These general terms of service are applicable to the XOVI Affiliate Partner Programme and govern the contractual relationship between XOVI GmbH and the participant in the XOVI Affiliate Partner Programme as a referrer.
Scope of application:
XOVI GmbH, Im Zollhafen 18, 50678 Cologne, Cologne District Court, HRB 71611, telephone: +49 (0)221 67787340, represented by CEO Maik Benske operates a partner programme www.xovi.com/partner-programm for the www.xovi.com website (SAAS provider).
§ 1 Contracting Parties
The contracting parties are XOVI GmbH and the participant in the partner programme.
§ 2 Conclusion of the Agreement
(1) The agreement comes into being through the offer of the participant in the form of registering for the XOVI Partner Programme and the participant’s acceptance of these terms of service and the acceptance of the offer by XOVI GmbH in the form of activating the participant’s access. XOVI GmbH reserves the right to reject an agreement offer without stating a reason.
(2) The participant agrees to provide all the information in the registration process in a truthful manner. This particularly applies to the partner’s business activities (private person, freelancer or tradesman) and entitlement, if any, to VAT input tax deduction.
§ 3 Scope of the Terms of Service
The range of services is limited exclusively to the services described within these terms of service. For the provision of those services, these terms of service are solely applicable. Other or contrary terms shall not apply even if we do not expressly object to them.
§ 4 Language of the Agreement
The terms of service, including agreements concluded for additional services and other information given to the partner are available only in the German language. Communication between the partners will likewise be only in German.
§ 5 Modification of the Terms of Service
(1) XOVI GmbH reserves the right to modify the terms of service giving a notice period of 2 weeks. The participant will be notified of any change by e-mail or in writing by mail. At the same time, it will be pointed out to the participant that the respective modification will become part of the agreement between XOVI GmbH and the participant, if the participant does not object to this modification within 2 weeks.
(2) The objection must be made in writing and sent either by e-mail or through the post.
(3) If the participant objects, either contracting party has the right to terminate the agreement in compliance with the applicable notice period. The termination must be made in writing and sent either by e-mail or through the post.
§ 6 Description of the Partner Programme and Commission System
(1) With its partner programme, XOVI GmbH gives the participant the opportunity to refer the software of XOVI GmbH as SAAS to interested parties and to obtain a commission for doing so.
(2) For each acquisition realised for the use of XOVI software, the participant will be paid a referral commission if:
- the concluding party has clearly and successfully identified himself (either through postal or online identification) and
- the application for the use of XOVI software was filled out completely and truthfully
Concerning the participant’s entitlement to commission: verification of the customer acquired by the participant generally takes 10 days after finalisation of the licence.
(3) For each referral, the participant will receive 20 percent of the newly concluded contract monthly, which ends only upon termination by the customer. Depending on the advance payment made by the customer, the commission entitlement is calculated at 20 percent of the contract. XOVI GmbH expressly reserves the right to modify the list of commissions.
(4) Combined tracking methods are used for awarding commissions to a participant. The ID of the participant assigned to him at one time upon registering is saved through a cookie to the hard drive of the visitor to be referred when the link URL in the promotional material is called up. Once the ID of the participant has been successfully saved to the hard drive of the visitor, the ID is removed from the link URL. Should the visitor register more than once with XOVI GmbH with several affiliate participants thus being involved in the process between the first visit and registration, the awarding of commission is based on “last cookie wins”.
(5) XOVI GmbH regularly verifies the quality of interested parties referred by determining the average values of various conversion rates (number of visits, registrations, closures).
(6) Transfer of referral commissions and acquisition commissions to other participants is prohibited. The transfer of a participant account to another participant is likewise prohibited.
(7) With the payment of the commission, all costs of the partner are compensated.
§ 7 Promotional Guidelines
(1) The partner agrees to promote XOVI GmbH in compliance with applicable laws and regulations as well as in compliance with proper competition and common decency. It is prohibited to promote XOVI software with defamatory, fabricated or “half-truth” negative statements about third parties or about XOVI GmbH itself.
(2) XOVI GmbH and the XOVI Partner Programme may only be promoted in the German and English languages. Irrespective of the advertising space, promotional activity or business model used by the partner, no depiction of violence, sexually explicit images or discriminating, abusive or libellous statements with regard to race, sex, nationality, political orientation, religion, disability, age and/or sexual orientation may be made in connection with the promotion or mention of XOVI GmbH or the XOVI Partner Programme. Moreover, Xovi GmbH is allowed to terminate the partnership at any time, if in the opinion of XOVI GmbH, the advertising space, promotional activity or business model provide a negative or unsuitable environment for the promotion of XOVI GmbH or the XOVI Partner Programme.
(3) Further, trademark rights and exploitation rights for the promotional material and tracking links need to be observed:
1. Brand names, banners, texts, images and other promotional materials of other partner programmes and providers may not be used to promote XOVI software or the partner programme.
