Terms and Conditions
Advertiser Terms & Conditions
This AppLift Advertiser Terms & Conditions (“Advertiser Agreement"), shall govern the relationship between AppLift GmbH, Rosenstr. 17, 10178 Berlin (“AppLift) and the advertiser (“Advertiser"), whereby Advertiser may obtain access to the AppLift Advertising Network (“AppLift Advertising Network") of registered third party affiliates and publishers (“Media Partners"), and related technology and software (“AppLift Advertising Network Ad Server"), to market customized advertisements and links provided by Advertiser and/or AppLift (“Ads" as further defined below). The AppLift Advertising Network, as well as the services provided by AppLift in connection therewith (“Services"), are further described in the Insertion Order (“IO") which refers to these Advertiser Terms & Conditions (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.
1. AppLift Advertising Network/Services
Advertiser agrees to accept and pay for, and AppLift agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, AppLift shall undertake marketing campaigns with Advertiser (each an “Ad Campaign") whereby AppLift 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, AppLift Advertising Network Ads (as defined below) through the AppLift Advertising Network either:
- on Media Partner websites via the AppLift Advertising Network Ad Server for impressions-based (“CPM"), click based (“CPC") and action based (“CPA") Ad Campaigns as defined below; or
- by Media Partners via e-mail based marketing, search engine marketing, website based marketing and/or other online and mobile marketing means. In connection with such Ad Campaigns, Advertiser shall pay AppLift commissions depending on the number of valid clicks (“CPC") or valid, compensable conversion events such as leads, downloads, installs, users, paying users or any other defined action or result generated on behalf of Advertiser as set forth in the subject IO (collectively, “CPA" or “Actions"; including CPC). The applicable Actions, the fees due to AppLift for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. AppLift shall not be held liable or responsible for any actions or omissions of its Media Partners.
Upon the execution of the Agreement, AppLift will register Advertiser on the AppLift Advertising Network website and create a unique, password-protected account (“Account"). AppLift will manage this Account on behalf of Advertiser. In case Advertiser receives the login data to this Account, Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsible for any and all actions taken under Advertiser's Account, if they were performed by Advertiser or authorized by him. The same applies to any actions taken under Advertiser's Account if the login data to this Account was given to any third party by Advertiser. Advertiser must immediately notify AppLift of any unauthorized use of Advertiser's Account. Advertiser is responsible for keeping the Account information provided to AppLift current, complete and accurate, and Advertiser acknowledges and agrees that AppLift 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 AppLift 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 AppLift or any Media Partner prepares on Advertiser's behalf (such portions hereinafter referred to as, the “AppLift Advertising Network Ads" and together with the Advertiser Ads, the “Ads"). The parties understand and agree that AppLift or the respective Media Partner is the sole owner of any and all intellectual property rights associated with the AppLift Advertising Network Ads, other than Advertiser's trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the AppLift Advertising Network Ads. Under no circumstances shall AppLift or the respective Media Partner be authorized to use the Ads other than in connection with Advertiser's Ad Campaigns as set forth in the IO(s). AppLift reserves the right, in its reasonable 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 AppLift. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where AppLift deems, in its reasonable 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 AppLift or any of its Media Partners.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by AppLift and/or its Media Partners, 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 Advertizing Network" or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that AppLift and/or its Media Partners may determine, in their respective sole discretion.
5. Ad Codes, Conversion Tracking and Tracking
Unless otherwise stated in writing by AppLift, each Ad or link used by AppLift in connection with a Campaign must include, in unaltered form, the special transaction tracking computer code or tracking link provided by AppLift (“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 AppLift to be used in connection with any and all Ads in order to track actions such as installs, leads or other conversion events.
AppLift's Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
If Advertiser is working with several marketing partners he has to ensure that for all campaigns run through AppLift the “last click wins principle" applies, i.e. the conversion event will be attributed to the marketing partner which generated the last click of the respective user before the conversion event.
