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Affiliates - Terms and Conditions

Standard Terms and Conditions, Affiliate Program / Affiliate Management Premium.

The following Standard Terms and Conditions are intended for (i) Web site owners (hereafter, "Affiliates") who wish to participate as Affiliates in the affiliate program provided by element 5 (governed by I. in these Standard Terms and Conditions) on the basis of these Standard Terms and Conditions and also for (ii) Software Publishers who distribute their software products through downloading via the inclusion of the services of element 5 AG, Vogelsangerstrasse 78, 50823 Cologne, Germany and its subsidiaries (together hereafter, "element 5") and who wish to make use of the additional service provided by element 5 (hereafter, "Affiliate Management", governed under II. in these Standard Terms and Conditions) for integration of the affiliate program provided by element 5. Under the terms of this Affiliate Management "Software Publisher's Control Panel" shall mean the password protected secure interface on element 5's Web servers that allows the Software Publisher to gain access to sales and End User data through an encrypted connection and change Software Publisher related settings, e.g. the commission of the Affiliate. Under the terms of this Affiliate Management "Affiliate's Control Panel" shall mean the password protected secure interface on element 5's Web servers that allows the Affiliate to gain access to referred sales through an encrypted connection and change Affiliate related settings, e.g. fill in its personal data, define its own default style, request for new cooperation with Software Publishers or terminate cooperation.

I. Affiliate program

1. Object of the affiliate program

The object of the affiliate program provided by element 5 (hereafter, "Program") is to publish electronic advertisements on the Web site of the Affiliate for selected software products offered by element 5 Software Publishers. Instead of fixed compensation, the Affiliate receives, in exchange for publishing the advertisement, result-dependent advertising cost compensation (Also known in the element 5 Control Panel as "Commission") from the Software Publisher. The advertising cost compensation depends on the sales generated by end users referred via the electronic advertisement / the link of the Affiliate.

2. Participation by the Affiliate

Participation by an individual Affiliate in the Program is dependent on activation by the Software Publisher. Following sign-up by the Affiliate, element 5 will send an appropriate e-mail to the publisher with a request to activate the Affiliate. Once the Affiliate is activated by the Software Publisher, the Affiliate will be a participant in the Program under these Standard Terms and Conditions.

3. Products under the agreement

(1) The products under the agreement are software products designated by the respective Software Publisher for this purpose and which can be selected by the Affiliate from a product catalog in the Affiliate Control Panel.
(2) Following initial activation of a product under the agreement, the Affiliate has the opportunity to choose further software products (including those from other Software Publishers), as found in the Affiliate's control panel under the appropriate column and to offer them on its Web site under these Standard Terms and Conditions. However, the offering of these new products is dependent on the Software Publisher enabling the Affiliate for the respective software under this agreement.

4. Control Panel

(1) After successfully completing the sign-up process for participation in the Program, the Affiliate will be sent a user ID and a password to enable access to the "Affiliate Control Panel" provided by element 5. With the user ID and password, the "Affiliate Control Panel" provides the Affiliate with access, via a secure online connection, to a secure area on element 5's Web server so that the Affiliate may, at any time, view the number of software sales it has referred as well as change other settings.
(2) When using the user ID and password, the Affiliate shall observe the following obligations and precautions: (i) Only the Affiliate may use the user ID and password. (ii) The user ID and password shall be kept strictly confidential. The Affiliate shall take due care to ensure that no unauthorized parties learn the user ID and/or password. (iii) If the Affiliate loses its user ID and/or password or if there is a possibility that an unauthorized party has learned the user ID and/or password, the Affiliate shall immediately report this to element 5, which can then block access by the Affiliate to the Control Panel. All actions carried out with the user ID and password will be attributed to the Affiliate.

