Potsdamer Str. 91
Handelsregister: Amtsgericht Köln, HRB: 86988
VAT: Umsatzsteuer-Identifikationsnummer gemäß § 27 a Umsatzsteuergesetz: DE815616591
Content related responsibility (§55 Abs. 2 RStV): Matthias Lesch
Potsdamer Str. 91
Copyright © tab GmbH, Berlin
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This Tab Affiliate Network Advertiser Agreement ("Advertiser Agreement"), shall govern the relationship between Tab Affiliate Network ("Tab Affiliate Network" or "we") and the Advertiser ("Advertiser"), whereby Advertiser may obtain access to the Affiliate Network ("Tab Affiliate Network") of registered third party affiliates ("Affiliates") and publishers ("Publishers"), and related technology and software ("Tab Affiliate Network Ad Server"), to market customized advertisements and links provided by Advertiser and/or Tab Affiliate Network ("Ads," as further defined below). The Tab Affiliate Network, as well as the services provided by Tab Affiliate Network in connection therewith ("Services"), are further described in the Insertion Order ("IO") attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the "Agreement"). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to "Advertiser" shall refer jointly to Advertiser as well as the applicable underlying client.
Advertiser agrees to accept and pay for, and Tab Affiliate Network agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Tab Affiliate Network shall undertake marketing campaigns with Advertiser (each an "Ad Campaign") whereby Tab Affiliate Network will distribute Advertiser's proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, "Advertiser Ads") and/or, where applicable, Tab Affiliate Network Ads (as defined below) through the Tab Affiliate Network either:
on Publisher websites via the Tab Affiliate Network Ad Server for impressions-based Ad Campaigns ("CPM"); or
by Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Tab Affiliate Network commissions depending on the number of valid clicks, impressions, sales/actions ("CPA"), applications and leads ("Leads"), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, "Actions"). The applicable Actions, the fees due to Tab Affiliate Network for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Tab Affiliate Network shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.
Upon the execution of the Agreement, Advertiser must register on the Tab Affiliate Network website and create a unique, password-protected account ("Account"). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser's Account, whether authorized by Advertiser or not. Advertiser must immediately notify Tab Affiliate Network of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Tab Affiliate Network will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Tab Affiliate Network shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Tab Affiliate Network prepares on Advertiser's behalf (such portions hereinafter referred to as, the "Tab Affiliate Network Ads" and together with the Advertiser Ads, the "Ads"). The parties understand and agree that Tab Affiliate Network is the sole owner of any and all intellectual property rights associated with the Tab Affiliate Network Ads, other than Advertiser's trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Tab Affiliate Network Ads. Under no circumstances shall Tab Affiliate Network be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). Advertiser shall submit all Advertiser Ads to Tab Affiliate Network for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Tab Affiliate Network's prior express written consent, after the applicable Ad has been approved by Tab Affiliate Network. Notwithstanding the foregoing, Tab Affiliate Network shall have sole discretion with respect to the creation of the "subject" and "from" lines used in its e-mailing of any Ads. Tab Affiliate Network reserves the right, in its sole discretion and without liability, to: change any of its Ad Guidelines at any time; and to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Tab Affiliate Network. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Tab Affiliate Network deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads ("Advertiser Products"), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Tab Affiliate Network or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Tab Affiliate Network shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Tab Affiliate Network's receipt of Advertiser's cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Tab Affiliate Network and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where "Run of Affiliate Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Tab Affiliate Network and/or its Affiliates and Publishers may determine, in their respective sole discretion.
