Terms and Conditions

 

GENERAL CONDITIONS OF USE

AFFILINET DEVELOPER PORTAL

  1. SCOPE OF APPLICATION
    1. The following general conditions of business apply to the service known as “Developer Portal” (including all pertinent country and sub domains and all additional services to which these general conditions of business apply – hereafter referred to as “Service”) as provided by affilinet GmbH, Joseph-Wild-Str. 20, D81829 Munich (“affilinet” or “Provider”). The Service enables members (“User”; affilinet and User hereafter collectively referred to as “Parties”) to discuss topics with other members both those emanating from the member as well as those specified by the Provider. The Service enables also the members to use some webservices from affilinet (“Webservices”). The User is given the facility for uploading the User’s own texts (hereafter referred to as “Contents”) on the Provider’s server and to make these accessible to other Users for viewing on the internet.
    2. The Provider shall be entitled to amend or add to these general conditions of business on reasonable notice. Notice will be given solely on the internet on the Service website. The amended or additional conditions will be deemed effective unless the User objects within a period of four weeks following publication on the internet. If the User objects within the stated period, the Provider is entitled to terminate the contract at the time when the amended or additional conditions are due to take effect. Any general conditions of business which deviate from, contradict or are intended to supplement these general conditions of business shall have no contractual effect notwithstanding the fact that they come to the Provider’s notice unless the Provider has expressly agreed to their application in writing.
  2. SCOPE OF USE
    1. The Service is available to persons who are at least 18 years of age.
  3. SUBJECT MATTER AND FORMATION OF THE CONTRACT
    1. The Service enables the User to discuss the User’s own topics and those specified by the Provider via the internet.
    2. The Service enables also the User to have access to sample affiliate publisher accounts. With these sample publisher accounts and the herein available sample data the User is able to develop software based applications (“Application”) for the use of affilinet’s Webservices. affilinet will allow the User to use this sample data and to run the Webservices by the developed software.
    3. The contract for the use of the Service subject to these conditions shall come into existence when a User name for the Service is selected.
    4. The User acknowledges that it is necessary to prevent the Service from any instability caused from a significant number of user requests. Therefore the User gives his consent to track all requests (IP address and time stamp) to the webservice to ensure the technical stability of the service. The User is entitled to withdraw his consent at any time. Where consent is withdrawn the User’s access to the Service will be blocked. The User is deemed to have given consent upon acceptance of these conditions of use when signing on. The storage and processing of the IP address will be used solely to prevent misuse and the investigation into offences.
  4. GENERAL RIGHTS AND OBLIGATIONS OF THE USER
    1. The User is required to provide accurate details. The User must report any changes to his details.
    2. The User is entitled to make use of the Service for the duration of the contract in accordance with its terms.
    3. The User agrees to observe and comply with the current laws of the Federal Republic of Germany.
    4. Material may only be uploaded, stored, kept available and/or transferred or disseminated for which the User owns the necessary rights (in particular copyright and other intellectual property rights) and which do not infringe the rights of further parties. In particular the User must be the owner of any necessary copyright or other intellectual property rights which permit the use by third parties. The production and dissemination of unauthorised copies or copies which exceed the use permitted by the relevant copyright owner are prohibited. The User is required to obtain information about any applicable copyright before uploading, storing, keeping available and/or transferring or disseminating contents and to desist from any such action in cases of doubt.
    5. All Users of the Service carry full responsibility for their actions in using the Service. This applies in particular to the uploading, storing on a Provider’s server, keeping available and/or transferring or disseminating contents.
    6. The User must not misuse the Service in particular not do anything intentionally or negligently which would assist in the unlawful transfer or dissemination of contents via the Service.
    7. Any actions by the User which are aimed at making the web pages of the Service or other affilinet services inoperable or more difficult to use are prohibited and may result in civil and criminal proceedings. Actions are in particular prohibited which may have an effect on the physical and logical structure of one or more of the services provided by affilinet.
    8. The User is required to protect his access data (User name and passwords) against unauthorised use by third parties and to keep the User’s password confidential. The User must inform the Provider immediately if he has grounds to believe that his access data are being misused. The User’s attention is drawn to Section 6 (Indemnity) and Clause 7.1.