In case so-called “server-to-server" tracking is employed in order to track the conversion events (“Actions") defined in the IO, Advertiser has to ensure that all defined Actions are accurately tracked and timely reported to AppLift's system including the correct unique click ID used by AppLift in the tracking URL. In case technical problems or outages caused by either of the parties' systems lead to a non-restorable loss of conversion data, one of the following methods should be used to determine the correct number and attribution of conversion events (applied in the order of their listing):
- “manual" matching of MAC addresses, IDFAs or any other unique identifiers that can be retrieved ex-post by the Media Partner and Advertiser in order to determine attribution and number of conversion events, or
- approximation based on historical conversion rate data (click-to-action) from AppLift's system in the following preferential order:
- if available from the same campaign,
- or from the most comparable campaign for which historical data is available in AppLift's system. “Comparable" means that the campaign should be closely comparable with regards to the defined conversion event (“action"), product and platform, chosen countries, advertising methods used and Media Partners.
6. Technical and Commercial Limitations; Changes; Availability
Unless otherwise provided for in the Agreement, AppLift provides the AppLift Advertising Network through which it renders it services on an “AS IS" and “AS AVAILABLE" basis.
AppLift offers the Advertiser use of its AppLift Advertising Network over the Internet subject to technical and commercial limitations as defined below.
AppLift may modify the AppLift Advertising Network without prior notice. Therefore, the Advertiser is granted a right of use only for the then current version. The Advertiser may reduce or cease its use of the AppLift Advertising Network in the event that it is modified.
AppLift reserves its right to cease operation of the AppLift Advertising Network at any time, without giving reasons or prior notice. Any balance owed to the Advertiser will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
AppLift undertakes to assure an availability of the AppLift Advertising Network of 95% (ninetyfive percent) as a yearly average. Periods during which the AppLift Advertising Network is not available because of technical or other problems outside AppLift's control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this. AppLift may restrict access to the AppLift Advertising Network if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data. The Advertiser's rights in case of intent or gross negligence remain unaffected.
The rates for Actions shall be set forth in the applicable IO(s). AppLift will invoice Advertiser once monthly. Unless otherwise set forth in the applicable IO, payment will be due to AppLift within seven (7) days of the date appearing on each invoice.
In connection with CPA-based Ad Campaigns, Advertiser will pay AppLift for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
- it rejects within two (2) days of its receipt thereof; and
- both parties determine is not a Valid Action (as defined below). A “Valid Action" means that the action
- was not performed by 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.
AppLift retains the right to charge additional fees and interest for the delay of payments. Our delayed payments fee structure is as follows:
- 10 EUR administration per month plus
- 3% of invoiced amount per month (uncompleted months will be charged on a pro rata basis)
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. The right to an extraordinary termination of this Agreement for good cause remains unaffected.
Upon termination or expiration of the Agreement for any reason:
- Advertiser will pay AppLift all amounts then due and owing as of the termination date within seven (7) days as set forth in Section 6 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 kept confidential stated out in §13.
9. Warranty/Limitation of Liability
- AppLift is not responsible for damages, unless they are caused intentionally or by gross negligence.
- Liability for breach of a cardinal obligation or an essential obligation is limited to the typical damage which could have been foreseen. A cardinal obligation is an obligation whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust.
- The aforementioned limitations of liability do not apply to the liability for personal injury of life, body, and health or in case the damage is the result of a guarantee. AppLift remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
- The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of AppLift and their members.
10. Representation and Warranties
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;
- it owns and/or has any and all rights to permit the use of the Advertiser Ads and, where approved, AppLift Advertising Network Ads, by AppLift, the Media Partners, 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;
Each party agrees to indemnify and hold the other party harmless from and against any losses, costs, liabilities and expenses, including reasonable attorneys' fees, arising out of any third party claims resulting from the breach of obligations or the warranties made by such party in the Agreement. The indemnifying party has the right, at the indemnifying party's expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party's defense of such claims.
12. Claims Based on Defects
AppLift grants the Advertiser access to the AppLift Advertising Network in the then current version only. The Advertiser cannot claim that a given state or functional range is maintained or achieved. The Advertiser acknowledges that the AppLift Advertising Network, as any other software, can never be completely free of bugs. Therefore, the AppLift Advertising Network can only be considered to be defective if its usability is affected severely and for a significant period of time.
The Advertiser shall document any faults in the AppLift Advertising Network, and report them in writing (along with a log of the error messages displayed, if applicable). The Advertiser will use its best efforts to support AppLift in any attempts to debug.