Unless otherwise stated in writing by Tab Affiliate Network, each Ad used by Tab Affiliate Network in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Tab Affiliate Network ("Ad Codes"). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Tab Affiliate Network to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Tab Affiliate Network a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser's inability to provide such information, in the alternative. All determinations made by Tab Affiliate Network in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Tab Affiliate Network's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
The following terms apply to all Ad Campaigns transmitted via e-mail by Tab Affiliate Network's Affiliates on behalf of Advertiser. Any and all e-mail based Ads:
shall comply with all applicable federal and state laws including, but not limited to, the CAN-SPAM Act of 2003 ("CAN-SPAM") and any and all Federal Trade Commission implementing regulations;
must not infringe, misappropriate or otherwise violate any copyright, patent, trademark, trade secret or other similar intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity including, without limitation, rights of privacy and publicity; and
must not result in any consumer fraud, product liability or breach of contract to which Advertiser is a party or cause injury to any third party. Advertiser shall cause a valid physical postal address for Advertiser to appear in each e-mail Ad, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after e-mail delivery). Tab Affiliate Network may make available, at a Tab Affiliate Network-designated FTP site ("FTP Site"), a suppression list (and associated login information), updated on a regular basis, generated from e-mail Ad Campaigns transmitted by Tab Affiliate Network's Affiliates for Advertiser under applicable IO(s). Advertiser shall upload its own list of suppressed e-mail addresses to the FTP Site, if one is provided by Tab Affiliate Network, or send its suppressed e-mail addresses to Tab Affiliate Network via e-mail no less than daily. If no such suppressed e-mail addresses are supplied by Advertiser, then Tab Affiliate Network may conclude that no such addresses exist. The suppression list and login provided by Tab Affiliate Network are deemed to be Confidential Information of Tab Affiliate Network, as defined hereinbelow. Suppression lists may not be used by Advertiser for any purpose other than to comply with applicable laws regulating e-mail transmissions. Advertiser agrees to process any unsubscribe requests within seven (7) days of being posted at the FTP Site.
The rates for Actions shall be set forth in the applicable IO(s). Tab Affiliate Network will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Tab Affiliate Network within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Tab Affiliate Network may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5 per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Tab Affiliate Network for all attorneys' fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Tab Affiliate Network and/or any of its Publishers or Affiliates pursuant to Chapter 57 of the Laws of 2008 amending the New York State Tax Law. These terms/this agreement and the rights hereunder are not transferable or assignable without the prior written consent of the non-assigning party; provided, however, that all rights and claims (including receivables) arising pursuant to these terms/this agreement may be assigned or transferred by either party (the "Assignor") without prior written consent of the other party (a) to a person or entity who acquires substantially all of the Assignor's assets, shares or business by sale, merger or otherwise; (b) to an affiliate of the Assignor; or (c) in connection with a lending, recourse or non-recourse factoring or other financing transaction entered or to be entered into by the Assignor.
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Tab Affiliate Network for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
it rejects within five (5) days of its receipt thereof; and
both parties determine is not a Valid Action (as defined below). Where Tab Affiliate Network determines that such Action is a Valid Action, Advertiser must pay for same. A "Valid Action" means an individual person that:
is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person;
in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and
in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser's criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions ("Action Data") that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Tab Affiliate Network, subject to any and all restrictions set forth herein ("Unaccepted Action Data"). Upon Advertiser's acceptance of a Lead/CPA-based Action (and payment to Tab Affiliate Network therefor in accordance with payment terms set forth herein and in the applicable IO), Tab Affiliate Network shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party;
will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Tab Affiliate Network;
will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product;
will not publicly display the information contained in the Unaccepted Action Data on the Internet; and
will notify Tab Affiliate Network as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Tab Affiliate Network in the investigation and prosecution of any such unauthorized use or disclosure.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon five (5) business days' prior written notice. Upon termination or expiration of the Agreement for any reason:
Advertiser will pay Tab Affiliate Network all amounts then due and owing as of the termination date within thirty (30) days as set forth in Section 7 hereinabove;
any and all licenses and rights granted to either party in connection with the Agreement shall immediately cease and terminate; and
any and all Confidential Information or proprietary information of either party that is in the other party's possession or control must be immediately returned or destroyed. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, shall survive and remain in effect in accordance with their terms.
THE TAB Affiliate Network, SERVICES, TAB Affiliate Network ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY TAB Affiliate Network UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, TAB Affiliate Network MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, TAB Affiliate Network DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE TAB Affiliate Network, SERVICES, TAB Affiliate Network ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. TAB Affiliate Network HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND TAB Affiliate Network DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. TAB Affiliate Network HAS NO LIABILITY FOR ADVERTISER'S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND TAB Affiliate Network DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER'S USE OF THE TAB Affiliate Network, SERVICES, TAB Affiliate Network ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. TAB Affiliate Network MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL TAB Affiliate Network BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF TAB Affiliate Network HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TAB Affiliate Network WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND TAB Affiliate Network'S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, TAB Affiliate Network'S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO TAB Affiliate Network BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. TAB Affiliate Network SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.