5. Integration of the link

(1) The Affiliate shall integrate the product under the agreement using the appropriate link on its Web site; the link points to the order form operated by element 5. This link is generated by a link generator for the respective product under the agreement. The link generator is located in the secure area of element 5's Web site in the "Affiliate Control Panel". The generated link contains an individualized affiliate user ID by means of which any sales can be attributed to the Affiliate. Proper technical integration of the link is the responsibility of the Affiliate. If the links do not function, no advertising cost compensation will be paid.
(2) The Affiliate shall indicate on its Web site that (i) It is acting as an Affiliate of the respective Software Publisher and (ii) The Software Publisher is the supplier of the product and the payment process is administered by element 5.
(3) The Affiliate shall produce a brief description for each activated product on its Web site. The Affiliate is responsible for the content, the style and the layout of this information. The Software Publisher can provide the Affiliate with graphics and text in an electronic format for use in describing the product, which the Affiliate shall use for the purpose of advertising the products under the agreement and links according to the instructions of the Software Publisher. The Affiliate should be aware that the product prices and availability can change at any time. It is not recommended to indicate (or copy) the price onto the Web site of the Affiliate. Maintenance of these product prices is possible only on the Web sites of the Software Publisher and the Publisher's corresponding site operated by element 5.

6. Order handling

(1) element 5 shall be responsible for complete order administration for the referred end user according to the terms and conditions of the underlying electronic software distribution agreements between the Software Publisher and element 5. element 5 shall arrange the order forms on its Web server; receive payments from the referred end users and forward these payments, less the Affiliate's agreed advertising cost compensation and the service fees and relevant value added tax (VAT) to the Software Publisher; handle refunds and returns according to the provisions of the underlying electronic software distribution agreement; and provide end user service relating to the administration of the order. The Software Publisher shall provide technical end-user service.
(2) element 5 reserves the right to reject queries and orders which do not meet its requirements; this can include in particular orders by referred end users who do not meet credit requirements, who do not authorize direct debiting from their bank account or who do not present a valid credit card.
(3) An agreement by the Software Publisher with the referred end user does not come about until a written or electronic order confirmation by element 5 in the name of the Software Publisher has been executed or when element 5 begins to fulfil the agreement. Typographical, printing and computation errors on the Web site of the Affiliate shall be charged to said Affiliate.

7. Advertising cost compensation

(1) For the duration of its participation in this Program, the Affiliate shall have a claim for payout of its advertising costs. This claim arises if an end user accesses, via the integrated link of the Affiliate on its webpage, the order pages hosted by element 5 for the product under the agreement and uses the automatic ordering system by going through the registration and payment process such that the Affiliate's link is deemed to be directly causative for the entry into the agreement with the Software Publisher and payment meeting all requirements is made irrevocably ("agreements arising in a qualified manner").
(2) Insofar as the referred end user accepts cookies when clicking on Affiliate's link, proceeds from orders will be taken into account which do not arise directly successively in a single session but which arise within the lifespan of the cookies used and possibly within the special action of the Software Publisher via the integrated link.
(3) element 5 shall record and compute on a monthly basis the amount of said advertising cost compensation for the affiliate.
(4) The computation basis for determining the value of the advertising cost compensation is given by the gross sales price (including taxes) actually invoiced to the referred end user. The amount of the respective advertising cost compensation shall be individually stipulated between the Software Publisher and Affiliate, but shall not exceed 50% of the effective gross sales price of the software.
(5) The advertising cost compensation shall not be paid if and insofar as it is determined that the end user will not meet its payment obligations or will meet them only partially, or if for any other reason the invoice to the end user was cancelled. Any advertising cost compensation previously paid in such cases must be reimbursed.
(6) The payment of the advertising cost compensation shall take place monthly insofar as the sum due exceeds a value of 100 EUR / 100 USD. If this is not the case, the sum due can be retained until a total value of at least 100 EUR / 100 USD is reached, at the latest, however, upon termination of the Affiliate's participation in the Program.
(7) The payment can be made by wire transfer, Direct Deposit (US-only) or check, as chosen by the Affiliate.
(8) If a chargeback of a credit card charge, a debit advice or other return of the software product occurs by the referred end user, then, if the advertising cost compensation was previously paid by element 5, it can be credited to the Software Publisher and offset or invoiced in the next payment cycle of the Affiliate.
(9) The invoicing is deemed to be approved if the Affiliate does not object in writing, including a statement of reasons, within four weeks.

