General Terms of Business for Affiliates

1. Object of the General Terms of Business

1.1.
These general terms of business (hereinafter "Terms") form the legal framework for the participants (hereinafter "Affiliates") in the affiliate program provided by the Audisto GmbH, Hans-Thoma-Str. 4, 76593 Gernsbach, Germany (hereinafter "Audisto").
1.2.
The Terms and Conditions between the Affiliate and Audisto apply to all, including future, legal transactions and similar acts that are in connection with the Affiliate Program.
1.3.
Individual agreements and arrangements in the order description take precedence over these Terms.

2. Subject Matter of the Affiliate Program

2.1.
Subject Matter of the Affiliate Program is the compensation paid for the generation of leads by the Affiliates of Audisto, leading indirectly to the conclusion of a contract with Audisto.
2.2.
The application for services from Audisto through Affiliates is carried out within the framework of individual agencies or through advertising spaces of the Affiliates, e.g. websites or banners.

3. Conclusion of Contract

3.1.
A contract is concluded by explicit acceptance by Audisto.
3.2.
Only those who are legally competent can become Affiliates. Audisto selects Affiliates at its own discretion. There is no right to participate in the Affiliate Program.
3.3.
By participating in Audisto’s Affiliate Program, Affiliates certify that they act commercially and are not consumers.
3.4.
A credit account that is available on the Audisto website will be set up for Affiliates. An Affiliate is responsible for any misuse of access data, unless the Affiliate is able to explain and prove that the Affiliate was not at fault for the misuse of such access data.

4. Advertising media

4.1.
Audisto shall provide the Affiliate with the advertising media necessary for participating in the Affiliate Program.
4.2.
Audisto may grant the right to the Affiliate to use their own advertising media instead of the advertising media from Audisto within the framework of participating in the Affiliate Program. Such a right is subject to the approval of Audisto.
4.3.
Advertising media includes, inter alia, graphics, gift cards and hyperlinks with an identifier, which allows for a lead to be assigned to an Affiliate, possibly along with the URL of the respective offer from Audisto.
4.4.
The Affiliate shall not alter the advertising media provided without the consent of Audisto. The Affiliate shall immediately comply with any requests from Audisto to remove advertising media or replace it with new media.
4.5.
The advertising media provided shall only be used in connection with the participation in the Affiliate Program as part of its intended use. The same holds true for the use of any names, protected copyrights and trademarks, companies and the logos of Audisto.
4.6.
Audisto shall endeavor to maintain the functionality of the advertising media and the accessibility of the target pages; however, Audisto cannot guarantee that.

5. Advertising spaces

5.1.
The Affiliate shall ensure the proper technical integration of the advertising media into its advertising.
5.2.
The Affiliate shall inform Audisto about the domain of the promotional space. Audisto is not obliged to check the advertising spaces; however, Audisto is entitled to reject these if there is a violation of these General Terms and Conditions or applicable law, or Audisto may arrange for its activation. If the use of a advertising spaces by the Affiliate is prohibited by Audisto (or if it is not activated within the course of an activation process), the Affiliate shall not use advertising media on these advertising spaces and shall not generate leads without the consent of Audisto.
5.3.
The Affiliate shall not use advertising media on other advertising spaces that were not disclosed to Audisto and generate leads there.
5.4.
Unless we have explicitly agreed to this in writing, the Affiliate shall not book the term "Audisto" into internet search engines, affiliate networks or similar keyword based advertising methods and networks (this includes in particular SEA campaigns and post-view campaigns), neither as a resulting link or similar link nor as a special booking outside of the resulting links displayed by search engines.
5.5.
The Affiliate is responsible for ensuring that the advertising spaces comply with the following conditions.
5.6.
The promotional space must comply with the applicable law and in particular with the requirements of the applicable competition law (for example, the ban on spam and consumer protection) and not violate the intellectual property rights (such as copyright or trademarks) of any third party.
5.7.
The advertising spaces must comply with the legal requirements concerning provider identification information. This also applies to measures taken by the Affiliate to advertise the advertising spaces themselves.
5.8.
The Affiliate shall not place advertising media on advertising spaces that are disorderly, immoral or illegal, have the following particular content, or refer to web pages that have the following content: pornography, erotica, glorification of violence, weapons, drugs, or discriminatory, defamatory or libelous statements concerning race, sex, religion, nationality, disability or sexual orientation.
5.9.
The Affiliate shall ensure that the advertising spaces do not contain any malicious programs (such as viruses, Trojans, adware or spyware).
5.10.
URLs, link text and link descriptions that refer to Audisto and its offers, must comply with the statutory requirements for the recognition of commercial offers. They must be designed so that they are adequately recognizable as a redirect to the offers from Audisto. The Affiliate shall not use any automatic or misleading redirects to the offers of Audisto.
5.11.
It is prohibited to influence the software and technology of visitors of the advertising spaces in such a way as to impair their freedom of navigation and movement within and outside of the promotional space whereby the users are no longer consciously and voluntarily navigating (for example, use of mouse-trapping or browser hijacking).
5.12.
The Affiliate shall refrain from designing the advertising spaces in such a way as to likely cause confusion concerning the Audisto websites. The Affiliate shall, without any further agreements, avoid from giving the impression that the Affiliate is cooperating with Audisto to an extent that is beyond the Affiliate Program.
5.13.
No misrepresentations concerning both the advertising media and offers from Audisto that are advertised by the advertising media shall be contained in the advertising spaces and the advertising media used (for example, page headers, link texts and descriptions).
5.14.
The Affiliate shall ensure that the advertising spaces do not affect the reputation, esteem and credit of Audisto.