Advertiser represents and warrants that:
it has the power and authority to enter into and perform its obligations under the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will comply with all applicable foreign, federal, state or local laws, rules, regulations and ordinances including, without limitation, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, CAN-SPAM, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, and all rules and regulations promulgated under any of the foregoing, as well as all applicable state laws including, without limitation, the California Financial Privacy Act and the Vermont Consumer Protection Act, and all rules and regulations promulgated under such state laws (collectively, "Laws");
it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, Tab Affiliate Network Ads, by Tab Affiliate Network, its Publishers and Affiliates, as contemplated by the Agreement;
at all times, the Ads (and their transmission), the Advertiser Products, any Advertiser website linked to from the Ads and Advertiser itself will not violate any applicable rights of any third party including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary, property or other intellectual property right;
it will not disable "back" browser functionality to prohibit end-users from returning to the website from which the Ad was selected, if applicable;
Advertiser has a reasonable basis for any and all claims made within the Ads and possesses appropriate documentation to substantiate such claims;
Advertiser shall fulfill all commitments made in the Ads;
no Ad is targeted to end-users under the age of eighteen (18);
the Ads, Advertiser Products, any Advertiser website linked to from the Ads do not:
contain any misrepresentations or content that is defamatory;
contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexually suggestive;
promote or support gambling or sweepstakes or contests; or
contain any "worm," "virus" or other device that could impair or injure any person or entity;
Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, prohibited from engaging in transactions with U.S. citizens, nationals or entities under applicable U.S. law and regulation including, but not limited to, regulations issued by the U.S. Office of Foreign Assets Control ("OFAC"); and (m) Advertiser is not, nor is Advertiser acting on behalf of any person or entity that is, a Specially Designated National ("SDN"), as OFAC may so designate from time to time.
Advertiser shall irrevocably defend, indemnify and hold Tab Affiliate Network, its Publishers, Affiliates and each of their respective employees, officers, directors, members, managers, shareholders, contractors and agents harmless from and against any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any allegation, claim or cause of action, involving:
Advertiser's breach of the Agreement, any and all applicable IO(s) or any representation or warranty contained therein;
the Ads, Advertiser Products and/or Advertiser websites; and/or
any claim that Tab Affiliate Network is obligated to pay any taxes in connection with Advertiser's participation hereunder.
For purposes of the Agreement, "Confidential Information" shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format;
the material terms of the Agreement and/or any associated IO(s);
with respect to Tab Affiliate Network, the Unaccepted Action Data and suppression lists; and
any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in the Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers:
who need to know such information in order for the Receiving Party to perform its obligations hereunder; and
who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that:
is generally available to or known to the public through no wrongful act of the receiving party;
was independently developed by the Receiving Party without the use of Confidential Information; or
was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond.
Advertiser recognizes that Tab Affiliate Network has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent Tab Affiliate Network's relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by Tab Affiliate Network hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Tab Affiliate Network, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that Tab Affiliate Network shall be entitled to:
injunctive relief (including temporary and preliminary relief) without the requirement to post a bond;.
liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher and/or Affiliate, as applicable, for the prior twelve (12) month period; and
any and all other remedies available to Tab Affiliate Network at law or in equity.
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment. Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
an acquirer of all or substantially all of such party's equity, business or assets;
a successor in interest whether by merger, reorganization or otherwise; or
any entity controlling or under common control with such party.
Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of New York. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Tab Affiliate Network acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
IN WITNESS WHEREOF, Tab Affiliate Network and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.
These terms and conditions for Publishers (“Publisher Terms”) are between tab GmbH, with its registered office at Chausseestr. 49, 10115 Berlin, Germany, (hereinafter referred to as “tab”) and the Party submitting an application to participate as a Publisher in partner programs or to use the services of tab (referred to as “the Publisher” or “You”).p>
tab and the Publisher shall collectively be referred to as “the Parties” and singularly “the Party”.
tab operates an affiliate network (hereinafter referred to as “the tab Network”), which provides quality performance marketing and related services for tab´s advertising partners (hereinafter referred to as “the Advertisers”)
The tab network enables registered Publishers to participate in partner programs (hereinafter referred to as “partner programs”) set up by Advertisers, which gear towards supporting the Advertiser's online – and mobile games and / or related services (hereinafter referred to as “Advertiser´s Services”).