2. The participant agrees to indemnify the company XOVI GmbH against damage claims by third parties arising from the unauthorised use of promotional material.
3. The participant agrees to use only the promotional material provided by XOVI GmbH in the partner programme. Proprietary promotional material may be used for the promotion only after receiving written permission from XOVI GmbH. Consent given by e-mail is sufficient in this case.
4. The source code provided may not be changed. Shortening or cloaking of the required tracking links is allowed only if XOVI GmbH can clearly identify the website on which the corresponding promotional material or corresponding link is integrated which brought the visitor to XOVI.
5. Content and promotional materials provided by XOVI GmbH may be used only for the intended purpose of referring interested parties. The “XOVI” and “XOVI Tool” registered trademarks may not be used for the promotion of other offers.
6. Proprietary domain names containing the trademarked term “xovi” or misspellings thereof may not be registered.
7. Likewise, the registration and use of websites/group names or promotional activities containing the term “xovi” are not allowed on social media portals such as Facebook, Google+, Twitter, Adwords, XING, etc.
8. If the participant breaches the exploitation rights of the promotional material, XOVI GmbH has the right to close the participant’s account and cancel commissions. XOVI GmbH further has the right to make a claim for damages.
(4) The interested party needs to have voluntarily filled out the registration for XOVI software based on autonomous, self-determined motives. The offering of a bonus of any type (such as money, non-cash benefit or service) or forced clicks or forced applications on the part of the participant or cookie dropping are prohibited. The placing of post-view campaigns is possible only in special cases on prior consultation. Commissions resulting from unauthorised post-view campaigns (written proof) need not be paid out.
(5) Expressly prohibited is promotion through paid e-mail providers such as anzeigen-lesen.de, klickportal24.de, earnstar.de, info-mails.de. Likewise prohibited is promotion that brings visitors to XOVI GmbH or XOVI Partner Programme without these visitors being aware and voluntarily wanting to visit the XOVI website or the XOVI Partner Programme page and without an offer of a bonus [see also §7 Promotional Guidelines (4)].
(6) In preparing content for their own websites, participants may be inspired by the content on the XOVI Partner Programme page. The unmodified copying of complete sentences or complete passages of text as well as graphics and illustrations is not allowed, on the other hand. Likewise the inclusion of the XOVI website or the XOVI Partner Programme page as an IFrame in part or in whole is not allowed. The only exceptions are specifically in the partner programme backend for the participant’s use of graphics and illustrations provided as well as promotional material containing IFrame technology.
(7) The sending of spam mails promoting XOVI software or the XOVI Partner Programme is forbidden. Mailing campaigns are only allowed in exceptional cases and upon prior agreement. Spam in forums, newsgroups, blogs and other social media channels such as Facebook, Google+, Twitter through mass postings is likewise prohibited.
(8) The keyword booking of the “XOVI” brand name is not allowed. The “XOVI” brand name may not be used in the ad text nor in the URL. This applies to all search engines (e.g. Google, Yahoo, Bing) and search networks (such as Google Search Network, Yahoo Bing Network) as well as for all text ad networks (such as Google Display Network, Qualigo, Mirago, Contaxe).
(9) Promotion of XOVI on advertising marketplaces such as eBay, eBay Classifieds, Meine-Stadt.de, Kalaydo.de, dhd24.com etc. is allowed in principle. It should be noted that XOVI GmbH may not be named in the ad nor may the XOVI logo be used.
(10) In a breach of the promotional guidelines or through other irregularities, the partner can be immediately blocked and present or future claims for compensation will not be paid. Further, the agreement with the partner can be terminated and excluded from the partner programme. Additionally, XOVI GmbH expressly reserves the right to compensation for damages.
§ 8 Obligations of XOVI GmbH/Payment of Commissions
(1) After registering in the XOVI partner programme, XOVI GmbH agrees to provide the participant with promotional material.
(2) XOVI GmbH further agrees to transfer payment of commissions due to the participant twice monthly provided the partner’s credit balance exceeds the payout minimum of 150 Euro and the payout has been requested.
(3) XOVI GmbH will deduct transfer fees to a participant’s bank account in a non-EU country from the participant’s commission. XOVI GmbH will cover the costs for commissions of 500 Euro and above.
§ 9 Code of Conduct and Obligations of the Participant
When registering for the XOVI Partner Programme, the partner agrees to correctly provide all information necessary for the cooperation and to update this information should it change. XOVI GmbH assumes no liability for damages incurred due to unreachable e-mail addresses, mailing addresses or bank accounts.
§ 10 Termination of the Referral Agreement
(1) The agreement may be terminated by either party within one working day without stating a reason. If the participant wishes to terminate the partnership, XOVI GmbH is to be informed by mail to email@example.com or through the partner programme contact form giving first name and surname, company name (if applicable), user name, affiliate ID and current complete address.
