ARTICLE 1. | DEFINITIONS
Insofar as nothing else results from the nature or intent of these provisions, the following definitions are used in these general terms and conditions with the following meaning:
- Affilaxy: the user of these general terms and conditions, forming part of Xyberwise B.V., having its registered office in Amsterdam, registered in the Trade Register under Chamber of Commerce number 70108803.
- Affiliate: any individual or legal entity or government body with whom/which Affilaxy has concluded an affiliation agreement or intends to do so.
- Affiliation agreement: each agreement concluded by the affiliate and Affilaxy, whereby the affiliate promotes one or more Affilaxy sites or introduces one or more third parties as affiliation partner to Affilaxy, whereby the affiliation generates an entitlement of an affiliation fee to be agreed, provided the relevant conditions as stated in these terms and conditions and in the agreement, have been complied with.
- Promotool: each promotool made available to the affiliate by Affilaxy and used by the affiliate as part of affiliation agreements, such as white-label websites, banners, registration forms, landing pages and pop-up, pop-under and plug-and-play profiles.
- Affiliate website: the website of the affiliate that uses one or more promotools the white-label website made available to the affiliate as part of the affiliation agreement.
- Affilaxy site: a website promoted by the affiliate, with the aid of one or more promotools, as part of the relevant affiliation agreement.
- In writing: both traditional written communication as well as digital communication saved on a durable data carrier, such as email communication.
ARTICLE 2. | GENERAL PROVISIONS
- These general terms and conditions apply to any offer by Affilaxy and any concluded affiliation agreement.
- Only the general conditions of Affilaxy are applicable to each affiliate agreement between Affilaxy and the affiliate. The affiliate expressly agrees to this by concluding the affiliate agreement and acknowledges that no other general conditions are or can be applicable.
- That which is stated in these general terms and conditions can only be deviated from in writing. If, and insofar as the parties have explicitly agreed otherwise, in writing to deviate from that which is stated in these general terms and conditions, then that which was explicitly agreed in writing by the parties applies.
- The dissolution or nullification of one or more of the current provisions does not affect the validity of the other clauses. In such an event, the parties are obliged to discuss a new provision to replace the provision in question, thereby taking into account the aim and the intent of the original provision.
ARTICLE 3. | REGISTRATION AND USE OF PROMOTOOLS
- In order to be able to conclude affiliation agreements, registration on affilaxy is required. The affiliation must correctly and fully provide the requested obligatory information upon registration.
- After registration on Affilaxy, Affilaxy will check the information provided by the affiliate in order to determine whether the registration complies with the terms and conditions imposed by Affilaxy.
- After the inspection referred to in the preceding subsection has been performed, Affilaxy will confirm the registration to the affiliate via email. After which the affiliate will have access to his account by entering his user name and password. If the registration of the affiliate does not comply with the terms and conditions imposed by Affilaxy, then Affilaxy will notify the affiliate of this via email.
- Affilaxy has the right to refuse the registration of the affiliate or consider it invalid without stating the reason for the refusal. Whether the terms and conditions imposed by Affilaxy have been complied with is based on that which has been stated in the preceding subsection.
- Anyone registering on Affilaxy and using promotools must comply with the following terms and conditions:
- The natural person applying for registration must be 18 years or older.
- Each affiliate website on which promotools is to be used must be suitable for this. Promotools can contain explicit erotic and pornographic materials. The affiliate must take due care of the reasonable standards regarding the public and common decency when using promotools on affiliate websites.
- Each affiliate website must be free from information that violates the law, public order or common decency. Affiliate websites with violent, child pornographic, discriminatory material, or containing other material that violates the law, are not permitted.
- Apparent mistakes and errors in any offer made by Affilaxy are not binding.
- The affiliate can use one or more promotools by using his user name and password. The affiliate is responsible for the installation of the promotools on his affiliate website in accordance with the instructions made available by Affilaxy. Affilaxy bears no responsibility regarding the installation of promotools. The affiliate can contact Affilaxy for technical queries and other support in the prescribed manner, such as via email, telephone or Skype, but Affilaxy is only bound by a best-efforts agreement and cannot guarantee that the results achieved are in line with the affiliate’s wishes regarding the provided support, such as regarding technical problems that hinder the correct use of promotools and the right to payment of affiliate fees.
