Terms and Conditions Affiliate Program

of Kurt Woischytzky, Calle Princesa 31, Planta 2, Puerta 2, 28008 Madrid, Spain (hereinafter referred to as “Provider”)

§ 1 Scope of application

(1)  These Terms and Conditions Affiliate Program (hereinafter referred to as “GTC”) apply to the contractual relationship between the provider and the contractual partners (hereinafter referred to as “partners”) of the affiliate program of kurt creative (hereinafter referred to as “affiliate program”).

(2)  The Provider shall provide its services exclusively on the basis of these GTC. The partner’s own terms and conditions require the express written consent of the provider and therefore do not apply even if the provider does not expressly object to their validity.

(3)  The GTC are only directed at entrepreneurs. Consumers are excluded from participation in the partner program.

§ 2 Conclusion of contract

(1)  A contract between the provider and the partner for the placement of advertising material is concluded exclusively via the online application procedure at www.kurtcreative.com. By registering, the partner submits an offer to participate in the partner program and accepts the GTC. A contract is only concluded when the provider expressly declares acceptance of the offer or releases specific advertising material for the partner.

(2)  There is no entitlement to participate in the partner program and to conclude a contract with the provider. The provider can reject individual partners at any time without giving reasons.

§ 3  Object of the contract

(1)  The object of this contract is participation in the partner program, which is intended to increase sales of the provider’s products via the provider’s website. Participation in the partner program is free of charge for the partner. For this purpose, the Provider shall provide the Partner with a selection of advertising material via the Partner Program at its own discretion. The Provider may offer various programs at the same time (hereinafter referred to as “campaigns”).

(2)  The partner places the advertising material approved for it on its own responsibility on its websites registered and approved in the partner program (hereinafter “partner website”). The partner is free to decide whether and for how long to place the advertising material on the partner website. He is entitled to remove the advertising material at any time.

(3)  For the promotion and successful referral of transactions (e.g. orders), the partner receives a referral commission that depends on the scope and actual value of the service. The details can be found in the description of the respective campaign in the partner program and §7 of these GTC.

(4)  The partner program does not establish any other contractual relationship between the parties beyond this contract.

§ 4 Functionality of the partner program

(1)  The partner must register for the partner program with the data requested during registration. After successful registration, a customer account is set up for the partner, which the partner can use to manage their partner activities.

(2)  For approved campaigns, the provider provides the partner with a specific affiliate link and other advertising material that can be used to identify users of the partner websites when they click on the link. The partner must integrate this link into its website to enable tracking.

(3)  Via the customer account, the partner also receives access to certain statistical data defined in detail by the provider regarding the advertising media used by the partner.

§ 5 Obligations of the provider

(1)  The Provider shall provide the Partner with a selection of advertising media (e.g. advertising banners, text links, videos and images) (hereinafter referred to as “Advertising Media”) for individual campaigns at its own discretion.

(2)  The Provider shall ensure appropriate tracking of visitors who reach the Partner’s website via the advertising media integrated into the Partner’s website (hereinafter referred to as “Partner Leads”). The provider also ensures that any orders placed by partner leads (hereinafter referred to as “sales”) are assigned to the partner.

(3)  The provider operates its website and the services offered on it, such as the provision of product data, at its own discretion within the scope of the technical possibilities available to it. In this context, the provider is not responsible for the error-free and/or uninterrupted availability of the website. The quality and correctness of the products and advertising material offered on the provider’s website is at the provider’s sole discretion.

(4)  In addition, the provider undertakes to pay the remuneration in accordance with §7 under the conditions specified therein.

§ 6 Rights and obligations of the partner

(1)  The partner may only integrate the advertising material into the partner websites. The Partner is expressly prohibited from making any changes to the advertising material. The advertising material may only be used for the purposes provided for in this contract on the partner websites.

(2)  The Partner is responsible for the content and ongoing operation of the Partner Website and shall not place any content there during the term of this Agreement that violates applicable law, common decency or the rights of third parties and/or is likely to damage the reputation of the Provider. The provider is entitled, but not obliged, to check the partner websites. In particular, the Partner is prohibited from disseminating content that represent, relate to or include

• Racism,
• glorification of violence and extremism of any kind,
• incitement and incitement to criminal offenses and/or violations of the law, threats against life, limb or property,
• incitement against persons or companies,
• defamatory statements, libel, slander and defamation of users and third parties as well as breaches of fair trading law,
• copyright infringing content or other infringements of intellectual property rights or
• sexual harassment of users and third parties 

Such content may not be integrated on the partner website itself, nor may the partner website link to corresponding content on other websites.