After successful registration to the tab Network and acceptance to a partner program, the Publisher may incorporate and / or embed Advertiser Ads (as defined below) into the Publisher media (as defined below), which then may result into a payment for an action (as also defined below) according to these Publisher Terms and the respective campaign terms.
The following definitions shall apply to Publisher Terms and the Purchase Order:
2. Conclusion, scope of the agreement
2.1 The Publisher may apply to participate in the tab Network by registering with the tab Network on the underlying technical platform (hereinafter “tab Platform”). During registration, the Publisher must create a unique password – protected account and provide the information requested by tab, fully and accurately (hereinafter “Account”). tab may set up an account for the Publisher with his consent in his stead.
2.2 After registering for the tab network and accepting the present publisher terms, the publisher submits an offer to tab to conclude an agreement to participate in the tab network. The conclusion of an agreement will then be confirmed by tab through e-mail.
2.3 The following publisher terms form part of each agreement, concluded as described above, or any other confirmed or otherwise concluded agreement between tab and the publisher, even – with respect to future agreements – if the publisher terms have not been expressly agreed upon again. The publisher terms and the respective campaign terms shall be collectively referred to as “the agreement”. If the P.O. and these terms contradict each other, the P.O, shall prevail.
2.4 Any terms and conditions of publishers that are contrary to or deviate from or are supplemental to these publisher terms and/or the campaign terms shall not be recognized unless the express written consent of tab has been provided. The applicability of these publisher terms shall not be impaired by the fact that tab – with knowledge of any terms and conditions of a publisher, that are contrary or supplemental to or deviate from these publisher terms – renders the tab services without reservations.
2.5 If the publisher operates a publisher network with its own (sub-) publishers, the publisher shall make sure that the terms of the agreement, including, but not limited to the campaign terms, are also effectively imposed on its sub-publishers and the publisher shall bear full responsibility to comply with the terms of the agreement, regardless of any fault of any sub-publisher.
2.6 Upon request by tab, the publisher shall give evidence, through verifiable means, that publisher´s sub-publishers have accepted effectively the agreement including the campaign terms prior to allowing to display the advertiser ads on the sub-publisher´s publisher media. Publisher agrees to maintain at all times its publisher network according to the highest industry standards. All sub-publishers must be in good standing with the publisher. In case of doubt, any reference in the agreement to the publisher shall refer to the publisher as well as to a sub-publisher.
2.7 In case of an alleged or actual breach of the agreement, including the campaign terms, to be determined upon tab´s sole discretion, by a sub-publisher of the publisher, the publisher shall immediately
a) disclose the identity and contact details of the respective sub-publisher to tab;
b) remove the sub-publisher from the partner program;
c) upon explicit request by tab: ban the sub-publisher from the participation in future partner programs with tab and / or the advertiser.
2.8 The publisher shall be solely responsible for safeguarding and maintaining the confidentiality of its account. The publisher shall remain fully and solely responsible for any and all actions take under its account, whether authorized by advertiser or not. The publisher shall immediately inform tab of any unauthorized use of its account.
2.9 The publisher shall be responsible for keeping its account information current, complete and accurate. tab shall especially not be responsible or liable for any information or notice not delivered to publisher as a result of inaccurate account information.
2.10 The campaign terms stated within the tab network shall become automatically part of the publisher terms with the application of the publisher to a partner program and / or the integration of the advertiser ads on the publisher media. Any modification of the campaign terms shall be communicated individually to the publisher and shall become binding between the parties after a period of 48 h, if not previously explicitly objected by the publisher in writing.
2.11 tab may modify the campaign terms, terminate or pause the partner program and/ or campaign, at any time with future effect, upon 48 hours prior notice, without having to give any specific reasons. The current campaign terms may be viewed on the tab platform. tab reserves the right to modify the campaign terms, terminate or pause them within 24 hours if extraordinary circumstances occur.