II. Affiliate Management for Software Publishers

8. Object of Affiliate Management

Within the context of the founding and administration of Affiliate Management, element 5 acts as a service provider for the Software Publisher and handles the administration of the software delivery agreement with respect to the referred end user as a representative of the Software Publisher according to the terms and conditions of the governing electronic software distribution agreement between Software Publisher and element 5.

9. Participation by the Software Publisher

(1) For the Software Publisher to participate in Affiliate Management, it must state its agreement with these Standard Terms and Conditions and integrate the Affiliate Program using a suitable link to its Web site or make it available to the Affiliate in some other way.
(2) To generate revenues through this Program by means of sales referred by the Affiliate, the Affiliate must be activated after successfully signing up by the Software Publisher in the Control Panel. The Software Publisher will be informed that the Affiliate has signed up by an e-mail from element 5 which includes a request to activate the Affiliate.
(3) By configuring the settings in the Control Panel, the Software Publisher determines the amount of the success-based advertising cost compensation. If the Publisher does not configure any settings, then it will accept the default settings proposed by element 5 when activating the Affiliate. Prior to making changes in the Control Panel regarding the amount of the advertising cost compensation, written notification must be given to element 5 and the Affiliate.

10. Integration of the link

(1) element 5 shall make available to the Software Publisher a hyperlink which points to the appropriate sign-up form for the Affiliate Program. The link is provided in the secure "Software Publisher Control Panel" on element 5's Web site under the column labeled "Affiliate Management".
(2) Every Affiliate must fill out the sign-up form once prior to participating in the Program and agree to these Standard Terms and Conditions. Afterwards, the Affiliate can also advertise further products under this agreement (see above § 3) after activation by the respective Software Publisher.

11. Service fee charged by element 5 AG

For each sale administered by element 5 of the software under this agreement, element 5 shall receive an additional service fee of 2% of the gross sales price (including taxes). The further invoicing terms are obtained from the existing business relationship and the electronic software distribution agreement between Software Publisher and element 5.

III. General terms

12. License

Upon activation of the Affiliate, the Software Publisher grants the Affiliate a non-exclusive, revocable right to use provided advertising material, notices and all further presentations (insofar as available - also known hereafter as "Material") only for the purpose of designating its Web site as a "partner Web site" and presenting the designated advertising Material. Under no circumstances may the transferred Material be edited or modified without prior written permission of the Software Publisher. element 5 and the Software Publisher retain all rights with regard to their logos, their trade name or their trademarks and other commercial protection rights. The Software Publisher is authorized to revoke the license granted to the Affiliate at any time by written notice.

13. Changes to these provisions

element 5 reserves the right to modify and supplement these Standard Terms and Conditions at any time. The current version will be maintained for viewing on the web pages operated by element 5 in the general area of the Control Panel as a hyperlink. Moreover, element 5 will announce any changes to these terms via e-mail. Within 14 days of the announcement of changed participation terms, Affiliates and Software Publishers may object to such changes. If no objection is received during this time, the participant is deemed to have accepted the changes and they will become part of the existing relations under the agreement.

14. Correspondence

Correspondence shall take place preferably via e-mail, which is accorded the same status as postal mail. Qualifying dates are always agreed as "Reception by receiver", unless otherwise agreed. For e-mail, the reception of the message on the destination mail server is deemed to be the time of reception.

15. Independence of relations under the agreement

The parties to the contract shall operate their Web sites independently of one another and are solely responsible for the content, the technology used and the design. This agreement may not be construed as establishing between the parties a company or an association, nor does it establish an employment relationship or a commercial agent agreement. The parties to the agreement are not authorized, with the exception of element 5 for the Software Publisher, to act in the name of the other party and/or to accept offers for the Software Publisher or make statements.

