§ 1 Scope of application; amendments to the Terms and Conditions
These Terms and Conditions shall apply to the participation of Advertising Media Owners and Operators (so-called Publishers / Werbeträger / Publishers), in the Advertising Media Services offered by Auerswald Marketing SL., Ctra. Cap de La Nao Pla Numero 16 1-18, 03730 Xàbia, represented by its management (hereinafter referred to as ” Auerswald Marketing SL.” or “we”), in services such as commission programs and similar campaigns.
Auerswald Marketing SL. reserves the right to amend these terms and conditions. Auerswald Marketing SL. shall notify the Publisher of any changes by e-mail and in doing so shall inform the Publisher that these changes shall be deemed accepted if the Publisher does not object to the changes within four weeks.
§ 2 Subject matter of the contract
Auerswald Marketing SL. offers a platform for cross-media (e-) marketing under the name “Adlesa”. In principle, this shall involve the processing of commission programs which are connected and running at the relevant time. Within the scope of these commission campaigns, the publisher may place links (also referred to as “advertising media”) of a third party customer (advertising customer/agency) on an advertising medium operated by Auerswald Marketing SL. in order to receive an advertising cost subsidy and/or defined commissions for this. Auerswald Marketing SL. shall take over the technical and accounting processing of the commission campaign for the advertising customer/agency and publisher or the advertising medium used in each case.
Services in the area of consulting as well as exclusive and/or non-exclusive sale and representation of advertising media and spaces shall also be offered on a case-by-case basis; necessary additional agreements and contract supplements shall be concluded separately in these cases.
§ 3 Conclusion of Contract
Prerequisite for the participation in a commission campaign is the acceptance of these General Terms and Conditions. For this purpose, the Publisher must be over 18 years of age and truthfully complete the registration form on the website of Auerswald Marketing SL, Adlesa Network. After he has completed the form, sent it and confirmed that he has read, understood and accepted all parts of these General Terms and Conditions, a contract shall be concluded between Auerswald Marketing SL. and the Publisher.
After this registration/conclusion of the contract, the Publisher shall receive from Auerswald Marketing SL. as soon as possible a confirmation e-mail with his login data for his account to the e-mail address provided by him.
§ 4 Participation of the Publisher in the commission campaigns of the advertising customers/agencies
These General Terms and Conditions, the acceptance into the network of Auerswald Marketing SL. and the conclusion of the contract shall not entitle the Publisher to participate in commission programs. They merely regulate the (technical) processing of participation and the payment of any advertising cost subsidies paid by the advertising customer/agency. These General Terms and Conditions are thus the prerequisite for the publisher to apply for commission campaigns on the website of the Auerswald Marketing SL. Networks can apply.
After registration of his advertising media, support of the marketing by the Auerswald Marketing SL. Network and activation or inclusion of the advertising medium by Adlesa for commission campaigns at the conditions specified therein in each case. In this case, in addition to this contract, a participation contract shall be concluded between the publisher and Auerswald Marketing SL. under the conditions of the commission campaign as soon as the advertising customer/agency has accepted the publisher for participation in the respective campaign (condition precedent).
The advertising customer/agency shall decide on the participation of the Publisher in a commission campaign at its own discretion. Auerswald Marketing SL. shall have no influence on this decision. Even if the advertising customer/agency regularly decides very quickly or automatically on participation, there shall be no obligation on the part of the advertising customer/agency to respond to the publisher’s request within a certain period of time. It is also the publisher’s responsibility to check in his account whether the advertiser/agency has accepted or rejected him. The Publisher may revoke its request to participate in a particular commission campaign at any time online by clicking on the relevant link until it is accepted by the Advertiser/Agency.
Only when the advertising customer/agency has notified Auerswald Marketing SL. and the Publisher via the system that it accepts the Publisher’s participation with the respective advertising medium shall the Publisher be given the opportunity to integrate/display or generally use the advertising media of the advertising customer/agency offered within the scope of the campaign for advertising purposes.
§ 5 Obligations of the Publisher
The Publisher undertakes to keep his details in the account, in particular his e-mail address and bank details, up to date at all times. Auerswald Marketing SL. hereby expressly points out that legal declarations, e.g. changes to the terms of contract or notices of termination, may be sent by e-mail. Any disadvantages suffered by the Publisher due to a lack of updating shall be borne by the Publisher, in particular Auerswald Marketing SL. shall not be liable for any pecuniary disadvantages suffered due to incorrect bank data, and any recourse claims shall be excluded.