2.12 Once the campaign terms have been accepted by the publisher, the publisher may display the advertiser ads on the publisher media.
3. tab services
3.1 tab shall provide the publisher through the tab platform or through any other suitable means with the relevant advertiser ads of the partner program the publisher has been accepted to.
3.2 tab grants the publisher a non – exclusive, worldwide, royalty-free license to use, perform, reproduce, display, transmit, modify, copy and distribute the advertiser ads on the publisher media in accordance with the agreement.
3.3 tab shall not be obliged to render the tab services to the publisher to a certain extent and no term in the agreement shall be understood in the sense that tab must do so.
3.4 The tab platform shall be rendered under the reservation of availability. As an availability of 100 % is technically not possible, tab will use its best endeavors to keep the tab platform constantly available. However, tab reserves the right, at its own discretion, to modify, update, maintain or suspend the tab network, the tab platform and the tab´s tracking tools (“technical measures”). In such an event, tab shall notice advertiser, as far as plannable, with a period of 48 h in advance of such technical measures, if such technical measures have an substantial impact on the tab services rendered to publisher. The publisher acknowledges, that accessing and usage of the tab network may be impossible or limited for the duration of the technical measures.
4. Obligations of the publisher, advertiser ads
The advertiser ads and implemented tracking pixels or other appropriate tracking means serve to identify the publisher as a member of the partner program and will establish a link from the publisher media to the advertiser media. The publisher shall therefore not alter, modify or otherwise change any advertiser ads provided by tab, in any manner whatsoever, without tab´s prior written consent.
5. Validation of actions
5.1 Unless otherwise agreed in the campaign terms, tab´s tracking technology, preliminary results of which may be accessed by publisher through the tab platform, shall be the sole and conclusive technical system to track applicable actions. The publisher hereby accepts and acknowledges that tab´s tracking technology shall be the sole and conclusive basis for any commissions paid to publisher under the agreement.
5.2 A validated action shall solely be constituted by the following premises, all of which have to be fulfilled cumulatively
a) the action has been directly performed by a user;
b) the action has been tracked by tab´s tracking tool as set out in sect. 5.1;
c) the action is not non – valid within the meaning of section 5.4.
5.3 tab reserves the right to not-confirm an action as being valid, if the action
a) has not been approved by the advertiser;
b) is not a valid action according to the campaign terms (e.g. lead flow, geo - restrictions) .
5.4 An action shall be considered especially, but not exclusively, non – valid and therefore not being subject to any commission, if it
a) is caused through any form of misuse, including, but not limited to, by procuring actions by unfair methods and / or unacceptable means, that violate applicable laws, the publisher terms and / or the campaign terms;
b) is not caused through a user, but through a robot, spider, computer script, such as spyware, stealware, through cookie – stuffing or any other automated, artificial or fraudulent method to appear like an individual person;
c)in case of pay-per-sale, if such sale is fraudulent, cancelled, charged back or otherwise nullified;
d) is not compliant to the specific campaign terms;
e) is later determined by tab, in its sole discretion, to be fraudulent, incomplete, unqualified, abusive or duplicate (e.g. a software or mobile application has previously been installed by a user on an appropriate device).
6.1 tab shall pay to the publisher a performance related remuneration (hereinafter referred to as “commission”) for each validated action as set out in sec. 5.2, initiated on the publisher media, based on the pay-outs as described in further detail in the relevant campaign terms.
6.2 tab will not be charged by publisher for any additional ads above any level guaranteed or capped in the campaign terms.
6.3 Publisher will issue invoices to tab on a monthly basis. tab will issue to publisher upon its request a preliminary monthly report of validated actions per target countries, the advertiser services and aggregated commissions for the previous calendar month, however, not prior to the 10th of each calendar month. The invoice shall be sent to firstname.lastname@example.org. All invoices shall include
a) the campaign name and period of participation;
b) the number of (valid) actions delivered by the publisher in the respective period;
c) the corresponding advertiser services;
d) the pay-outs and the target countries of the campaign.
Commissions will be paid by tab within thirty (30) days from receipt of an invoice, given the invoice was issued correctly both formally and substantially, as set in the agreement.