(3)  Any form of abuse, i.e. the generation of leads and/or sales via unfair methods or unauthorized means that violate applicable law and/or these GTC, is prohibited. In particular, the Partner is prohibited from attempting to generate leads and/or sales itself or through third parties by means of one or more of the following practices or to ensure that sales are allocated to the Partner:

• Faking leads or sales that have not actually taken place, e.g. through the unauthorized provision of third-party data or the provision of false or non-existent data when ordering services on the provider’s website,
• using forms of advertising that enable tracking but do not display the advertising material, do not display it perceptibly or do not display it in the specified form and/or size,
• Cookie dropping: Cookies may not be set when the website is visited, but only if the user of the partner website has previously clicked on the advertising material voluntarily and consciously,
• other forms of affiliate fraud (in particular cookie spamming, forced clicks, affiliate hopping) and the use of layers, add-ons, iFrames and post-view technology in order to increase leads,
• using terms that are legally protected for the Provider or third parties, in particular trademarks, for example in search engines, in advertisements or in the promotion of the Partner Website without the express prior written consent of the Provider. In particular, the Partner is prohibited from maintaining websites on the Internet that could lead to a risk of confusion with the Provider or products offered by the Provider. In particular, the Partner may not copy the website, landing pages or other appearances of the Provider or adopt graphics, texts or other content from them. The Partner must avoid the impression that the Partner Website is a project of the Provider or that its operator is economically connected to the Provider in a way that goes beyond the Partner Program and this Agreement. Any use by the Partner of materials or content from the Provider’s website or its logos or trademarks requires the prior written approval of the Provider.

(4)  The Partner undertakes to operate the Partner Website in accordance with applicable law and in particular to maintain a proper legal notice.

(5)  E-mail advertising that contains advertising material or promotes the provider in any other way may only be sent if express consent to advertising by e-mail has been given for all addressees and verification of the e-mail address has been carried out and documented using a double opt-in procedure.

(6)  The Partner shall immediately remove advertising material from the Partner Website if requested to do so by the Provider. This also applies in particular to websites on which the provider does not or no longer wishes to include the advertising material for whatever reason.

(7)  The Partner shall refrain from making any reference to the Provider and its products when advertising the Partner Website. In particular, the Partner shall not place any context-based advertisements (especially Google AdWords or AdSense) that contain the name, company keywords or brands of the Provider or are delivered based on the use of corresponding keywords. The same applies to the names of the provider’s products.

(8)  The Partner undertakes to refrain from electronic attacks of any kind on the tracking system and/or websites of the Provider. Electronic attacks include, in particular, attempts to overcome, circumvent or otherwise disable the security mechanisms of the tracking system, the use of computer programs to automatically read out data, the use and/or distribution of viruses, worms, Trojans, brute force attacks, spam or the use of other links, programs or procedures that could damage the tracking system, the partner program or individual participants in the partner program.

§ 7  Remuneration

(1)  The contractual partner receives performance-based remuneration from the provider for sales made on the provider’s website by partner leads.

(2)  Entitlement to payment of the remuneration shall only arise under the following conditions:

• the partner’s advertising activity has resulted in a sale by an end customer to the provider,
• the sale has been logged (“tracked”) by the provider,
• the sale has been approved and confirmed by the provider and
• there is no abuse within the meaning of §6, para. 3 of these GTC.

(3)  A sale is an order generated by an end customer on the provider’s website that has been completed and paid for by the end customer. Reversals – for whatever reason – are not considered a sale if the end customer has not paid or if payments made by the end customer are refunded. Reversals that occur more than 8 weeks after payment by the end customer shall not be taken into account.

(4)  Orders that come about as a result of partner leads generated via partner websites or other advertising spaces where the provider has requested the partner to remove the advertising material are not subject to remuneration. This applies from the time of the request.

(5)  The tracking system used by the provider is decisive for the question of whether a sale is based on an affiliate lead. Unless otherwise specified in the partner program or in individual campaigns, the “last cookie wins” principle applies with a cookie runtime of 30 days. The provider shall not be liable for payment if and to the extent that the tracking system fails or any other malfunction is caused which results in leads or sales not being able to be allocated to individual partners or only with considerable effort.

(6)  The amount of remuneration is based on the commission specified in the respective campaign at the time of the sale. Unless otherwise specified, a commission of 10% of the net price of the respective sale applies.

(7)  All commissions quoted are net fees and are paid exclusive of VAT.

§ 8 Billing

(1)  The Provider shall provide the Partner with a statement of the remuneration claims in its customer account. The Partner shall check the statement without delay. If the Partner has any objections to a statement, these must be submitted to the Provider in writing within four weeks. Once this period has expired, the statement shall be deemed to be correct.

(2)  Remuneration claims are due for payment two months after the end of the month in which payment is received from the end customer for the sale in question. Remuneration claims are only due if a minimum payment amount of USD 25 has been reached and the Partner has sent the Provider a proper invoice with a request for payment in good time. The Partner has the right to demand lower amounts against reimbursement of a flat processing fee of USD 5. The fee shall be deducted from the amount to be paid out.

