1. FriendlyDuck S.r.l., hereinafter referred to as the "provider", is to provide a platform in the Internet under the domain http://Affiliate.FriendlyDuck.com, which allows registered members, hereinafter referred to as "partners", to participate in partner programs of the customers of the Provider,
2.these customers, hereinafter referred to as "customers", of the provider are companies which sell and market their products and services by means of advertising materials such as banners and links etc. over the Internet,
3.the subject of the partner programs is the provision of media services to support customers in the online sale of products and services based on performance,
the provider and the partners are basing their business relation on the following general terms and conditions of use, which apply as a supplement to the conditions of the particular partner program.
I. Definition of Terms
1. Account: An account is the legal access, which is attained by the partner according to his complete and accurate provision of the registration data, to the provider's platform after the registration.
2. Valid Click: A click is valid if a natural person, not identical or attributable to the partner, hereinafter referred to as the "user", voluntarily and consciously clicks on a hyperlink, which is attributable to the partner, for a partner program, thus opening the partner’s linked website. Repeated clicks or clicks which are made sequentially in a short time, by the same user on different hyperlinks are not valid. Forced clicks, for purposes other than learning the details of the advertised deal, which are connected with a compulsory action such as the sending of text message, the participation in a prize game or the use of the click in a paid e-mail system, are not permitted without the prior written approval of the provider. If such permission has not been given then those clicks, produced as described above, are not counted as invalid clicks. Valid clicks are to be recorded, verified and determined by the provider according to his own fair judgment.
3. Valid Lead: A lead is valid if a user makes a valid click and then voluntarily and consciously conducts a defined action ("qualified action") on the customer’s website. Valid leads are recorded and/or determined as valid clicks with the difference that, concerning the qualified action, these actions are recorded and verified for the provider by the customer's system and determined by the provider according to his discretion.
II. Registration for participation and prerequisites
1. When registering, the partner is to fill out the registration form completely and correctly from an objective perspective and with respect to the contents. In his own interest, the partner is to independently check his data in his account and immediately update them if needed. If independent updating of the data is not possible then the partner shall promptly notify the provider on changes to his data. In the case of incomplete data and data which is not current, the partner has no claim to the proper conduct of the transfer.
2. Partner program registration and participation require an e-mail address, the provision of the complete contact data and a minimum age of 18.
III. Start and end of the contract relation
1. The simple sending of the registration form does not lead to any contractual commitment. If a partner applies for a partner program, this application is considered to be an offer. Enabling of the partner for a partner program is considered to be acceptance. Thus, the contract is only concluded when the partner is enabled for a partner program. For this purpose, please see the meaning of the concluding remark to these general terms and conditions.
2.The participation in the provider’s partner program is free for the partner.
3.The contract for the participation in the provider’s partner program is valid indefinitely. 14-day prior notice must be given to terminate the contract. Both parties have the right to terminate the contract in writing by e-mail to affiliate@FriendlyDuck.com. For the purpose of verification, the e-mail transmission log is to be provided upon demand.
4.Each party is entitled to make termination for a good cause. Specifically, but not exclusively, good cause is considered the breach of sections II.1, II.2, V.1, V.2., VI.1, VI.3, VI.4, VI.5, VI.6, and IX.1.
5.Upon termination of the contractual relation, the partner shall remove all advertising materials (links, banners, etc.) from the website. As of the end of the contract, no further remuneration is to be paid even if successful advertisement continues.
IV. Obligation and liability of the provider and limited liability
1. After successful registration, the provider agrees to provide the partner with a partner ID and set up a separate account for the partner. With this account, the partner can review his current situation for the programs offered at any time.
2. The provider shall take all appropriate and economically justifiable measures to assure the operability and reliability of the partner program. However, the provider does not provide any guarantee that the single program web pages are operating properly on the particular participant and/or partner computer. The provider is also not liable for any impairments to website unavailability due to technical faults, on which the Provider has no influence, and events of force majeure.
3. The partners are responsible for partner websites and their content presentation. The provider did not have nor has any influence on the contents of the partner websites and thus herewith expressly disassociates himself from their contents.
4. The Partner is always liable for his own actions. The provider is not liable for damages, which were caused by the Partner, and claims resulting from these of any third parties. The partner expressly holds the provider harmless from such claims from third parties and to this extent the partner is obligated to pay in advance and to compensate for damages upon the first request of the provider.
5. The provider is fully liable for damages which were caused intentionally or due to gross negligence by the provider or his agents. The provider is also liable according to liability provisions for the product and claims due to initial inability or to imputed impossibility. Should the provider culpably commit a material breach of contract then the liability to pay damages is limited to those damages which are foreseeable and typically occur. An obligation is an essential part of a contract if the fulfilment of such an obligation is necessary to attain the goal of the contract.
6. In other respects, the provider is not liable for the partner’s loss of profits, loss of data or interruptions or defects in the operation of the website regardless of the legal grounds. This specifically applies in particular when product conditions change and /or products are discontinued during the advertising period. The provider’s liability limits and exclusions apply to his employees, representatives and agents. The provider accepts no responsibility and provides no guarantees concerning the product or products, which are sold on the product page, and this includes the guarantee for the suitability of the products for the contractual or usual purpose, the non-violation of rights of third parties or other guarantees, which result from the fulfilment of the contract or a trade custom.