The Publisher shall be free to decide whether or not to place an advertising medium on the advertiser/agency and if so, where. However, he may not change the textual or graphic design of advertising media, unless explicitly stated. Use is only permitted on the advertising medium approved for the campaign in question.
Auerswald Marketing SL. may request the publisher to remove advertising media, in particular graphics and advertising texts, in justified cases. A justified case shall be deemed to exist in particular if Auerswald Marketing SL. has been requested by an advertising customer/agency to have such advertising media removed, has been requested to do so by a court or an authority or any other third party, or Auerswald Marketing SL. has become aware that it is suspected that an advertising medium or the type of integration violates the rights of third parties. In this case, the Publisher shall be obliged to remove the advertising media from its advertising medium without delay. If the removal does not take place immediately, the Publisher shall indemnify Auerswald Marketing SL. from any damage possibly arising from his delayed action and shall exclusively bear all costs possibly incurred by him and Auerswald Marketing SL.
The Publisher warrants that he is the authorized operator of the website specified by him. In particular, he guarantees that he is the owner of the domain or its lawful user. 5.5
The Publisher guarantees that the websites (including the domain) and their contents comply with the applicable legal provisions, but at least with the German legal provisions, e.g. that they contain sufficient provider identification and that they do not infringe any third-party rights (including, in particular, personal rights, copyrights, trademark rights). In particular, he guarantees that the content provided on the website does not violate the provisions of criminal law or the provisions for the protection of minors, in particular that no pornographic content, content harmful to minors or impairing the development of children and minors or included in the list of media harmful to minors, content glorifying war, national socialist content, content inciting people to violence or racial hatred or insulting content or instructions for criminal acts can be called up.
The Publisher is prohibited from manipulating the tracking system/reporting system or other systems used by Auerswald Marketing SL. or third party vicarious agents and partners by technical or other means in order to simulate, for example, a count or registration of transactions which do not actually take place in the economic sense and which may trigger the payment of a commission or remuneration. In particular, the publisher is prohibited from forcing transactions within the meaning of paragraph 7 or causing artificial traffic or manipulating its actual advertising medium reach technically or artificially.
The Publisher shall inform Auerswald Marketing SL. without delay if a claim is made against it by third parties due to the infringement of property rights, in particular due to domain designations or other use of names or symbols.
The Publisher shall inform Auerswald Marketing SL. without delay of any unauthorized or improper use of the advertising media of which it becomes aware or which it suspects.
§ 6 Duties of Auerswald Marketing SL.
Auerswald Marketing SL. shall be the technical processor of the commission campaigns and shall make advertising media available to the Publisher for placement on the registered advertising media (if available).
Furthermore, Auerswald Marketing SL. shall maintain an account for the Publisher which shall show the transactions initiated by the Publisher as well as commissions and remunerations received by Auerswald Marketing SL.
The websites of Auerswald Marketing SL. with the above-mentioned contents and the services, as well as additionally offered services of Auerswald Marketing SL. which are not included in these Terms and Conditions, shall be kept available by Auerswald Marketing SL. at 97% in relation to the year (24 hours a day). Not included in the availability are failures for which Auerswald Marketing SL. is not responsible, planned interruptions for maintenance work, hardware modifications, recovery measures, as well as interruptions due to circumstances beyond the control of Auerswald Marketing SL. (e.g. strike, lockout, war, power failure, force of nature, virus outbreak).
The Publisher shall only be entitled to payment of the commissions and remuneration by Auerswald Marketing SL. pursuant to Section 7 if a transaction triggering the payment was recorded by the reporting system, the transaction was not subsequently cancelled by the advertising customer/agency (cf. Section 7.5) and a corresponding payment by the advertising customer/agency has been received by Auerswald Marketing SL. The publisher hereby expressly accepts that Auerswald Marketing SL. shall not be liable for any payment defaults of its customers and shall indemnify Auerswald Marketing SL. against such claims. However, Auerswald Marketing SL. shall be free to provide compensation for individual or all affected publishers in the event of any default in payment.
Auerswald Marketing SL. undertakes to make the information relevant to the settlement of the commission campaign electronically available to the Publisher in accordance with the requirements of a prudent businessman and to update it regularly.