6.4 Commissions to the publisher may be effected without a final review by tab as to whether the commission is based on validated actions. If actions cannot be validated as set out in sec. 5.2 following a review by tab, tab shall be entitled to re-debit the publisher within a period of 12 weeks following a disbursement and / or demand a repayment and / or offset any amount of the disbursed amount paid for non – valid actions with any amounts then due to the publisher.
6.5 In addition to any other rights and remedies available to tab, tab reserves the right to withhold or freeze any unpaid commissions or re-debit, demand repayment and / or set off any disbursed commissions – partially or in total - with any commissions then due to publisher, if tab finds sufficient evidence, that actions were non – valid as set out in sect. 5.4 a) and d).
6.6 Tab reserves the following rights with regards to payments:
a) to pay commissions to the publisher from the advertiser´s balances for the respective campaign. tab may request from advertisers sufficient amounts in advance for the respective campaigns and / or check sufficient solvency of advertisers. In case the amounts provided by an advertiser for a campaign are not sufficient to cover all publisher commissions then due, tab may pay the publishers for the respective campaign on a pro rata basis. If legal disputes with advertisers arise for specific campaigns resulting in a non-payment from advertiser to tab, tab may hold back the amount for these specific campaigns until that dispute is settled. Publisher shall have the right to invoice tab for all other campaigns which are not in dispute.
b) If advertiser does not pay the accrued amounts for the relevant campaign following a formal notice of default by tab, tab reserves the right to inform the publishers concerned about the identity of the advertiser and ask the publisher to directly assert their claim against the advertiser in question.
c) tab shall assign the corresponding claim against the advertiser to the publisher, if requested by the publisher. The publisher shall not be obliged to assert a claim against the advertiser insofar as the assertion has no prospects of success by objective and comprehensible criteria.
6.7 To reduce administrative costs, the parties agree that tab shall not be required to make any payment to the publisher until such time that the commission owed to publisher equals or exceeds € 50,00 (fifty Euros).
6.8 Unless otherwise explicitly agreed between the parties, all payments to tab shall be made in Euro.
7. Warranties, Indemnification
7.1 The publisher represents and warrants that,
a) it has the full power and authority to enter into and perform its obligations under the agreement during its duration;
b) the publisher media currently complies and will comply with all applicable laws, including, but not limited to, any applicable provisions for consumer protection, data protection and competition law;
c) no publisher media infringes intellectual property rights of third parties and/or tab and/or the advertiser, nor will publisher make tab and / or advertiser, directly or indirectly, to infringe such rights by any means;
d) it will not manipulate any browser functionalities, which prevents users from perform standard browser functions;
e) the publisher media does not contain any misinterpretations or any content that is defamatory, contain content that is violent, obscene, offensive, including content that contains nudity or implied nudity or content that is morally or ethically offensive or sexual suggestive, promotes or supports illegal gambling or sweepstakes or contests or contains any “worm”, “virus”, “Trojan” or other code which could impair or injure any hardware, software, person or entity;
f) it will not send any e-mails to e-mail addresses not previously approved by tab.
7.2 The publisher shall indemnify and hold harmless, at first request, tab from any and against any and all liability, losses, damages or expenses (including, without limitation, reasonable attorney's fees, costs and expenses) arising out of or related to any claim of any third party related to the publisher´s breach of warranties set out in this sec. 7.
8. Limitation of Liability
8.1 tab shall not be liable to for the content on publisher media, for damage or other disturbances caused by defects and / or interoperability of advertiser ads of advertisers and / or for damages resulting from the insufficient availability or imperfect functioning of the internet and / or app stores.
