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
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
(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
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
(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
II. Affiliate Management for Software
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
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
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.
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
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
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
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.