- The affiliate is liable for all activities performed on his account on Affilaxy. The affiliate must keep his log-in details for access to this account confidential. All activities performed on the account of the affiliate are attributed to the registered affiliate.
ARTICLE 4. | CONTENT OF AFFILIATION AGREEMENTS
- The affiliate is only eligible to affiliate fees, notwithstanding that stated in subsection 2, subsection 3, subsection 13 and articles 5, if:
- visitors or users of the affiliate website are linked via a promotool and, in accordance with the systems of Affilaxy that register this, to the affiliate and those visitors or users have made a payment in favour of Affilaxy; or
- the affiliate introduces affiliation partners to Affilaxy and those partners generate affiliate fees via Affilaxy, whereby the affiliation partners introduced by the affiliate act as an affiliate within the meaning of these terms and conditions.
- In addition to that which has been stated in the subsection 1 under a, the affiliate is only eligible to the affiliate fees if:
- and, for as long as promotools have been installed in the prescribed manner on the affiliate website(s), or if the promotool concerns a white-label website, that website has been taken into use by the affiliate in the relevant prescribed manner, and;
- and as long as all white label websites used by the affiliate in the context of the affiliate agreement are active. If the affiliate uses multiple white label websites in the context of a single affiliate agreement and takes offline or otherwise deactivates one or more of those websites in the interim, Affilaxy will then be entitled on the basis of article 5 to terminate the affiliate agreement with immediate effect and take all of the affiliate’s white label websites offline, and;
- there are no technical limitations that make it impossible to measure traffic on the affiliate website(s) or the white-label website; and
- for as long as the affiliate is registered as such with Affilaxy, regardless of whether the affiliate (still) uses promotools.
- In addition to that which has been stated in subsection 1 under b, the affiliate is only eligible to receive affiliate fees if and, for as long as, the affiliate is registered as such with Affilaxy and the relevant affiliation partner is registered with Affilaxy in the prescribed manner by the affiliate.
- Leads as a result of incorrect targeting and/or targeting based on incorrect device types will not be paid out to the affiliate. If the affiliate, at the discretion of Affilaxy, generates leads of insufficient quality, to such a degree that better leads can be expected from the affiliate in all reasonableness, then Affilaxy is entitled to terminate any agreed upon CPL deal with immediate effect or to block the user account of the affiliate for an undetermined period.
- The affiliate has access to his account on Affilaxy via his user name and password, whereby the affiliate is provided with more information regarding the statistics that are relevant for the affiliate fees he generates.
- Visitors or users of the affiliate website(s), who register via a promotool on a Affilaxy site linked to that promotool, are linked to the affiliate for an indefinite period. This link means that when that visitor or user has purchased credit packs on the linked Affilaxy site, he is eligible for an affiliate fee for each purchased credit pack, which is calculated on the basis of a pre-determined percentage explicitly stated in the offer by Affilaxy. The affiliate percentage fee is calculated after deducting withholding tax (VAT) and transaction fees.
- The offer of promotools has various methods for the determination of affiliate fees; static or on the basis of sliding scales. If the affiliate fees are determined on the basis of sliding scales, the applicable scale depends on the number of purchased credit packs purchased by the visitors or users linked to the affiliate during a calendar month. The affiliate will again be placed in the lowest applicable sliding scale on the first day of each calendar month.
- The administration of Affilaxy automatically generated via its systems are leading in determining whether a visitor or user of the affiliate website is linked to the affiliate within the meaning of subsection 5, and in determining whether this visitor or user has performed a transaction on a Affilaxy site.
- Affilaxy only grants the affiliate a non-exclusive and non-transferable user right regarding the promotools and the accompanying house style, logos and other content, for the sole purpose of promoting Affilaxy sites. The affiliate must only use this user right in accordance with the instructions, directions and regulations of Affilaxy.
- The results of the traffic generated with the aid of promotools, generated transactions and the personal data of users and visitors of affiliate websites that Affilaxy obtains via the promotools, accrue exclusively to Affilaxy. Transactions entered into by users and visitors of the affiliate website on the basis of the promotools are agreements between them and Affilaxy. The affiliate can make no other claims regarding those transactions with respect to Affilaxy, other than those regarding the affiliate fees.
- Affilaxy is entitled at all times to adjust the promotools at subordinate points or otherwise, and is not liable for any damage resulting from this to the affiliate.