    9. The User is required to observe all applicable laws aimed at the protection of children. The uploading, storage, keeping available and/or transferring or disseminating of unlawful information, data or contents is in particular prohibited including any contents which are of an offensive, violent, racist, discriminatory or pornographic nature. Contents are in particular prohibited which
      1. contain unlawful, pornographic or obscene material;
      2. idolize war, terror and other acts of violence;
      3. tend to place children or adolescents in moral danger;
      4. depict persons who are dying or subject to serious physical or spiritual suffering in a manner which offends human dignity and/or represent actual occurrences unless there is an overwhelming justification in the presentation of the material;
      5. incite hatred against certain parts of the population or against a national, racial, religious or ethnic group or which encourage acts of violence towards any such persons or which offend against human dignity or which attack certain parts of the population or any of the aforementioned communities or which degrade or insult them;
      6. depict atrocities or other unhuman acts of violence against persons or animals of any kind, which idolize or attempt to portray as harmless any such violent activities or which represent anything of a brutal or inhuman nature which offends human dignity or
      7. are likely to offend, threaten or discriminate against other persons;
      8. subject another person to harassment or contribute to any such harassment;
      9. are aimed at the sexual or violent abuse of persons;
      10. contain images of naked persons, violence or other offensive images or contain a link to any adult website;
      11. encourage minors to reveal personal details;
      12. are aimed at the illegal or unauthorised copying of material which is protected by copyright eg. by making available illegal computer programmes or links to illegal computer programmes, information for overcoming devices which protect unauthorised copying, the illegal copying of music or links which facilitate this;
      13. involve the transmission of junk mail, chain letters or unsolicited mailshots, spimming or spamming.
    10. The User is also required to refrain from publishing content which
      1. contains pages or images (which are not linked with other accessible pages) which are restricted, only accessible using a password or which are hidden;
      2. contains commercial activities and/or advertisements eg. prizes, lotteries, items for exchange or snowball systems unless prior written agreement is obtained from the Provider;
      3. involves sales or provide other details concerning the User;
      4. involves any automated use of the system e.g. the sending of comments and news items;
      5. includes advertising on the User’s personal profile page or the acceptance of remuneration for a service to be provided by the User through the use of the Service and its functions such as the making available of advertising space on the User’s personal profile page, the provision and publication of blogs or other information for commercial purposes, providing contact to a commercial profile or the transmission of private information for commercial purposes.
    11. In addition the use of offensive material, suggestive descriptions and other representations are prohibited which may be of an illegal nature where this cannot be conclusively determined.
  5. LICENCE
    1. The User will remain the owner of all rights to the content after it has been made available or published using the Service. In connection with the uploading of the content the User grants the Provider a non-exclusive, worldwide, gratuitous, unlimited, irrevocable and absolute licence (which may be assigned and including the right to grant further licences) for copying, distributing, adapting, displaying, publishing the uploaded content in connection with the use of the Service and the Provider’s business, in particular for the promotion and redistribution of the Service and content derived from it via any medium and in any chosen format.
    2. In addition the User grants all other Users of the Service a non-exclusive licence to access the uploaded content and to make use of it within the terms of the Service, to make it available to others to produce new contents derived from it, to adapt it to publish it within the scope of the Service and to use the content in the proper manner within the scope of this contract provided that the material will be used solely within the scope of the Service.
    3. Use of the contents beyond the scope of the Service is not permitted.
    4. affilinet hereby grants to the User, subject to the terms and conditions of this agreement, a non-exclusive, non-transferable licence to utilise the developed Applications to access, receive and deliver to affilinet’s Publisher the affilinet Webservices.
      1. The licence shall not be deemed to extend to any programs or materials of affilinet other than the Webservices unless specifically agreed in writing by affilinet.
      2. The licence shall also not be deemed as right to utilise the affilinet’s trademarks or other logo usage rights unless specifically agreed in writing by affilinet.