§ 7 Commissions and remuneration; term “transaction
The conditions under which the Publisher is entitled to payment of its commissions and/or remuneration are governed by the terms of these General Terms and Conditions and the terms of the individual participation conditions of the commission campaigns. In case of doubt, the additional conditions of participation shall take precedence over these General Terms and Conditions.
The following can be considered as a triggering moment for remuneration/commission: a) Unique-visitor. Unique-visitor means the number of unique visitors to a website and is the one-time voluntary clicking of the advertising medium on the publisher’s website by a visitor, as a result of which a linked website of one of the advertiser/agency arrives on the visitor’s browser. Uniqueness is ensured by excluding further accesses by the same Visitor within a maximum period of 24 hours on the same website (page impressions) and excluding the elements downloaded by the same Visitor during this period (hits). b) Lead. Lead means any action of a Visitor on the Advertiser’s/Agency’s Website to which the Visitor arrives via the link on the Publisher’s Website and registers or otherwise saves. The individual actions and their remuneration treatment are defined for each corresponding (commission) campaign. c) Sale. Sale means any action of a visitor on the website of the advertiser/agency to which the visitor arrives via the link on the Publisher Website and which results in the purchase of a product, the paid use of a service or another service.
In addition, the Advertiser/Agency may determine periods of time and/or means of advertising within which additional commissions and/or remuneration will be paid depending on various characteristics of the Publisher, or raise and lower the remuneration for individual Publishers. The assignment of a Publisher and its classification and/or treatment shall be assumed by the Advertiser/Agency at its own discretion if it accepts the Publisher as a Participant. The advertising customer/agency may change this status as well as remuneration and conditions at any time, of which the publisher shall be informed immediately by Auerswald Marketing SL. by e-mail. The Publisher shall have no claim to assignment to a specific remuneration group or to a specific remuneration. If he does not agree with the changes, he may terminate his participation in the relevant campaign at any time.
The Advertiser/Agency may change the amount of the advertising allowance and the triggering transactions (cf. Section 7.2) on a monthly basis for the future. Such changes shall be announced to the Publisher by Auerswald Marketing SL. on the website without delay. It shall be the Publisher’s responsibility to inform himself here of any changes. If he does not agree with the changes, he may terminate his participation in the campaign at any time.
There is no entitlement to commission and/or remuneration if the advertiser/agency has cancelled the transactions within the specified cancellation period (auto accept period) for the following reasons: a) a contract with the end customer has not been concluded, in particular in the event that the conclusion of the contract has been revoked within the legally stipulated periods, the end customer has exercised his legally stipulated right of return, there was a purchase on trial that did not lead to a business transaction, required consents or approvals from third parties are missing, a condition precedent has not occurred and/or a resolutory condition has occurred; b) in the case of the lead, a storage or registration did not come about; c) a case of Paragraph 7. 6 exists.
After the expiry of the cancellation period (auto accept period) such transactions can be cancelled and possibly paid out remunerations and commissions can be reclaimed, which a) have arisen due to artificial traffic. Artificial traffic means all invalid or involuntary transactions that may result in particular from automatic opening (so-called auto browser opening), so-called spider programs, machines, chats or discussion forums of a browser and thus are not based on an active action of a visitor to find a particular website. Inquiries in e-mails are not artificial traffic, unless the advertiser/agency determines otherwise in individual cases. b) are based on a manipulation of the tracking/reporting system of Auerswald Marketing SL, e.g. because click-generating programs or similar techniques were used; c) were forced by the publisher.
Any claim to commission and/or remuneration(s) shall lapse entirely if the Publisher violates its obligations under Section 5.
§ 8 Release from Liability by the Publisher; Contractual Penalty
In the following cases, the Publisher shall indemnify Auerswald Marketing SL. upon first request against all claims of third parties and shall bear the costs of any necessary legal defense: a) Claims which an advertising customer/agency asserts against Auerswald Marketing SL. because the Publisher has violated its obligations under Section 5 of this Agreement or the Publisher has made statements in connection with participation in a commission campaign of one of its advertising media that can be attributed to the advertising customer/agency and on which claims of visitors against the advertising customer/agency are based or justified or which are suitable for strengthening claims of the visitor against the advertising customer/agency. b) Claims by third parties that are based on inadmissible advertising medium properties and advertising medium content of the publisher advertising media as well as incorrect publisher information. c) Claims caused by incorrect or unauthorized use of the Auerswald Marketing SL. services if the Publisher’s advertising medium(s) is/are partly responsible for the occurrence of the damage, unless the Publisher can prove that it was unable to influence the occurrence of the damage. d) Claims based on any other infringement of rights by the Publisher (e.g. infringement of copyright or trademark rights).