The Advertiser will notify AppLift of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail). To comply with this, it is sufficient that the report is sent in time. If no notice has been given within this deadline, all claims based on such defects shall forfeit.
AppLift is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by AppLift.
AppLift does not assume any warranties.
No party shall disclose any Confidential Information of the other party during the term of this Agreement and for a period of time of five years following the termination or expiration of this Agreement. 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);
- 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 AppLift has proprietary relationships with the Media Partners. Advertiser agrees not to circumvent AppLift's relationship with such Media Partners, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by AppLift hereunder from any Media Partners that is known, or should reasonably be known, by Advertiser to have such a relationship with AppLift, 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 Media Partners 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 a breach, or threatened breach, of this Section will not be adequate by themselves and that AppLift shall be entitled to liquidate damages from Advertiser in the amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Media Partner, as applicable, for the prior twelve (12) month period. If the respective period is shorter than 12 months, the amount due will be calculated based on the true duration of the partnership to an equivalent of 12 months. Advertiser has the right to prove that no or only substantial lower damages occurred and AppLift has the right to prove that higher damages occurred.
15. Force Majeure
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 Advertizing 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.
16. Changes to the Agreement
- AppLift may make changes to the Agreement (including amendments) at any given time, for the future, if this should prove necessary (in particular to reflect changes in the AppLift Advertising Network or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Advertiser is not disadvantaged contrary to good faith.
- The Advertiser will be notified of changes to the Agreement in appropriate written form (possibly via e-mail). AppLift will notify the Advertiser on the AppLift Advertising Network, or via e-mail.
- The Advertiser may dispute changes to the Agreement within a time period of two weeks following receipt the notification of the changes and the possibility of taking notice thereof. It is recommended that the Advertiser submit its opposition in writing (for example via e-mail).
- The changes to the Agreement become binding in the event that the Advertiser (i) does not dispute the changes within the above-mentioned time period or (ii) continues to use the AppLift Advertising Network or (iii) continues to place IOs, after having received the notification of the changes to the Agreement without having disputed the changes.
- AppLift will inform the Advertiser about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Advertiser about the changes to the Agreement.
- If the Advertiser disputes the changes in time, each party may terminate the Agreement with one month's prior notice unless termination is possible at any time according to § 8 or the IO. Until termination, the Agreement in their former version will govern the Advertiser's relationship with AppLift. The Advertiser does not have any other claims against AppLift.
- 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.
- The Agreement shall be construed in accordance with and governed by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
- The courts of Berlin, Germany, shall have exclusive jurisdiction.
- By registering, you grant AppLift the right to name the Advertiser as a reference for AppLift's Services. This includes the right to use the Advertiser's logo on AppLift's websites. The Advertiser may revoke this right at any time, in writing, for any future use.
- 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. 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. This also applies if the Agreement is incomplete.
- Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, employment, franchise or joint venture between the parties.
IN WITNESS WHEREOF, AppLift and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.
Media Partner Terms & Conditions
This Media Partner Terms & Conditions (the “Agreement") is made and entered into by and between AppLift GmbH, Rosenstr. 17, 10178 Berlin (“AppLift"), and you (“Media Partner" or “her"/"she"), the party submitting an application to become an AppLift media partner. The terms and conditions contained in this Agreement apply to your participation in AppLift's media partner program accessible at partner.staging3.applift.com or through other websites or applications AppLift may make available (“Media Partner Program"), being operated on AppLift's own or third party service provider online platform (“Advertising Platform"). Each Media Partner Program offer (an “Offer") may be for any offering by AppLift or a third party (each such third party a “Client") and may link to a specific web site for that particular Offer (“Program Web Site"). Furthermore, each Offer may have additional terms and conditions on pages within the Media Partner Program that are incorporated as part of this Agreement. By submitting an application or participating in an Offer, you expressly consent to all the terms and conditions of this Agreement.
1. Enrollment in the Media Partner Program
- You must submit a Media Partner Program application from our website. You must accurately complete the application to become an media partner (and provide us with future updates) and not use any aliases or other means to mask your true identity or contact information. After we review your application, we will notify you of your acceptance or rejection to the Media Partner Program, generally within two (2) business days. We may accept or reject your application at our sole discretion for any reason.