      3. affilinet and the User shall both retain all intellectual property rights in their intellectual property. Except as licensed herein this agreement does not transfer any intellectual property rights between the Parties. The User further acknowledges and agrees that, to the extent that any additions, deletions or alterations made by affilinet to the Webservices have resulted or will result in the subsistence of any new intellectual property, all such rights shall vest in affilinet.
  6. SPECIFIC OBLIGATIONS OF THE USER
    If the User is using the above mentioned license regarding the usage of the Webservices the following specific obligations of the User shall apply:
    1. In respect to the publisher who will use the Applications the User shall be solely responsible for the Applications.
    2. The User shall not make any promises or representations or give any warranties, guarantees or indemnities in respect of the Webservices either on its own behalf or on behalf of affilinet.
    3. The User shall use reasonable endeavours to ensure that the Applications developed and made available to affilinet’s publisher are of high quality and properly performs its intended and stated functions and that any services affilinet provides are performed in a competent and professional manner in accordance with software industry best standards.
    4. The User shall ensure that the Webservices, the Service and all other affilinet’s services shall not be amended, modified, enhanced, replicated or in any way altered.
    5. The User undertakes not to reverse engineer, disassemble, decompile or translate the Werbservices or any other affilinet’s service or any part thereof without the prior permission in writing from affilinet.
    6. The User shall hold affilinet’s Confidential Information in confidence and shall not disclose such Confidential Information to Third Parties nor use affilinet’s Confidential Information for any purpose other than as required to perform under this Agreement. Such restrictions shall not apply to Confidential Information which (i) is already known by the User, (ii) becomes publicly known through no act or fault of the User, (iii) is received by the User from a Third Party without a restriction on disclosure or use, or (iv) is independently developed by the User without reference to the Confidential Information. Where Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, the User subject to such requirement shall immediately notify affilinet upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information. The Users’ respective obligations to maintain the confidentiality of information disclosed hereunder shall survive the termination of this Agreement.

      “Confidential Information” is defined as any information of affilinet or of the publisher, which (i) if disclosed in a tangible form is marked using a legend such as “Confidential” or “Proprietary” or if not so marked, should be reasonably understood by the User from the context of disclosure or from the information itself, to be confidential, or (ii) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving Party from the context of disclosure or from the information itself to be confidential. The publisher information which gets accessible for the User through the Application, affilinet’s security and technology shall be deemed Confidential Information regardless of whether marked “Confidential”.
  7. INDEMNITY
    The User indemnifies the Provider against all claims by third parties resulting from a failure to comply with the duties specified in Sections 4 and 5 and/or any injurious actions on the part of the User and will compensate the Provider for all additional losses including the costs of taking or defending any action as may be necessary. This indemnity also applies in the event of any misuse of the access data of the User by third parties where the User is responsible for such misuse.
  8. RIGHTS AND OBLIGATIONS OF THE PROVIDER
    1. The User has no entitlement to be permitted to use the Service. The Provider is free to decide to refuse provision of the Service without giving reasons.
    2. The Provider is entitled at all times to revoke any permission to use the Service without giving grounds. In the event of a breach of these conditions of use or where there are grounds for believing that the User is in breach, in particular breach of Sections 4 and 5, the Provider is entitled at the Provider’s discretion:
      1. to delete immediately any contents which have been uploaded stored kept available and/or transferred or disseminated by the User and any contents addressed to the User;
      2. to exclude the User wholly or in part either temporarily or permanently from the use of the Service or any other affilinet service; or
      3. to terminate the use of the Service
      Before excluding the User or terminating the use affilinet will send the User a warning unless the breach is of such a grave nature that affilinet cannot reasonably be expected to continue to provide the Service.
    3. affilinet is entitled to alter, to amend and to modify the Webservices and all related data on reasonable notice. Notice will be given solely on the internet on the Service website.
  9. TERMINATION
    1. Both the Provider and the User are entitled to terminate the use of the Service at any time without giving reasons.
    2. If the User is using the above mentioned license regarding the usage of the Webservices and the developing of Applications the following specific obligations of the User shall apply for the granted license to the User:
      1. The agreement shall be effective from the date of registration.
      2. The contract period is indefinite.
      3. Either party may terminate the agreement at any time by providing one (1) months advance written notice to the other party.