(2) In a breach of the terms of service or applicable law, XOVI GmbH can terminate the agreement with immediate effect. There is no entitlement to payment of such commissions that were generated through a breach of the terms of service or applicable law. Further, XOVI reserves the right, in the case of termination pursuant to § 10 (2) sentence 1 to offset any commission claims with claims for damages incurred.
(3) If the agreement is terminated by the participant or by XOVI GmbH with no breach of the terms of service, the credit balance will be paid on the next date of payment, as along as the minimum payout amount has been reached.
§ 11 Limitation of Liability
(1) The contractual and statutory liability for damages, regardless of the legal grounds, as well as the liability of legal representatives and agents of XOVI GmbH is limited as follows:
a) For a slightly negligent breach of major contractual obligations, XOVI GmbH shall be liable only up to the amount of the typically foreseeable damages at the time of concluding the agreement.
b) For a slightly negligent breach of minor contractual obligations or force majeure, XOVI GmbH is not liable.
c) “Material contractual obligations” are those obligations that are material to the contract which protect the legal position of the partner, obligations which the contract is to grant according to its content and purpose; further, obligations material to the contract are those whose fulfilment is prerequisite to the proper execution of the contract in the first place and on whose compliance with the partner has normally relied or may rely.
(2) The aforementioned limitation of liability does not apply in cases of mandatory legal liability (particularly in accordance with the Product Liability Law), if and insofar as XOVI GmbH has assumed a guarantee and for bodily injuries (injury to life, limb or health) that are culpably caused, or in the case of breach of other obligations within the meaning of § 241 para. 2 German Civil Code (BGB) the services offered can no longer be expected of the customer or a procurement risk was assumed as well as in the case of default of a set performance deadline.
(3) The participant is obliged to undertake appropriate measures to avert and limit damage.
(4) A reversal of the burden of proof is not connected with the preceding provisions.
§ 12 Data Protection
(1) When accessing the XOVI website, the participant’s internet browser automatically transmits data to the web server for technical reasons. This includes:
- actual IP address of internet access used
- source web page, if a visit has come about through a link
- date and time of access
- operating system used, browser name (e.g. Internet Explorer, Firefox, etc.) and browser version
- name of the internet access provider
- volume of data transaction
This data is stored anonymously and serves solely for statistical purposes or technical network and system monitoring for the detection of server faults (logfiles).
(2) Any personal information made available to XOVI GmbH is used only for the answering of queries, for the processing of closed agreements, for the payment of commissions and for technical administration. Storage is in electronic form and comprises the following mandatory information given when registering for participation such as user name, first name, surname, e-mail address, website URL, complete address including country, telephone number and bank account information (if subject to VAT, also the VAT registration number and tax number) as well as optional information such as company name, fax number, date of birth and Skype address.
Personal information will only be shared with third parties or otherwise passed on if it is required for the fulfilment of the contract or consent had previously been given. Due to legal requirements, XOVI GmbH is obliged in certain cases (e.g. for the clarification of attempted fraud) to forward personal information to law enforcement agencies and if applicable, injured third-parties. The participant in the partner programme has the right to revoke any consent given to XOVI GmbH for the collection, processing and use of personal information at any time with effect for the future. The revocation can be made in writing to XOVI GmbH, Im Zollhafen 18, 50678 Cologne or by e-mail to firstname.lastname@example.org.
There is also the possibility to have the information in the partner account and thus the personal information be amended, blocked or deleted by XOVI GmbH. Excluded from this is only information required for the processing of transactions effected or for the enforcement of rights or third-party rights. Future transactions following the blocking or deletion of your information, however, are possible only after re-registering.
§ 14 Severability Clause, Final Provisions
(1) The pre-contractual relationship between XOVI GmbH and the participant in the partner programme, these terms of service as well as any agreements concluded thereunder are subject to the laws of the Federal Republic of Germany under exclusion of the UN CISG.
(2) Unless it is here expressly agreed or depicted otherwise, these terms of service constitute the entire agreement of the parties. All previous agreements and arrangements are hereby superseded and replaced.
(3) Public statements concerning the partner programme only become part of the services if they are expressly confirmed in writing in the individual case.
(4) Modifications and/or supplements to these terms of service must be made in writing to be effective.
(5) If any provision of the Terms (AGB) or a provision later recorded therein be or become invalid in whole or in part for reasons other than those in §§ 305 to 310 of the German Civil Code (BGB), or should a loophole in this agreement or its supplements become apparent, it will not affect the validity of the remaining provisions. It is agreed that the invalid provision or the filling of the loophole be replaced by the effective and viable regulation that comes closest to the financial and legal aims of what the parties intended or would have intended based on the meaning and purpose of the agreement and its later possible supplements, if this point had been considered at the time of closing the agreement. If the invalidity of a provision is based on specified criteria of service or time (deadline or appointment) therein, then a provision is to be agreed that comes closest to the original criteria permitted by law.