16. Warranty by the party to the agreement for its Web site

(1) The Affiliate shall be responsible for the entire content of its Web site. It guarantees in particular that (i) It will integrate transferred advertising Material according to the provisions and instructions of the Software Publisher into its webpage insofar as said Material was transferred to the Affiliate; (ii) The material used on its webpage will not contain any representations of violence, sexually related contents or discriminatory statements or representations with regard to race, sex, religion, nationality, handicap, sexual preference and orientation, or age, nor will said Material be unlawful in any way; (iii) The Material used on its Homepage will not infringe upon the rights of third parties, particularly patents, copyrights, trademarks or other commercial protection rights as well as general personality rights and cannot be mistaken for the products of the Software Publisher and/or element 5 or a Web site operated by the Software Publisher and/or element 5; (iv) It will not send any e-mail without the express consent of the receiver(s) (no spam policy).
(2) The Affiliate shall warrant the above named properties of its Web sites and indemnify element 5 and the Software Publisher from any and all claims by third parties which arise due to the non-performance of the warrants.

17. Limitation of liability

(1) The parties exclude mutual liability for slightly negligent violation of obligations in connection with this agreement, with the exception of § 16 and § 5 (3) of this agreement. This includes in particular the liability exclusion for lost profit, the loss of data or interruption to or errors in the operation of the Web site of the Affiliate. The above liability exclusion also applies to the personal liability of employees, representatives and persons employed to perform the obligations of the parties to the agreement. The limitation of liability does not apply to claims arising through initial incapacity or in case of justifiable impossibility. (2) Any possible product liability claims are unaffected by the above limitations. Insofar as element 5 or the Software Publisher violates an essential obligation under the agreement, the obligation to pay restitution is limited to the damages which typically arise. (3) element 5 makes no warrants with regard to the software suppliers' software products offered via its Web site. Moreover, element 5 does not warrant to the Affiliate that the operation of its Web sites will be maintained without interruptions and without errors. Liability is expressly excluded for the consequences of such interruptions or errors.

18. Agreement period / cancellation

The parties enter into this agreement for an unlimited period of time and they can cancel it any time, without supplying a reason, through written notification or by making suitable settings in the respective Control Panel.

19. Termination of the agreement

(1) When the agreement ends, all usage rights of the Affiliate and Software Publisher accorded by this agreement with regard to the provided logos or webpage contents expire.
(2) Upon termination of the relationship under this agreement, the Affiliate is obligated to undertake all of the technical measures necessary to delete from its Web site all links which point to the Web sites of element 5 or to the Software Publisher. The same applies upon termination of Affiliate Management for links of the Software Publisher which were established in connection with the participation in Affiliate Management on its Web site.
(3) element 5 is authorized to retain payments upon termination of the relationship under this agreement for up to 30 days after the end of the respective quarter and to offset any returns with the account receivable claim of the Affiliate in the name of the Software Publisher.

20. Final provisions

(1) Requirement for written form
Additional agreements, changes or additions are valid only if element 5 and the Software Publisher have confirmed them in writing. The same applies to the warranting of properties.
(2) Severability clause
If any provision of this agreement is or becomes invalid, the validity of the remaining provisions shall not be affected. Insofar as a provision is invalid, the parties will agree on a new provision which comes as close as possible to the intent of the invalid provision and which is legally valid.
(3) Applicable law and jurisdiction
Even in case of agreements with foreign (non-German) Software Publishers and Affiliates, the law of the Federal Republic of Germany applies. The place of jurisdiction for all claims arising in connection with this business relationship is Cologne, Germany.
(4) Force majeure
If, for reason of force majeure, a party is unable to fulfill its obligations under the agreement, it shall immediately inform the other party thereof and do everything in its power to resume normal operations as quickly as possible. In such a case, the affected party shall not be deemed to be in breach of contract and cannot be held liable.

 
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