V. Obligation and liability of the partner
1. The partner shall, under his own responsibility and under the observance of all statutory regulations and in particular the law on competition, advertise the programs offered.
2. If the partner operates his own website and if he provides advertising material of the provider on this website, the partner is responsible for the development, the operation and the servicing of his website and for all material which is communicated on the website. In particular, the partner is responsible for insuring that no portrayal of violence, sexually explicit contents or discriminating statements or depictions with respect to race, gender, religion, nationality, disability, sexual tendency or age appear on his website. The partner shall also insure that any material presented on his website does not violate the rights of any third party including, for example, copyrights and trademark rights, the general right to privacy or other rights and that the material presented on his website is not insulting or libellous or violates the law in another manner. The partner guarantees that the operation of his website completely fulfils the above requirements. The partner shall hold the provider harmless and compensate the provider for any claims by a third party, if any such claim is connected with the operation of his website, an action or omission on his part or by his representative, employee, contractor or agents or that is attributable to him in another way.
3. In the case of a violation or disregard, the provider reserves the right to block the access of the partner to his account. In this case, the commissions can be withheld until the clarification of the facts. Commissions, which were generated illegally or in contravention to the rules, which are defined on the provider's websites, are forfeited.
VI. Advertising measures
1. The advertising for the programs offered can basically be done in the form of news ticker, link and banner advertising. The partner is entitled to design banners and texts himself, but may only use these after receiving written approval from the provider.
2. On his own website, the partner may advertise the programs offered, but may also post advertisement on other websites or in newsletters in his name. The partner shall bear the costs for these advertising measures.
3. Basically, the Partner is entitled to place advertising material at any point unless such placement violates the provisions of this agreement or is intends to impair the reputation or the valuation of the product or service, the brand or the business operations of the provider or the customer. In these cases, the provider may demand a change of the placement.
4. The sending of undesired e-mails with advertisement for the programs offered to unknown persons is forbidden. The same applies to other advertising measures, which require the approval of the recipient for the receipt of the advertising, for example, by cell phone, telephone and fax etc. It is also forbidden to advertise in forums or newsgroups in the form of contributions to a discussion or other contributions.
5. The partner is not to receive any remuneration for transactions made with his own tracking-ID. Therefore, the partner guarantees that he will not conclude any customer contract for himself using his own tracking ID with one of the programs offered. In addition, the partner ensures that he will not pass on his full or partial remuneration to end customers of the providers’ customers.
6. The Partner guarantees that the websites, on which the Partner conducts advertisement, do not violate the rights of any third party and in particular rights to privacy, copyrights and trademark laws. In particular, the partner guarantees that the contents, which are provided on the websites, do not violate the provisions of the Criminal Code or the Children and Young Persons act and in particular that no content can be called up which is pornographic, morally harmful to youth or impair the development of children and youth or, which is included in the list of media morally harmful to youth, or which glorify war, is of a national socialistic nature, incite hatred and violence against segments of the population, incite violence or race hatred or content which is insulting, or is an instigation to commit a crime. The partner shall pay the provider a contractual penalty of a lump sum of €1000.00 for each individual violation if he conducts advertisement, which is attributable to him, in connection with the provider’s partner program on websites which violate the provisions of this paragraph. The right to additional damage claims by the provider is not affected by this. The contractual penalty is to be credited against any damage claims.
7. The partner shall be immediately excluded from the partner program in the event of breach of sections VI.1, VI.3, VI.4, VI.5 and VI.6. In this case, the partner’s account shall be immediately blocked and a deposit shall be withheld from the commissions accrued to date to cover legal fees and potential provider and/or third party damage claims.
1. Accrued commissions will be published in the account and vary according to the program. All partners shall be informed on changes to the commissions in the account. By using the multimedia tools provided or approved in writing, the partner accepts the commission model displayed for the product and the provided commission conditions. Program dependent commissions and additional program specific provisions are listed in the program conditions.
2.The partner states his acceptance of the commissions due by the provider for the rendered multimedia services, which are made up of a fixed part and a variable part calculated according to the criteria in subsequent point 3 describing how commissions due to the partner are calculated.
3.Commissions due to the partner for rendered multimedia services are calculated as described below and the amount negotiated with each publisher according to his website’s ranking
a fixed fee as access and use fee for the publisher’s website;
a fixed fee for each valid Click by single users and/or visitors on the customer’s website;
a fixed fee for each valid Lead by single users and/or visitors on the customer’s website;
a variable fee based on the actual benefit obtained by the provider concerning the number of visitors to the customer’s website, customers’ feedback on the latter’s activities and any other activity that provides the provider with visibility and/or prestige.
4.The partner states his awareness of the technological instruments and software used by the provider to calculate the amounts due to the partner for the rendered multimedia services and accepts them without any reserves.
