orders through Partner Leads (hereafter “Sales”) to the Partner.
(3) We operate our website and the services offered on it, such as the provision of product data, in our sole discretion, within the scope of the technical possibilities available to us. In this context, we do not owe any error and / or interruption-free availability of the website. The quality and correctness of the products and advertising materials offered on our website are at our sole discretion.
(4) In addition, we undertake to pay the compensation acc. Para. 7 under the conditions specified there.
6. Rights and obligations of the partner
(1) The partner may only integrate the advertising material in the partner websites. The partner is expressly prohibited from linking the provided links with other advertising media (eg in newsletters or social media) and / or making changes to the advertising material. The advertising materials may only be used on the partner websites for the purposes provided for in this contract.
(2) The Partner is responsible for the content and operation of the Partner Website itself and will not place any Content that violates and / or is contrary to the applicable law, morality or rights of third parties during the term of this Agreement Reputation to hurt. We are authorized, but not required, to review the Partner Sites. In particular, the partner is prohibited from distributing content that
- Glorification of violence and extremism of any kind,
- Appeals and incitement to criminal offenses and / or infringements, threats against life, limb or property,
- Rushing against people or businesses,
- infringing statements, slander, defamation of honor and slander by users and third parties as well as violations of the right of unfair competition,
- copyright infringing content or other infringement of intellectual property rights or
- sexual harassment of users and third parties
represent, concern or contain. Such content may not be integrated on the affiliate website itself nor may it be linked from the affiliate website to corresponding content on other websites.
(3) Any form of abuse, ie the generation of leads and / or sales through unfair methods or improper means that violate applicable law and / or these terms and conditions is prohibited. In particular, the Partner is prohibited from attempting, by itself or through any third party, to generate leads and / or sales through one or more of the following practices or to associate Sales with the Affiliate:
- Mocking of leads or sales, which in fact did not happen, eg by the unauthorized indication of strangers or the indication of false or non-existing data when ordering goods on our website,
- Use of forms of advertising that enable tracking, but do not display the advertising medium, imperceptibly or not in the specified form and / or size,
- Cookie Dropping: Cookies may not be set when visiting the website, but only if the user of the partner website has previously voluntarily and consciously clicked on the advertising material.
- other forms of affiliate fraud (especially cookie spamming, forced clicks, affiliate hopping) and the use of layers, add-ons, iframes and postview technology to increase leads
- Use of terms protected for us or third parties, in particular trademarks, for example in search engines, in advertisements or in the promotion of the partner website without our express prior written consent. In particular, the Partner is prohibited from providing websites on the Internet that could lead to a likelihood of confusion with us or with products offered by us. In particular, the Partner may not copy from us our website, landing pages or other appearances or copy graphics, texts or other content from us. The Affiliate must avoid the impression that the Affiliate Site is a project of ours or that its operator is economically related to us in a way that goes beyond the Affiliate Program and this Agreement.
(4) The partner undertakes to operate the partner website also in accordance with applicable law and in particular to keep a proper imprint.
(5) E-mail advertising that contains advertising material or otherwise advertises for us may only be made if it has been previously approved by us and for all addressees an explicit consent to advertising by e-mail and a verification of the E-mail address was carried out and documented by a double-opt-in procedure.
(6) The Affiliate will promptly remove promotional material from the Affiliate Website when prompted by us. This also applies, in particular, to websites on which we do not or no longer wish to incorporate the advertising material for whatever reason.
(7) The partner will renounce a reference to us and our products in any application of the partner website. In particular, the Affiliate will not serve any contextual advertisements (including Google AdWords or AdSense) that contain our name, company keywords, or trademarks or that are served based on the use of keywords. The same applies to the names of our products.
(8) The Partner undertakes to refrain from electronic attacks of any kind on our tracking system and / or our websites. In particular, attempts to overcome, circumvent or otherwise override the security mechanisms of the tracking system, the use of computer programs for automatic data readout, the use and / or distribution of viruses, worms, Trojans, brute Force attacks, spam or the use of any other links, programs or procedures that could damage the tracking system, affiliate program or individual affiliate program participants.
(1) The contractual partner receives from us a performance-related remuneration for sales, which are carried out on our website by partner leads.
(2) The right to payment of the remuneration arises only under the following conditions:
- through the advertising activity of the partner, a sale of an end customer with us came about,
- the sale has been tracked by us,
- the sale has been approved and confirmed by us
- there is no abuse within the meaning of para. 6.3 of these terms and conditions.
(3) A sale is deemed to be a complete order generated by an end customer on our website, which was also paid by the end customer. Reversals – for any reason whatsoever – are not considered a sale if the end customer has not paid or any payments made by him are reimbursed. Reversals that occur more than 8 weeks after the end customer’s payment will be disregarded.
(4) Orders of the partner or his relatives are not subject to remuneration.
(5) Orders that are not based on partner leads that have been generated via partner websites or other advertising space where we have asked the partner to remove the advertising material are not subject to remuneration. This applies from the time of the request.
(6) Decisive for the question of whether a sale is based on a partner lead is the tracking system we use. Unless otherwise stipulated in the Affiliate Program or individual campaigns, the “Last Cookie Wins” principle applies for a cookie duration of 30 days. We are not liable for payment if and as far as the tracking system fails or any other malfunction is caused, which means that an assignment of leads or sales to individual partners is not possible or only with considerable effort.