- Media Partner must accurately complete the application to become a Media Partner (and provide us with future updates) and not use any aliases or other means to mask Media Partner's true identity or contact information.
- By filling in the application Media Partner submits a binding offer to enter into a contract with AppLift according to the terms and conditions of this Agreement.
- After AppLift reviews Media Partner's application, AppLift will notify him of his acceptance or rejection to the Media Partner Program, generally within two (2) business days.
- AppLift may accept or reject Media Partner's application at its sole discretion for any reason.
- AppLift offers its services to commercial Media Partners only. Consumers are not eligible to become a Media Partner.
2 Obligations of the Parties
a) Subject to our acceptance of you as a media partner and your continued compliance with the terms and conditions of this Agreement, AppLift agrees as follows:
- AppLift will make available to Media Partner via the Media Partner Program graphic and textual links to the Program Web Site and/or other creative materials (collectively, the “Links") which Media Partner may display on web sites and apps owned or controlled by her, in emails sent by Media Partner and clearly identified as coming from her and in online advertisements (collectively, “Media"). The Links will serve to identify Media Partner as a member of AppLift's Media Partner Program and will establish a link from her Media to the Program Web Site.
- AppLift will pay Media Partner for each Qualified Action (the “Commission") an amount as defined in the respective Offer's description. A “Qualified Action" means an action as defined in the Offer's description performed by an individual person who (i) accesses the Program Web Site via the Link, where the Link is the last link to the Program Web Site, (ii) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real live person, (iii) is not using pre-populated fields (iv) completes all of the information required for such action within the time period allowed by AppLift and (v) is not later determined by AppLift to be fraudulent, incomplete, unqualified or a duplicate.
- AppLift will pay Media Partner any Commissions earned monthly, provided that her account balance is currently greater than 50 USD. Accounts with a balance of less than 50 USD will roll over to the next month, and will continue to roll over monthly until 50 USD is reached. Since AppLift will endeavor to pay out Commissions to the Media Partner as early as possible, this cannot be done unconditionally. AppLift therefore reserves the right to charge back to Media Partner's account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action. In case Media Partner's later account balance is lower than the due charge back amount she is obliged to transfer the due amount back to AppLift upon request within no more than 7 business days. AppLift reserves the right to claim charge backs for up to 3 months after the respective Qualified Action has been performed by the user. AppLift also reserves the right to reclaim a payment at a later date within the statutory limitation periods if AppLift can show that the payment to the Media Partner was not based on a payment claim due to a Qualified Action.
- In case AppLift is obliged to pay back monies already collected to Clients, banks, or payment providers, such monies are deductible in the month they are paid back. The same applies in respect of monies paid back to Clients, banks, or payment providers in the event that AppLift agrees to do so on a bona fide basis to settle a dispute, unless such settlement is not reasonable, and the Media Partner contradicts in writing within 10 business days upon being informed. Circumstances which oblige AppLift to pay back monies to Clients include alleged abuse or other instances of fraud for which AppLift is not responsible, as well as refunds. Circumstances which oblige AppLift to pay back monies to payment providers or banks include credit card or debit card fraud committed by Media Partners or their agents, and “Chargebacks". Chargebacks mean any credit or debit card transactions that are returned for reimbursement of the cardholder's account for any reason.
- Payment for Commissions is dependent upon Clients providing such funds to AppLift, and therefore, if a Client does not provide sufficient funds, AppLift will pay the Commissions for the relevant Media Partner Programs to all Media Partners on a pro rata basis, if necessary. If the Client does not provide sufficient funds to AppLift within 2 weeks, the Media Partner shall be entitled to claim payment from the Client directly and is obliged to do so before making any claim against AppLift. In this case, if requested to do so, AppLift shall assign its claims against the Client to the Media Partner in a sum equivalent to the amount due to the Media Partner. The Media Partner is not obliged to make a claim against the Client directly if such claim is clearly without a chance of success due to the Client being destitute.
- The Media Partner shall be solely responsible for the payment of, and shall pay when due and indemnify AppLift against, all applicable taxes, including any VAT and other sales, use, excise or transfer taxes and other taxes associated with payments to Media Partner under the Agreement (except for taxes assessed on AppLift's net income).
- AppLift shall automatically generate an invoice on behalf of Media Partner for all Commissions payable under this Agreement and shall remit payment to Media Partner based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by AppLift in its reasonable discretion.
