Affiliate Program / Premium Affiliate Management General Terms and Conditions
(Last updated: April 29, 2004 )
I. Object of the Affiliate Program/ Affiliate Management Program for Software Publishers
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 result-dependent Advertising Cost Compensation (also known in the element 5 Control Panel as "Commission") in exchange for publishing the advertisements. The Advertising Cost Compensation depends on the actual sales generated by end users referred via the electronic advertisement (the Affiliate's link).
Within the context of sales processed from this Program, element 5 acts (to the end user) as a service provider for Software Publisher and handles the sales process by proxy of Software Publisher in accordance with underlying share-it! Developer Agreement. element 5 receives an additional service fee from the participating Publishers for this Affiliate Management.
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 data and End User data through a secure online connection and change Software Publisher related settings, e.g. the commission of the Affiliate and activation and deactivation of the Affiliate.
"Affiliate's Control Panel" shall mean the password protected secure interface on element 5's Web servers that allows the Affiliate to (i) gain access to referred sales through a secure online connection and (ii) change Affiliate related settings, e.g. input or alteration of personal data, definition of default style within the context of the given technical limitations, and requests for new partnerships with Software Publishers or termination of existing partnerships.
1. Affiliate Participation
Participation of an individual Affiliate in the Program is dependent on activation by the Software Publisher. Once the Affiliate has registered, element 5 will send an e-mail to Software Publisher with a request to activate the Affiliate. Once the Affiliate is activated by the Software Publisher, the Affiliate is considered to be a participant in this program and is bound by these General Terms and Conditions.
2. 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
3. Control Panel
(1) After successfully completing the registration process for participation
in the Program, the Affiliate will be sent a user ID and a password to
access to the "Affiliate Control Panel". With the user ID and
password, the "Affiliate Control Panel" provides the Affiliate
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 the Affiliate has referred, as well as change other settings.
4. 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 link that is generated 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.
5. Order Processing
(1) element 5 shall be responsible for the entire order processing for
the referred end user according to the terms and conditions of the underlying
share-it! Developer Agreement between the Software Publisher and element
5. element 5 shall provide the order forms for the order processing on
its Web server; receive payments from the referred end users and forward
these payments, less the agreed Advertising Cost Compensation, the service
fees and relevant value added tax (VAT) to the Software Publisher; handle
refunds and returns according to the provisions of the underlying share-it!
Developer Agreement; and provide end user service relating to the administration
of the order. The Software Publisher shall provide technical end-user
6. Advertising Cost Compensation
(1) element 5 will pay Affiliate its advertising costs (including Vat,
if any, on presentation of a valid VAT invoice) if an end user arrives
via the link integrated in Affiliate's Web site at the order page hosted
by element 5 for the respective Software Publisher's Product under this
Agreement and end user uses the automatic ordering system that carries
out the registration and payment processing, so that the Affiliate's link
is deemed to be directly causative for the entry of the End User into
the agreement with the Software Publisher and End User's payment, proving
that all requirements are irrevocably met ("agreements arising in
a qualified manner"). Affiliate is only eligible to earn the Advertising
Cost Compensation on sales occurring during the term of this Agreement
and fees earned up to the date termination will remain payable only if
the related orders are not cancelled or returned.
1. Participation by the Software Publisher
(1) Software Publisher's participation in Affiliate Management indicates
that the Software Publisher agrees to these General Terms and Conditions,
and that the Software Publisher shall integrate the Affiliate Program
into the Web site using a corresponding link.
2. Integration of the link
(1) element 5 shall make a hyperlink available to the Software Publisher
that links to the appropriate registration form for the Affiliate Program.
The link can be accessed in the secure "Software Publisher Control
Panel" on element 5's Web site under "Affiliate Management".
3. element 5's Service Fee
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, shipping and handling, etc.) as well as the Advertising Cost Compensation defined in II. 6 (4) and in addition to VAT or sales tax (where applicable). element 5 will pay the Affiliate the Advertising Cost Compensation as defined in II. 6 . Further invoicing terms are obtained from the existing business relationship, defined in the respective share-it! Developer Agreement between Software Publisher and element 5.
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 and element 5 are authorized to revoke the license granted to the Affiliate at any time by written notice.
2. Changes to these provisions
element 5 RESERVES THE RIGHT TO MODIFY AND TO SUPPLEMENT THESE GENERAL TERMS AND CONDITIONS AT ANY TIME. THE CURRENT VERSION WILL BE MAINTAINED FOR VIEWING AS A HYPERLINK ON element 5's WEB SITE IN THE CONTROL PANEL. MOREOVER, element 5 WILL ANNOUNNOUNCE ANY CHANGES TO THESE TERMS VIA E-MAIL. WHITHIN 14 DAYS OF THE ANNOUNCEMENT OF CHANGED PARTICIPATION TERMS, AFFILIATE AND SOFTWARE PUBLISHER 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 "Receipt by Recipient", unless otherwise noted. For e-mail, the receipt of the message on the destination mail server is deemed to be the time of reception.
4. 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, technology used, and 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.
5. Guarantee by the Party to the Agreement for its Web site
(1) The Affiliate shall be responsible for the entire content of its
Web site. The Affiliate guarantees in particular that (i) It will integrate
advertising Material according to the provisions and instructions of the
Software Publisher into that Affiliate's Web site insofar as said Material
was transferred to the Affiliate; (ii) The material used the Affiliate's
Web site 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 the Affiliate's 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 e-mails).
6. 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.
7. Agreement period / Cancellation
The term of this Agreement will begin upon acceptance of Affiliate's Program application and will end when terminated by either party of this Agreement. This Agreement is entered into for an unlimited period of time. Either party may cancel this Agreement at any time, with or without supplying a reason, through written notification or by making suitable settings in the respective Control Panel.
8. 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 Web site contents expire.
9. Final provisions
(1) Force majeure