(7) The amount of the remuneration depends on the commission indicated in the respective campaign at the time of the sales. Unless stated otherwise, a commission of 10% of the net price of the respective sales is valid.
(8) All specified commissions are net and will be paid plus VAT.
(1) We will provide the partner with a settlement of the remuneration claims in his customer account. The partner will check the billing immediately. If the partner has objections to a settlement, these must be made known to us in writing within four weeks. After expiry of this period, the settlement will be considered as correct.
(2) Remuneration claims shall be due for payment in each case two months after the end of the month in which the end customer’s payment for the relevant sale falls. Remuneration claims are only due if a minimum payout of 25, – Euro is reached. The partner has the right to demand even smaller amounts for reimbursement of a flat processing fee of 5, – Euro. The fee will be deducted from the amount to be paid.
(3) The payment is made by bank transfer with a debt-discharging effect to the bank account specified by the partner in the customer account. Any bank charges (eg bank accounts abroad) are charged to the partner.
(1) Unlimited liability: We are fully liable for intent and gross negligence as well as in accordance with the Product Liability Act. For slight negligence we are liable for damages resulting from injury to life, limb and health of persons.
(2) For the rest, the following limited liability applies: In the event of slight negligence, we shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which enables the proper execution of the contract in the first place and on whose compliance the partner can regularly rely (cardinal duty). The liability for slight negligence is limited in amount to the damage foreseeable at the time of conclusion of the contract, the occurrence of which is typically to be expected.
(3) A further liability of us does not exist.
(4) The above limitation of liability also applies to the personal liability of our employees, representatives and organs.
10. Indemnity claim / Contractual penalty
(1) The Partner indemnifies us and our employees or agents in the event of claims for alleged or actual infringement and / or infringement of third-party rights by the Partner in connection with the Affiliate Program from all resulting third-party claims. In addition, the Partner undertakes to reimburse all costs incurred by such third party claims. Reimbursable costs include the costs of proper legal defense.
(2) The partner commits himself, for each case of abuse acc. Para. 6.3 to pay a contractual penalty to be determined by us in its reasonable discretion and to be reviewed by a court in case of dispute. The penalty will not exceed 12 times the partner’s strongest monthly turnover within the last six months prior to abuse. Further claims for damages remain unaffected by this regulation.
11. Rights of use
(1) The advertising material and our other contents are protected by copyright and / or other industrial property rights. For the duration and purpose of this agreement we grant the partner a simple and non-exclusive right to use the advertising material.
(2) Any alteration, duplication, distribution or public reproduction of the advertising material or of a part which is substantial in nature and scope requires our prior written consent, insofar as it goes beyond the scope granted in paragraph 1 above.
(1) The Partner undertakes to keep all knowledge of our trade and business secrets or other confidential information obtained within the framework of the contractual relationship secret for an unlimited period of time (even beyond the end of this contract), only to use it for the purposes of the contract and, in particular, not to pass on to third parties or otherwise exploit. If information from us is classified as confidential, the irrefutable presumption that it is business or trade secrets applies.
(2) The contents of this contract and the associated documents are to be treated by the partner as confidential (as trade and business secret).
(3) The Affiliate shall obligate its employees and other persons whom it uses for the fulfillment of its contractual obligations to maintain confidentiality in a manner consistent with the preceding paragraphs 1 and 2.
13. Contract period and termination of the contract, lock
(1) The contract runs indefinitely and may be terminated by either party at any time without notice and giving reasons.
(2) In addition and in addition, the right of the parties to terminate the contractual relationship by extraordinary termination for good cause remains unaffected. For us, there is an important reason that justifies the extraordinary termination, especially in the following cases:
- serious breach by the partner of obligations of this contract, in particular a violation of para. 6.2, 6.4 and / or 6.8,
- Breach of obligations of this contract and failure to correct or discontinue the breach despite our appropriate request,
- a case of abuse within the meaning of para. 6.3.
(3) The termination can be done by e-mail. Any notice given by e-mail will be deemed to have been received on the day it is sent to the e-mail address provided by the Partner in the Account. We can also declare the termination by restricting access to the customer account. The partner can also declare the termination by deleting the customer account. The contract is terminated upon receipt of the termination.
(4) After termination of the contract, the partner is obliged to remove all advertising material and other links and content from us immediately from the partner website. This also applies to websites or other advertising media in which the partner has integrated the advertising material or links without being entitled to do so.
(5) Leads and / or sales generated after termination of the contract do not result in any obligation to pay.
(6) Instead of termination, we may, in the cases of para. 13.2 also block the customer account. This also applies if only a reasonable suspicion of misuse acc. Para. 6.3 exists. We will inform the partner of the reason for the suspension and unblock it once the reasons for the suspension have been clarified and if necessary eliminated. Leads generated during the period of suspension do not result in a duty to pay.
14. Final provisions
(1) Should the contract contain ineffective regulations, the validity of the rest of the contract remains unaffected.
(2) We reserve the right to change these terms and conditions at any time. Any changes will be communicated to the partner by e-mail. If the partner does not agree with the changes, he is entitled to inform us of this until the expiry of four weeks from receipt of the change notification. In this case we have a special right of termination. If such notice is not given within this period, the changes shall be deemed accepted and shall come into effect upon expiry of the time limit.
(3) This contract is subject exclusively to German law.
(4) If the partner is a merchant, a legal entity under public law or a special fund under public law, Germany shall be the place of jurisdiction for all disputes arising out of or in connection with contracts between us and the partner.