(3)  Payment shall be made by bank transfer with debt-discharging effect to the bank details provided by the partner. Any bank charges (e.g. for bank details abroad) shall be borne by the partner.

§ 9 Liability

(1)  Unlimited liability: The provider is liable without limitation for intent and gross negligence as well as in accordance with the Product Liability Act. The provider shall be liable for slight negligence in the event of injury to life, limb and health of persons.

(2)  Otherwise, the following limited liability shall apply: In the event of slight negligence, the Provider shall only be liable in the event of a breach of a material contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the Partner may regularly rely (cardinal obligation). Liability for slight negligence is limited to the amount of damages foreseeable at the time of conclusion of the contract, the occurrence of which must typically be expected.

(3)  There is no further liability on the part of the provider.

(4)  The above limitation of liability also applies to the personal liability of the provider’s employees, representatives and bodies.

§ 10 Indemnification claim / compensation

(1)  The Partner shall indemnify the Provider and its employees or agents against all claims by third parties arising from alleged or actual infringements of rights and/or infringements of third-party rights due to actions taken by the Partner in connection with the Partner Program. In addition, the Partner undertakes to reimburse all costs incurred by the Provider as a result of such claims by third parties. Reimbursable costs also include the costs of an appropriate legal defense.

(2)  The provider reserves the right to assert claims for damages against the partner in the event of misuse in accordance with §6, para. 3.

§ 11  Rights of use

(1)  The advertising material and other content of the Provider are protected by copyright and/or other industrial property rights. The provider grants the partner a simple and non-exclusive right to use the advertising material for the duration and purpose of this contract.

(2)  Any modification, duplication, distribution or public reproduction of the advertising material or a significant part of it in terms of type and scope requires the prior written consent of the provider, insofar as it goes beyond the scope granted in paragraph 1 above.

§ 12  Confidentiality

(1)  The Partner undertakes to keep secret for an unlimited period of time (even beyond the end of this contract) all knowledge of the Provider’s trade and business secrets or other confidential information obtained within the scope of the contractual relationship, to use it only for the purposes of the contract and, in particular, not to pass it on to third parties or otherwise exploit it. If information is designated as confidential by the provider, the irrebuttable presumption that it is a trade or business secret shall apply.

(2)  The content of this contract and the associated documents are to be treated confidentially (as trade and business secrets) by the partner.

(3)  The Partner shall oblige its employees and other persons whose services it uses to fulfill its contractual obligations to maintain confidentiality in a manner corresponding to paragraphs 1 and 2 above.

§ 13  Contract term and termination of the contract, blocking

(1)  The contract runs for an indefinite period and can be terminated by either party at any time without notice and without giving reasons.

(2)  In addition and beyond this, the right of the parties to terminate the contractual relationship by extraordinary termination for good cause remains unaffected. For the provider, good cause entitling to extraordinary termination exists in particular in the following cases:

• serious breach of the Partner’s obligations under this Agreement, in particular a breach of §6, para. 2, §6, para. 4 and/or §6, para. 8,
• breach of obligations under this contract and failure to remedy or cease the breach despite a corresponding request by the Provider,
• a case of abuse within the meaning of §6, para. 3.

(3)  Notice of termination may be given by e-mail. A termination declared by the Provider by e-mail shall be deemed to have been received on the day on which it is sent to the e-mail address specified by the Partner in the customer account. The Provider may also declare termination by restricting access to the customer account. The Partner may also terminate the contract by deleting the customer account. The contract is terminated upon receipt of the notice of termination.

(4)  After termination of the contract, the partner is obliged to remove all advertising material and other links and content of the provider from the partner website without delay. This also applies to websites or other advertising media in which the Partner has integrated the advertising material or links without being authorized to do so.

(5)  Leads and/or sales generated after termination of the contract do not result in an obligation to pay remuneration.

(6)  Instead of terminating the contract, the provider may also block the customer account in the cases set out in Section 13 (2). This also applies if there is only a reasonable suspicion of misuse in accordance with §6, para. 3. The Provider shall inform the Partner of the reason for the block and lift the block again when the reasons that led to the block have been clarified and, if necessary, eliminated. Leads generated during the period of blocking shall not result in an obligation to pay remuneration.

§ 14  Final clauses

(1)  Should the contract contain invalid provisions, this shall not affect the validity of the remainder of the contract.

(2)  The provider reserves the right to amend these GTC at any time. The Partner shall be notified of any changes by e-mail. If the Partner does not agree with the changes, it is entitled to inform the Provider of this within four weeks of receipt of the notification of change. In this case, the Provider has a special right of termination. If such notification is not made within this period, the changes shall be deemed to have been accepted and shall enter into force upon expiry of the period.

(3)  If the Partner is an entrepreneur, the place of jurisdiction is the registered office of the Provider; however, the Provider is also entitled to sue the Partner at its place of residence or business.