5.Special agreements for commissions must be made in advance in writing with the provider
1. Click, lead and fixed commissions are paid by wire transfer no later than the fifth day of the month following the month in which the clicks or leads were generated; variable commissions are paid no later than the twenty-fifth day of the month following the month in which they are accrued. Thus, the partner waives any invoicing. Only amounts of €50.00 or more are to be paid out. For amounts of less than €50.00, these are to be credited to the following month. The credit balance in the partner account is not to bear interest.
2.Commissions due shall be credited on the current account indicated by the partner, if all of the data required for this are correctly provided in the account. Value-added tax is only paid, when due, if the partner is a business owner and has sent a copy of his business registration to the provider proving his valid tax number and complete address data. The partner has right to VAT payment as of the day in which all necessary business registration data is entered. No claim exists for the retroactive payment of the value-added tax. The partner is responsible for paying taxes on paid commissions.
1. Basically, misuse is any attempt to circumvent the partner system and the provider’s accounting system using technical or other means. Subject to written approval, this specifically includes tampering with the originally planned advertising materials offered by the provider and forcing the system to count or register successes, which did not actually take place in a business sense or were only faked, using technical or other means.
2. The provider shall inform the concerned partner as soon as possible on any suspicion of misuse. The partner shall promptly contribute to a full and true clarification of the facts.
3. In cases of misuse, the provider reserves the right to block the access of the partner to his account. In this case, the commissions can be withheld until the clarification of the facts. Commissions, which were generated illegally or in contravention to the rules, which are defined on the provider's websites, are forfeited.
4. The Provider reserves the right to initiate legal action against partners who are misusing the system.
X. Data Protection
1. The provider shall observe all privacy regulations.
2. The provider does not use the partners' data for any purposes other than those provided in this agreement.
3. The provider shall not sell any address data or disclose any personal data to third parties.
XI. Changes to the partner program and the terms and conditions of use
1. The provider is entitled to process and change the service rendered both with regard to contents and function, or fully or partially suspend it. This includes changes which are made due to changes to the law, current jurisdiction, technical changes or provisions and directions by the authorities. Should the provider discontinue or change essential services or technical functions for his services, the provider shall promptly inform the partner in writing or by e-mail. In this case, the partner may terminate the agreement in writing without notice. The right to termination without notice must be exercised by the partner within four weeks after the discontinuance or change to the service otherwise the discontinuance or the change to the service is considered to have been approved.
2. The provider is entitled to change the amount of the commission for parts of the partner program. However, the following prerequisites apply: The partner shall be promptly notified of a change, which means at least two weeks before the effective date of the commission change, in writing or by e-mail. As of the receipt of the written declaration, the partner has a right to termination without notice as of the effective date of the change. If the partner does not exercise this right of termination as of the time of the change then the change is considered to have been approved.
3. The provider reserves the right to replace, change or discontinue, if applicable, voluntary services which go beyond the contractual obligation. The partner cannot derive any claim for the retention of such services from the use of these services.
4. The provider is entitled to change or supplement these general terms and conditions at any time with reasonable prior notice. The partner is entitled to object to significant technical changes or changes to content. If the partner does not object to significantly changed conditions within two weeks of receipt of the revised general terms and conditions, however, no later then the time at which the changes are to go into effect, then these become effective according to the notification.
XII. Jurisdiction and applicable law
1. All disputes concerning the contract, its content and execution shall be submitted to the court where the respondent party resides.
2. The procedural and substantive law at the location of the proceedings applies.
XIII. General Provisions
1. No agreements in addition to these general terms and conditions exist. Conflicting terms and conditions of the partner are invalid if not expressly agreed on in writing. Unilateral confirmations of the partner with reference to his terms and conditions are to be expressly objected to in any case.
2. Changes or amendments to this agreement as well as subsidiary agreements must be confirmed in writing to be valid and such confirmation is to be by a legal representative or an employee of the provider, who has been appointed as a representative. The same applies to the revocation of this requirement to be in writing.
3. The provider is entitled to transfer the agreement with all rights and obligations by means of a declaration to a legal successor. If transfer is made to a legal successor, then the customer is entitled to termination without notice as of this time.
4. If the agreement requires the written form for declarations of the parties, then transmission by mail, fax or e-mail is intended. Declarations and invoices transmitted by e-mail are considered to have been received one week after the receipt on the partner’s e-mail account even if such e-mails were not opened.
5. If individual provisions of the agreement or one of the above provisions of the general terms and conditions are or become entirely or partially invalid, then the validity of the remaining provisions or parts of such provisions of the agreement and/or the general terms and conditions is not affected. Legal regulations are to replace the invalid or missing provision. Should no legal regulation be capable of replacing the invalid provision, the invalid provision is to be replaced by the provision the partner and the provider would have selected upon the appropriate consideration of their mutual interests, if they had been aware of the invalidity of the concerned provision of the agreement and/or the general terms and conditions. It these general terms and conditions and/or the agreement contain a loophole then this paragraph is to be applied accordingly or analogously.
Concluding Remark: The partner has carefully read and understood all conditions agrees to their validity by registration.
San Marino, January 24, 2011