INTRODUCTION OF AFFILIATION PARTNERS
- Affiliation fees, in respect of the application of subsection 1 under b, are calculated on the basis of the pre-determined percentages of the affiliation fees of the relevant affiliation partners generated via Affilaxy. The administration of Affilaxy, automatically generated via its system is decisive in determining the affiliate fees generated via Affilaxy by those affiliation partners.
- The affiliate is not permitted to introduce affiliation partners who:
- are registered or reside at the same address as the affiliate.
- are a direct business partner of the affiliate, even if they do not act as such;
- already have an account at Affilaxy;
- use the same bank account number as the affiliate;
- exploit one or more of the same affiliate websites as the affiliate.
If it is determined, that, despite that which has been agreed, an affiliation partner acts contrary to that stated above of this subsection, then the right of the affiliate to the payment of any affiliate fee(s) will be cancelled, notwithstanding the other rights attributed to Affilaxy, including those stated in the next article.
ARTICLE 5. | GIVING NOTICE AND TERMINATION OF AFFILIATION AGREEMENTS AND LAPSE OF PAYMENT OF FEES
- All current affiliation agreements with the affiliate can be terminated by the affiliate via email (moc.yxaliffa@ofni). This termination will be effective immediately. The affiliation fees generated by the affiliate as of that moment are no longer eligible for payment.
- The current affiliation agreements with the affiliate will be terminated by email by Affilaxy with observance of a notice period of 14 days.
- Affilaxy actively monitors traffic, clicks, click-throughs, registrations, leads, payments and other affiliate program-related activities for potential fraud. If Affilaxy suspects that the user account of the affiliate was used in a fraudulent manner, then Affilaxy is entitled to block that account immediately and without prior notice, pending further investigation. If, as a result of that investigation, it shows, according to Affilaxy, that the affiliate has generated fraudulent traffic in some kind of way, then Affilaxy is entitled to dissolve the affiliation contract with immediate effect and to cancel any affiliation reimbursements still to be paid out in that context to the affiliate. Furthermore, in that case, Affilaxy is eligible to claim immediate return payment of all reimbursements already paid out to the affiliate in the context of the affiliate contract, also those which do not relate to fraudulent actions. To prevent the measures referred to above, the affiliate will need to prove in writing that no fraud was committed. This needs to occur within 30 days after Affilaxy has notified the affiliate of the intended measures. Furthermore, Affilaxy is entitled to terminate all ongoing affiliation contracts with the affiliate with immediate effect in the event that the affiliate otherwise acts in violation with any obligation which is imposed on the affiliate pursuant to these terms and conditions, the contract as such or pursuant to the law.
- If the affiliate generated affiliate fees, which would not have taken place if the affiliate had not been non-compliant of an obligation within the meaning of the previous subsection, Affilaxy is authorised to not pay these fees and to consider them cancelled.
- Affilaxy is authorised to terminate the current affiliation agreements with the affiliate, effective immediately, if and insofar as circumstances occur that are of such a nature that the compliance of the affiliation agreements becomes impossible (including liquidation of Affilaxy) or if the unaltered maintaining of affiliation agreements cannot reasonably be expected of Affilaxy.
- Until an affiliation agreement has been terminated, the affiliate can claim the payment of the applicable affiliate fees, subject to the relevant terms and conditions. Any affiliation fees generated after termination of an affiliation agreement are not eligible for payment.
- If and insofar as visitors and/or users of the affiliate website have good reason to reclaim payments from Affilaxy and affiliate fees have already been paid out to the affiliate on those payments, Affilaxy will immediately reclaim those affiliate fees from the affiliate.
- After termination of affiliation agreements Affilaxy is under no obligation to keep the data provided by the affiliate or data generated in its benefit.
ARTICLE 6. | CHANGES TO AFFILIATION AGREEMENTS AND FEES
Affilaxy is always authorised to change promotools, the agreed affiliate fees or any other content of the affiliation agreements, with due observance of a 14-day period after notification thereof to the affiliate in the understanding that subordinate changes, which may reasonably be assumed not to be objectionable for the affiliate, can be introduced at any time and without any prior notice. Reductions of affiliate fees will, in any event, not be introduced and will only take effect after the lapse of a 14-day period following the notification.
ARTICLE 7. | OBLIGATIONS OF THE AFFILIATE
- The affiliate is not authorised to transfer his accrued rights or obligations resulting from the affiliation agreements to a third party without prior written permission thereto from Affilaxy.