8.2 Apart from the limitations set out in sect. 8.1, in all cases of contractual and non - contractual liability tab shall only pay compensation for damages in accordance with the principles set forth below:
a) to the full amount, only in cases of willful acts as well as in case of absence of an agreed property, that tab has guaranteed;
b) in case of gross negligence, limited however of the amount of foreseeable damages, which should have been avoided through adherence to the obligation violated;
c) in all other cases: only for the breach of an essential contractual duty which is of special importance for achieving the purpose of the agreement and on which the parties can normally rely on (cardinal obligation) to the extent of the typically foreseeable damages. In this case, the liability for indirect and non – foreseeable damages, loss of profits, loss of savings and financial damages due to claims of third parties shall be excluded. The liability shall be limited per case to EUR 25.000, in total to the amount payable to publisher according to the agreement. Essential contractual duties are those duties, where failure to comply endangers the purpose of the agreement, e.g. significant late compliance, not just insignificant failure in cooperation and communication or not insignificant duties which are essential to the success of the contractual purpose;
d) furthermore, if tab is insured against the damages that have occurred, but restricted to the amount of insurance coverage and subject to the condition precedent of full insurance payment.
8.3 The limitations of liability set out in sect. 8.1, 8.2 of the publisher terms do not affect tab´s liability for personal injury to life, limb or health or liability under the German Product Liability act.
8.4 The exception to contributory negligence remains open for tab.
8.5 Insofar the liability of tab is restricted or excluded according to the provisions set forth above, this shall also apply to the personal liability to tab´s employees, personnel, staff and other agents as well as authorized representatives.
8.6 For all damage claims of the publisher a limitation period of one year applies.
9.1 The parties undertake to treat confidentially also beyond the end of the agreement any and all information which is protected by law or contains business or trade secrets or which is designated as being confidential, that is disclosed or provided to them by the other contracting party respectively within the context of the contractual negotiations or performance (“confidential information”).
9.2 The parties shall disclose any confidential information to their employees or any third parties on a strict need to know basis only.
9.3 Notwithstanding the foregoing, confidential information shall not include information of which it is proven by the receiving party that:
(a) it was already known to the receiving party at or prior to the time of disclosure by the disclosing party;
(b) it is or becomes publicly known through no act of the receiving party;
(c) it is received without restrictions from a third party without breach of any obligation of non-disclosure;
(d) it is independently developed by the receiving party;
(e) the receiving party is under an obligation to disclose pursuant to the order of a court of law or public authority.
10. Term and termination
10.1 The publisher terms shall be concluded for an unlimited period.
10.2 Either party may terminate the agreement for convenience purposes 48 hours prior written notice to the other party. The right to termination for cause shall remain unaffected.
10.3 Upon termination, the publisher shall remove any and all advertiser ads from the publisher media within 24 hours.
10.4 After termination, publisher will be removed from tab network.
11. Amendments, Modifications
11.1 tab reserves the right to amend or modify the publisher terms. If tab intends to amend or modify essential contractual duties as set out in sect. 8.2, tab shall inform the publisher of the intended amendments or modifications. If publisher does not object in line with formal requirements, and in good time, the amended or modified publisher terms shall become effective two (2) calendar weeks following the receipt of notification. The publisher´s objection shall only be deemed in line with the formal requirements, and in good time, if the objections is lodged in writing, and is received within the aforementioned period following receipt of notification. tab shall inform the publisher of his right to object, the formal requirements and period and the legal consequences of failing to object.
12.1 Nothing in the agreement is intended to, or shall be deemed to establish a partnership or joint venture between tab, the publisher or a publisher. The agreement shall not constitute either party to be the agent of the other party for any purpose. Neither party shall have the authority to act as an agent for, or to bind, the other party in any way. The publisher expressly agrees that any obligations set out in the respective partner program of advertiser shall in no way be construed as obligations to tab.
12.2 The publisher shall not, partially or entirely, at any time assign or transfer any rights and / or obligations under the agreement to any third party without tab´s prior written consent. tab may at any time, assign or transfer any rights and / or obligation under the agreement to any third party.
12.3 Should any individual provision of the publisher terms be regarded as being invalid, partially or entirely, this shall not affect the validity of the remaining provisions. The invalid provision shall be deemed to be replaced by a provision that is legally effective and comes closest, in the usual understanding, the economic intend and purpose of the invalid provision. The same shall apply to any unintentional omission to the publisher terms.
12.4 The Parties submit to the exclusive jurisdiction of the courts of Berlin. The right of either party to seek injunctive relief at the competent court of jurisdiction is not affected.
12.5 The publisher terms and / or the P.O. and/ or the agreement and their interpretation shall be governed by the laws of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods dated 11.4.1980.