      4. Except as otherwise provided hereunder, this Agreement may be terminated by either Party at any time in the event of a material breach by the other Party that remains uncured after ten (10) calendar days prior written notice thereof.
  10. WARRANTY/LIABILITY
    1. The Provider is not responsible for the contents of any material used in connection with the Service which has not been produced by the Provider. The Provider has no influence on linked pages and therefore undertakes no liability for links for which the Service directs Users whether directly or indirectly. This also applies to links which are produced by Users.
    2. The Provider gives no warranty that the Service will at all times be accessible, available, free of faults and punctual. Technical difficulties outside the Provider’s control may lead to delays in access and transmission or non-availability. The Provider therefore provides no warranty that contents will be available in their entirety at any particular time where there are faults or interruptions which are beyond the Provider’s control.
    3. The Provider points out that it is not possible to produce computer programmes such that they meet all requirements free of any faults. The Provider gives no warranty that the Service and the computer programmes used in connection with it will satisfy the User’s special needs. The programmes were not developed and not intended to be used in dangerous or protected environments such as nuclear power stations, aircraft navigation and communication systems, air space control, weapons and defence systems, life support systems or other such circumstances in which the failure of software results directly in death, personal injury or serious damage to property or the environment. The Provider expressly declines to accept any responsibility for this type of use.
    4. The Provider shall only be liable in cases where the Provider or its servants and/or legally recognised representatives are guilty of intentional or grossly negligent conduct. In addition the Provider will be liable for substantial breaches of the contract caused by the negligence of the Provider, its servants and/or legally recognized representatives.
    5. In cases of negligence the Provider’s liability in the event of damage to property is limited to normal foreseeable damage.
    6. Liability pursuant to Section 44a of the Telecommunications Law remains unaffected.
    7. The Provider undertakes no liability for any losses incurred by the User through the keeping available, transmission, dissemination, receipt, storage or reproduction of information, data and contents unless the cause of the loss is within the Provider’s control and the Provider is at fault.
    8. Content sent to the User or kept available by the User and/or transmitted or disseminated by the User is to be taken as content with which the Provider has no connection and which does not represent the Provider’s opinion.
    9. The Provider cannot be held responsible for loss or damage to data which arises as a result of the use or the unsuitability for use of a computer programme or the accessing of the website whether directly or indirectly including (but not limited to) loss of business, loss of earnings or loss of profits. It is therefore the User’s responsibility to produce back-up copies on a regular basis of contents which have been uploaded or stored.
    10. The above provisions do not affect any strict liability of the Provider which is imposed by statute in particular liability pursuant to the Product Liability legislation or any statutory warranty. The same applies to the Provider’s liability for culpable loss of life, injury or damage to health suffered by the User.
    11. Clauses 9.1 to 9.10 comprise the full extent of any contractual or statutory claims which may be made as a result of the use of the Service.
  11. DATA PROTECTION
    1. The Provider will only record, process and use the personal details of the User given when signing on where this is necessary for setting up and managing the provision of the Service or where the Provider is legally required to do so unless the User gives his consent for any other use. The Provider points out that the User’s personal details will be processed electronically.
    2. The Provider is entitled where necessary to record and use details of participants and users for the purpose of detecting, controlling or dealing with interruptions or faults to telecommunications equipment.
    3. The Provider will give information to prosecuting authorities and courts and other statutorily authorised persons relating to message, data or contents and personal details which have been stored, kept available, received, transmitted or disseminated only in accordance with statutory provisions, in particular those relating to the prosecution of offences.
    Upon termination of the Service all stored data will be deleted with effect from the termination unless there is a contractual or statutory requirement to retain it.
  12. MISCELLANEOUS
    1. Any invalidity of any particular provision of these Conditions of Use will not affect the validity of the remaining provisions. Invalid provisions are to be deemed replaced by provisions which come closest to achieving the economic purpose of the invalid provision. The same applies in the event of any matters which have not been provided for.
    2. The agreement is subject to German law. The United Nations Convention on Contracts for the International Sale of Goods shall have no application.
    3. The place of jurisdiction is Munich so far as permitted by law.

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