- The affiliate will pay all the costs he needs to make in order to use the services of Affilaxy.
- If the affiliate provides his subordinates, or other third parties within his company, access to his account on Affilaxy and obtains promotools, then the affiliate is fully liable for the usage of the account or the promotools by these subordinates or other third parties. The affiliate guarantees the compliance of all obligations resulting from the agreement, which apply as such regarding the use of promotools and services of Affilaxy, including the compliance with obligations by the abovementioned subordinates and other third parties.
- The affiliate will always clearly communicate that he acts as an independently operating party in respect of the use of promotools. The affiliate is not permitted to represent Affilaxy in respect of third parties, to conclude agreements, or to accept obligations or liabilities in respect of third parties on behalf of Affilaxy. The affiliate is solely responsible for setting up affiliate websites and the accompanying pages. In doing so, the affiliate will act in his own name and for his own account and risk.
- If the affiliate provides information in any way regarding the products or services offered by Affilaxy via the promotools, then this information must be truthful, not misleading and in accordance with the information on the relevant Affilaxy site.
- The affiliate is not permitted to publish negative responses about Affilaxy, e.g. via forums, without these being substantiated with sufficient proof. The affiliate must also refrain from any behaviour that could be harmful for the good name of Affilaxy and that is directly or indirectly promoted via the promotools. The affiliate is specifically not permitted to install software or scripts on affiliate websites that:
- forward visitors or users thereof to the Affilaxy sites in a misleading manner;
- register visitors or users thereof as paying customers without their consent.
- entice visitors or users thereof in a misleading or fraudulent manner to purchase products or services via Affilaxy’ site.
- give visitors or users thereof the impression that Affilaxy sites contain any unlawful content or offer any illegal activities, e.g. by using \'child porn\' or \'underage\', visibly or invisibly, as a search word when using promotool.
- The affiliate is only permitted to use the promotools for the benefit of Affilaxy and the affiliate jointly, and not to solely gain a benefit for himself. The affiliate is also not permitted to generate traffic or leads via the promotools, nor is he permitted to entice his colleagues, family members, friends and other acquaintances to do so.
- Promotools can exclusively be linked to the landing pages indicated by Affilaxy, which must remain fully visible for visitors and users of affiliate websites. It is not permitted to show promotools in any way, form, resolution, size or characteristics that deviates from that which has been made available.
- The affiliate is not permitted to send spam in order to further promote Affilaxy websites for the purposes of raising his affiliate fees. Spam is defined as the unrequested sending of commercial communications via email or any other means of communication, other than the use of the promotools on affiliate websites.
- The affiliate is not permitted to independently generate any payment page on affiliate websites with any functionality that violates the legislation of Payment Services Provider or any local legislation or regulations of the country in which the payment page applies.
- The affiliate is forbidden to promote the offer on Affilaxy sites by way of a system, whereby visitors and users of affiliate websites are repaid part of the costs, or will be repaid these costs at a later stage.
- The affiliate is not permitted to offer products and services of Affilaxy, including white labels and customs of products of Affilaxy in similar affiliation, CPA/CPL and other networks, other than those of Affilaxy, without the prior written permission thereto of Affilaxy.
ARTICLE 8. | AFFILIATE FEES AND PAYMENT
- The affiliate fees Affilaxy owes the affiliate will be calculated monthly and paid out within 14 days after the end of each month. This payment period can, however, not be regarded as a payment deadline.
- Payments of affiliate fees are accompanied by a detailed specification that is made available via the account on the affiliate on Affilaxy.
- The payment of affiliate fees is made via the payment method selected by the affiliate. The affiliate can choose from multiple payment methods, which he can select under his account on Affilaxy. The affiliate can always change the payment method, but Affilaxy will only effectuate such a change from the moment Affilaxy confirms the change to the affiliate by email.
- The affiliate warrants that all payment details it submits to Affilaxy, including where applicable its VAT identification number, are full and accurate, failing which Affilaxy accepts no liability whatsoever concerning the consequences thereof and the affiliate indemnifies Affilaxy against all third party claims.
- The affiliate guarantees that all the payment details he provides to Affilaxy are correct and complete; in the absence of which Affilaxy does not accept any liability for the consequences thereof.
- The affiliate must file the affiliate fees with the local tax authorities (in the Netherlands: Belastingdienst) he is subject to. Affilaxy does not bear any liability for the remittance of any taxes payable by the affiliate.