The Publisher shall be obliged to pay Auerswald Marketing SL. a lump-sum contractual penalty of €5,000 if it maintains content on the advertising media attributable to it which violates Clause 5.5, sentence 2 (criminal or youth protection provisions). The assertion of further claims for damages by Auerswald Marketing SL. shall remain unaffected by this. The contractual penalty shall be offset against any claims for damages.
§ 9 Billing and payment
The commissions and/or remunerations stated in the account or in the respective (commission) campaign shall be gross, i.e. including any applicable value-added tax insofar as the Publisher has notified his value-added tax liability. The Publisher is responsible for compliance with the tax regulations affecting him.
Auerswald Marketing SL. shall settle monthly between the 5th – 20th for the previous month in each case the commissions and/or remuneration due and paid by the advertising customer/agency (cf. Section 6.5). Payment of the commissions and/or remuneration paid by the advertising customer/agency to and for the publisher shall be made as soon as the payment limit set by Auerswald Marketing SL. before the settlement period has been reached. In this context, the commissions and/or remunerations from all campaigns shall be added together.
Auerswald Marketing SL. shall be entitled to redefine the payout limit monthly for the following month. The payment limit shall be € 25 (twenty-five) gross as a rule.
If the total remuneration of the Publisher for a month is less than the payment limit, this amount shall be carried over to the next accounting period; credit balances or remuneration shall not expire.
The Publisher can view and print the credit note statement in his account after the billing period has been reached. Auerswald Marketing SL. shall issue a written credit note statement to the Publisher upon request if this is necessary for tax reasons.
Payment shall be made in euros by bank transfer to a German bank account. Auerswald Marketing SL. may withhold payment until the Publisher provides German bank details.
§ 10 Liability for material defects and defects of title
If the advertising medium or its implementation does not function and no remedy can be found through the support of Auerswald Marketing SL., the participation agreement in respect of this campaign shall end automatically, even if the failure is attributable to the Publisher. The Publisher shall be at liberty to switch to another commission campaign or to terminate the corresponding campaign beforehand in an orderly manner (Clause 13.1).
The Publisher shall be obliged to check the accounting by Auerswald Marketing SL. in his account and to give notice of obvious defects in the accounting without delay, at the latest within 14 days of updating. Otherwise, obvious defects shall be deemed to have been approved. If no objection is made to the issued credit note within 6 weeks of it being issued, it shall be deemed to have been accepted. Auerswald Marketing SL. shall store corresponding data records for 90 days and shall thereafter be released from the obligation to prove the correctness of the credit note.
Auerswald Marketing SL. shall expressly not adopt the contents of the websites of advertising customers/agencies and other publishers as its own. In view of the large number of advertising media provided, Auerswald Marketing SL. shall not be able to check these for their legality. This must be checked by the publisher himself.
§ 11 Limitation of liability
Auerswald Marketing SL. shall be liable within the framework of this agreement on the merits for damages suffered by the user a) which Auerswald Marketing SL. or its legal representatives, its executive employees or its vicarious agents have caused intentionally or through gross negligence, b) which are caused by the breach of an obligation by Auerswald Marketing SL, which is essential for achieving the purpose of the contract (cardinal obligations), c) if these claims result from the Product Liability Act, d) which are based on an organizational fault on the part of Auerswald Marketing SL. which is not due to slight negligence, e) if Auerswald Marketing SL. has expressly assumed a guarantee or has been fraudulently deceived, f) from injury to life, limb or health which are based on a breach of duty on the part of Auerswald Marketing SL. or one of its legal representatives or vicarious agents. The right to claim damages instead of performance shall remain unaffected. And shall be limited to a maximum of € 1,000 per case of damage.
Auerswald Marketing SL. shall be liable in full for damage caused intentionally or by gross negligence. Otherwise the claim for damages shall be limited to the foreseeable damage typical for the contract, max. 1,000 € per case.
The parties assume that the foreseeable, contract-typical damage is limited to a maximum of € 1,000 per case of damage.