6. Lead Conditions

6.1.
The Affiliate shall forward only leads that have been supplied by the interested parties themselves while using the respective advertising media.
6.2.
Any manipulation by technical devices or other means with the aim of fraudulently obtaining claims for compensation is prohibited. The Affiliate shall not generate leads by manipulating the advertising media, operating technical devices or programs (e.g. click generators), tasking third parties to perform such manipulation for the Affiliate or by having the same, identical prospects repetitively generate leads or do so successively in a short time.
6.3.
The Affiliate shall not solicit prospects that have little or no chance of successfully procuring offers from Audisto due to their personal circumstances (e.g. lack of credit).

7. Compensation and Invoicing

7.1.
If the prospects that are forwarded by the Affiliate conclude a contract with Audisto, the Affiliate shall, for the first three contractual years, receive the following commissions, the amount of which is calculated on the basis of the net revenues generated by the forwarded customers:
  • 15% in the first year after concluding the contract;
  • 10% in the second year after concluding the contract; and
  • 5% in the third year after concluding the contract.
7.2.
The amount of compensation for leads applies unless otherwise provided in another compensation agreement concluded with the Affiliate.
7.3.
Changes to the compensation models can be made at any time. They will be made known to the Affiliate within two weeks of such a change. Changes to the rates will, in most cases, affect lead compensation.
7.4.
Compensation is only paid for visitors who become leads when they conclude a contract during a visit or subsequent visit (so-called pay-per-sale model).
7.5.
The leads forwarded by the Affiliate are continuously recorded during the contractual period and invoiced on a monthly basis in arrears to the 14th of the following month and paid within 14 days. Audisto creates an electronic credit for this, which conforms to statutory requirements.
7.6.
A different form of invoicing, for example if the Affiliate issues an invoice, is not permitted.
7.7.
The compensation owed will be paid to the Affiliate once the credit has reached at least 100 Euros, or insofar as implemented by Audisto, or it will be offset with any claims that Audisto has against the Affiliate (e.g., if the Affiliate is also a customer of Audisto).
7.8.
The Affiliate shall regularly and within a short period examine the credit in the account and immediately report any obvious or apparent defects or inaccuracies according to commercial standards no later than 14 days.
7.9.
In the case of a subsequent cancellation of a sale, the sales commission must be refunded to Audisto.
7.10.
The paying of compensation is subject to the condition that the leads have been generated in accordance with this agreement.
7.11.
If a lead has been generated by numerous Affiliates and the lead concludes a contract within 30 days, the Affiliate that first generated the lead will receive the compensation.
7.12.
The Affiliate is not entitled to compensation if the leads have been rejected by Audisto for legitimate reasons. Such reasons include the violation of these Terms and Conditions or forwarding identical leads that were previously forwarded to Audisto by another Affiliate(s).
7.13.
The Affiliates are advised that the services provided under the Affiliate Program may be subject to sales tax. The specified lead compensation represents gross pay.

8. Breach of Duties and Indemnification

8.1.
The Affiliate shall indemnify Audisto upon request against any claims made by third parties against Audisto for reasons that fall under the Affiliates control. Indemnification encompasses all costs incurred by Audisto for defense against these claims, insofar as these costs are based on measures that Audisto considered necessary at the time.
8.2.
The Affiliate is obliged to immediately inform Audisto about possible violations and to assist in the defense of the aforementioned claims by providing any required statements and information.
8.3.
Legal claims of Audisto against the Affiliate (particularly claims for removal, injunction, information and damages) are not affected by the above provisions if a breach of an obligation occurs.

9. Term and Termination

9.1.
The contract between Audisto and the Affiliate is concluded for an indefinite period and may be terminated by either party at any time without giving a reason.
9.2.
The contractual parties shall confirm the receipt of a notice of termination of the other party.
9.3.
The notice of termination shall take effect on the calendar day that follows the day on which the notice of termination was received.
9.4.
The right to extraordinary termination remains unaffected by the aforementioned termination rules.
9.5.
After termination, the Affiliate shall immediately remove all advertising media provided by Audisto from the promotional space.
9.6.
Once termination becomes effective, the Affiliate shall not receive any compensation for future contracts, even if the Affiliate has not removed the respective advertising media from the promotional space or has generated leads.