- For the affiliate with a Dutch Chamber of Commerce and VAT identification number subject to VAT, the affiliation fees are exclusive of 21% VAT. The affiliate will therefore also be paid the VAT which the affiliate must then remit to the Belastingdienst. For private affiliates who are not subject to VAT and are located abroad, the affiliate fees are inclusive of VAT. Those affiliates will therefore not be paid VAT.
ARTICLE 9. | LIABILITY AND INDEMNIFICATION
- Notwithstanding that which is stated in the remainder of these general terms and conditions, Affilaxy bears no liability for damage in respect of or caused by the incorrectness of the data provided by the affiliate, any other shortcoming in the compliance of the obligations of the affiliate pursuant to the law or the affiliation agreement, nor in respect of any other circumstance that cannot be attributed to Affilaxy.
- The affiliate is never entitled to any payment of damages with respect to the right exercised by Affilaxy to terminate affiliation agreements (effective immediately).
- The affiliate cannot derive any rights from any agreements made by Affilaxy with competitive affiliates.
- Affilaxy will do its utmost to keep the Affilaxy sites and promotools accessible and available, to the extent possible, for users and visitors of affiliate websites. However, Affilaxy bears no liability for damage resulting from the inaccessibility, unavailability or inaccurate operation of Affilaxy sites or promotools.
- Affilaxy is not liable for damage resulting from unauthorised use of login details for the accessing of the account of the affiliate on Affilaxy and the use of the promotools.
- Affilaxy is not liable for installation errors with respect to promotools. Affilaxy is not liable for viruses or other harmful components that cause damage to the hard- or software of the affiliate by way of the promotools or servers of Affilaxy or third parties, except in the event of intent and deliberate carelessness of Affilaxy.
- Affilaxy is never liable for indirect damage including loss, loss of profit and damage as a result of business interruption.
- Affilaxy is not liable for delays and/or errors with respect to the payment of affiliate fees, due to incorrect or incomplete information provided by or on behalf of the affiliate. The affiliate is always responsible for the correctness and completeness of the data he provides to Affilaxy.
- The affiliate guarantees, regarding his participation to the affiliate program of Affilaxy, that he does not violate local legislation and regulations in the country where he has his registered office, resides or is located. The participation in the affiliation program of Affilaxy is at the own risk of the affiliate. The affiliate indemnifies Affilaxy against all claims of third parties in this respect. The affiliate must realise that legislation and regulations outside of the Netherlands can deviate from Dutch legislation and regulations.
- However, if Affilaxy is liable, despite that which has been stated in these general terms and conditions, then this liability is limited to the total sum of the affiliation fees which the affiliate has been eligible to from Affilaxy for a period of six months preceding the event that caused the damage took place.
- The lapsing period of all legal claims and objections with regard to Affilaxy amounts to one year.
- If, and insofar as, the affiliate breaches that which has been stated in these general terms and conditions, affiliate agreements as such or any legal requirements, the affiliate indemnifies Affilaxy against any resulting damage and claims of third parties. If Affilaxy suffers damage as a result of such a breach, then the damage is payable by the affiliate.
ARTICLE 10. | CONFIDENTIALITY
The affiliate is not permitted to provide information and/or make notifications to third parties regarding the content of affiliation agreements and everything related to thereto without the prior written permission of Affilaxy, unless this information is already publicly accessible, or is necessary with respect to the introduction of affiliation partners.
ARTICLE 11. | INTELLECTUAL PROPERTY
- Affilaxy retains all intellectual property rights for the promotools made available to the affiliate and his work procedures and methods. Promotools cannot be adjusted by or on behalf of the affiliate and remains the property of Affilaxy at all times.
- Nothing from these general terms and conditions intends to transfer any intellectual property right to the affiliate. The affiliate is not permitted to remove or change any reference with regard to the intellectual property rights of Affilaxy.
ARTICLE 12. | FINAL PROVISIONS
- Each affiliation agreement and any resulting legal relations between the parties are exclusively subject to Dutch law.
- Before bringing a matter before the court, the parties must first try to resolve the matter amicably amongst themselves.
- Insofar as this is not deviated from by mandatory law, then only the competent court within the district where Affilaxy resides will be appointed to settle any legal disputes.
- If these general terms and conditions are available in multiple languages, the Dutch language version shall always be decisive for the interpretation of the clauses contained therein.