Liability under the Product Liability Act shall remain unaffected.
In cases other than those mentioned above, the liability of Auerswald Marketing SL. – irrespective of the legal grounds – shall be excluded.
Claims for damages against Auerswald Marketing SL. shall become statute-barred 12 months after they have arisen, unless they are based on a tortious or intentional act.
Insofar as the liability of Auerswald Marketing SL. is excluded, this shall also apply to the personal liability of the employees, representatives and vicarious agents of Auerswald Marketing SL..
§ 12 Force majeure
Auerswald Marketing SL. shall not be liable for force majeure, in particular if due to events beyond the control of Auerswald Marketing SL. (e.g. strike, lockout, war, power failure, force of nature, virus outbreak) offered services, data, access is interrupted, made inaccessible or destroyed or data is damaged and/or destroyed.
§ 13 Term and termination
These General Terms and Conditions shall run for an indefinite period and may be terminated by either party at any time without notice and without giving reasons. The termination of a campaign does not affect the validity of the remaining campaigns or the GTC or this contract. By contrast, termination of the Publisher’s account or of these GTC shall simultaneously terminate all campaigns for the respective Publisher.
The termination of the GTC or the Account must be made in text form in accordance with § 126b BGB (e-mail or fax is sufficient).
In the event of termination, the Publisher must immediately remove from its Website all advertising media covered by the termination, regardless of who issued the termination.
In the event of termination, Auerswald Marketing SL. shall settle the accounts within the scope of the ordinary settlement.
§ 14 Data protection; Confidentiality
The data protection declaration of Auerswald Marketing SL. shall apply, which can be viewed on the website.
Something else shall apply if the disclosure is required by the performance of this contract or if Auerswald Marketing SL. is requested by an authority or a court to disclose data.
Auerswald Marketing SL. shall furthermore be entitled to pass on to an advertising customer/agency the data of a publisher who participates in a campaign of the advertising customer/agency if the advertising customer/agency has a considerable interest in this, which shall be the case in particular if a publisher infringes the property rights of the advertising customer/agency.
The contracting parties shall maintain strictest secrecy vis-à-vis third parties about all business and trade secrets of the other contracting party entrusted to them in connection with the conclusion and performance of this contract – even beyond the term of this contract. Likewise, they are prohibited from exploiting such business and trade secrets and/or having them exploited by third parties. Business and trade secrets shall be deemed to be all operational and organizational knowledge, processes and information which are only accessible to a limited group of persons and which, according to the will of the respective contracting party, should not become known to the general public (passwords, documentation (digital and printed), etc.).
The Publisher is hereby informed in accordance with Section 33 (1) of the Data Protection Act that Auerswald Marketing SL. stores its data in machine-readable form and processes it mechanically for contractual purposes. Auerswald Marketing SL. shall be entitled, insofar as it uses third parties for the provision of its services, to forward the data if this is necessary. In particular, Auerswald Marketing SL. shall be entitled to forward the gross advertising sales of the Publisher or an advertising medium at product level to Nielsen Media Research or similar organizations and associations for publication, and to process and prepare this data statistically for internal purposes and to publish it – anonymously.
§ 15 Prohibition of Assignment; Final Provisions
The Publisher may neither assign nor pledge its remuneration claims against Auerswald Marketing SL. unless an assignment constitutes a mutual commercial transaction.
The law of the Federal Republic of Germany shall apply. The exclusive place of jurisdiction shall be Xabia, Alicante.
Verbal subsidiary agreements do not exist. Changes to the terms of the contract must be made in writing. This shall also apply to the cancellation or amendment of this written form clause. Insofar as written form is referred to in these General Terms and Conditions, this shall mean text form within the meaning of Section 126b of the German Civil Code (BGB).
In the case of contractual relationships with foreign customers, German law shall apply unless otherwise expressly confirmed in writing by Auerswald Marketing SL.
If the Publisher’s / Advertiser’s registered office, place of residence or habitual abode is moved outside the area of application of German law after conclusion of the contract, the place of jurisdiction shall be Xabia, Alicante.
§ 16 Severability clause
Should individual provisions of the contract be or become invalid in whole or in part, the remainder of the contract shall remain valid. In the event of such ineffectiveness, the contracting parties shall agree on a legally effective substitute provision that comes as close as possible to the ineffective provision in economic terms. The same shall apply if a loophole should become apparent in the contract.