10. Indemnity

10.1.
You agree to indemnify, defend, and hold us, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives (hereinafter referred to as "Audisto Entities") of each of harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) user's access to or use of our affiliate program, (ii) your violation of the Terms, (iii) any products or services purchased or obtained by users in connection with our affiliate program, or (iv) the infringement by users, or any third party using user's account, of any intellectual property or other right of any person or entity.
10.2.
We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

11. Disclaimers and Limitation of Liability

11.1.
The following exclusions and limitations of liability apply with regard to OUR liability for damage compensation, notwithstanding the other legal claim requirements.
11.2.
WE assume unlimited liability if the cause of the damage is the result of intent or gross negligence.
11.3.
Furthermore, WE assume liability for the slightly negligent breach of significant duties, whose breach places the achievement of the purpose of the Agreement at risk, or for the breach of duties whose fulfillment generally enables the execution of the Agreement and on whose compliance they regularly rely. However, in this case, WE shall only be liable for the foreseeable damage that might typically occur under the Agreement. We are not liable for the slightly negligent breach of duties other than those stated in the above-mentioned sentences.
11.4.
The above-mentioned limitations of liability do not apply for loss of life, bodily injury or damages to health for a defect after assumption of a guarantee for the nature of the product and for fraudulent concealment of defects. Liability pursuant to the Product Liability Act remains unaffected.
11.5.
If OUR liability is excluded or limited, this also applies for personal liability of employees, representatives, agents or assistants.

12. Change in Terms

12.1.
We reserve the right to change the Terms at any time with effect from a future date. A change in essential provisions which influence your contractual claims shall be made only for valid and objective reasons, especially of a legal, technical and economic nature.
12.2.
We shall advise you of the amended Terms, at least in text form, so that you will have at least one week time to object to the change. In case of an objection, we can determine whether the previous Terms in our contractual relationship with you shall remain valid or whether you shall receive the right to termination. Should you not object to the amended Terms within the objection period, they shall be considered to have been accepted.

13. Confidentiality and data protection

13.1.
"Confidential information" is all information and documentation of the respective other party that is marked as confidential or must be treated as confidential in the given circumstances, and in particular it is information about operational processes, business relationships and know-how.
13.2.
The contractual parties agree to maintain secrecy about such confidential information. This obligation continues to apply after the end of the contract.
13.3.
Excluded from this obligation is such confidential information:
  • that was demonstrably already known to the recipient at the time of conclusion of contract or that subsequently becomes known to a third party without any infringement of a confidentiality agreement, statutory regulations or governmental directives;
  • that is generally known at the time of conclusion of contract or that becomes known thereafter, provided that this is not through any infringement of the contract;
  • that must be made known under a statutory obligation or the injunction of a court or authority. Where permitted and possible, the recipient obliged to disclosure shall notify the other party in advance and give it the opportunity of objecting against such disclosure.
13.4.
The contracting parties undertake to treat all information they gain knowledge of during the fulfillment of this contract as confidential and to use it only for contractually agreed purposes.
13.5.
The contractual parties shall observe the relevant data protection regulations. In particular they shall collect, process or use personal data only within the scope of the law.
13.6.
The rights and obligations in accordance with this section concerning confidentiality shall remain unaffected by a termination of this contract.

14. Form and conflicting provisions

14.1.
The basic form for all declarations within the framework of this contract is, subject to explicitly deviating provisions, text form with a recognizable and clearly attributed sender as well as the recipient as a minimum (for example, email with a recognizable sender). Verbal or conclusive declarations are therefore invalid. Declarations which fulfil higher form requirements can replace the text form. As far as the written form is required, the text form is also sufficient.
14.2.
Insofar as we have not explicitly agreed to their application in writing, your possibly deviating business conditions shall not apply. Even though they may be enclosed and the contract may have been supplemented, a reference to your own business conditions does not constitute our acceptance of their applicability.
14.3.
Changes to these Terms must be made in writing to be valid. This applies equally to a change to this requirement for the written form.

15. Place of Jurisdiction, Applicable Law and Final Provisions

15.1.
Place of jurisdiction shall be our registered office and the German law applies exclusively, both unless expressly agreed otherwise or pursuant to consumer protection legislation.
15.2.
Any failure on our part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
15.3.
The Terms, and any rights or obligations hereunder, are not assignable, transferable or sublicensable by you except with our prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void.
15.4.
If one of the above-mentioned provisions is partially or completely ineffective, this does not affect the effectiveness of the remaining provisions.