- In the event that Media Partner disputes in good faith any portion of an invoice, Media Partner must submit that dispute to AppLift in writing and in sufficient detail within 14 days of the date on the invoice. If Media Partner does not dispute the invoice as set forth herein, then Media Partner agrees that it irrevocably waives any claims based upon that invoice.
- In the event that Media Partner is also tracking Qualified Actions and Media Partner claims a discrepancy, Media Partner must provide AppLift with Media Partner 's reports within three (3) days after 30th day of the calendar month, and if AppLift's and Media Partner 's reported statistics vary by more than 10% and AppLift reasonably determines that Media Partner has used generally accepted industry methods to track Qualified Actions, then AppLift and Media Partner agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then AppLift's numbers shall govern.
- If Media Partner has an outstanding balance due to AppLift under this Agreement or any other agreement between the Media Partner and AppLift, whether or not related to the Media Partner Program, Media Partner agrees that AppLift may offset any such amounts due to AppLift from amounts payable to Media Partner under this Agreement.
- By and rendering the services according to this Agreement, AppLift acts only as an agent between the Client and the Media Partner. The Client itself is solely responsible for submitting offers for Advertising Programs to the Media Partner. AppLift has no influence in this regard and thus provides no guarantee that offers, and thus Advertising Programs, will be available in satisfactory quantity.
- AppLift does not allow Clients to transmit any Advertisement through the Advertising Platform to the Media Partner that is unlawful, defamatory, libellous, harassing, abusive, fraudulent or obscene, or to link their Advertisements to such content. Upon being informed thereof, AppLift shall promptly remove any Advertisement containing such content. The Media Partner does not have any other claims against AppLift. The Media Partner acknowledges that AppLift does not constantly control all Advertisements and the respective links, as Clients have the possibility to upload Advertisements.
- The Media Partner can request AppLift to block Links from a list of specified Clients (“Blocked Clients"). Such list may be updated by the Media Partner at any time. The updated list becomes binding for AppLift only once the Media Partner has transmitted it to AppLift through electronic tools provided by AppLift. In the event that Links from Blocked Clients is displayed by the Advertising Platform on the Media, the Media Partner shall inform AppLift without undue delay, and provide appropriate documentation.
- AppLift shall use commercially reasonable efforts to block Links, from the collection of Links provided to the Media Partner for display on the Media, from Blocked Domains.
- AppLift takes reasonable measures to protect its systems against viruses, spyware and other malicious code (together “Malicious Code"), and shall take reasonable measures to check, or have its Clients check, all Links delivered through its systems to the Media Partner, for Malicious Code. However, the Media Partner acknowledges that Malicious Code can never be completely prevented. It is the Media Partner's responsibility to protect all data stored on its systems against unauthorized access, and data loss. The Media Partner shall make its users waive, as far as legally permissible, all potential claims against AppLift based on Malicious Code, and inform its users as to appropriate measures to protect their systems.
- Unauthorized third parties may send e-mails under the name of AppLift, without AppLift's knowledge or consent, and such e-mails may contain Malicious Code or links to web content which, in turn, contains Malicious Code. AppLift cannot prevent such behaviour. The Media Partner shall, therefore, recommend its users to check all incoming e-mail for Malicious Code prior to opening them.
b) Media Partner also agrees to:
- Have sole responsibility for the development, operation, and maintenance of, and all content on or linked to, Media Partner's Media.
- Ensure that all materials posted on Media Partner's Media or otherwise used in connection with the Media Partner Program (i) are not illegal, (ii) do not infringe upon the intellectual property or personal rights of any third party and (iii) do not contain or link to any material which is harmful, threatening, defamatory, obscene, sexually explicit, harassing, promotes violence, promotes discrimination (whether based on sex, religion, race, ethnicity, nationality, disability or age), promotes illegal activities (such as gambling where applicable), contains profanity or otherwise contains materials that AppLift informs Media Partner that it considers objectionable (collectively, “Objectionable Content").
- Accept that AppLift neither endorses nor approves of actions performed or content made available by the Media Partner.
- Hold AppLift harmless of any third party claims alleging the Media Partner Media contains illegal content.
- Not make any representations, warranties or other statements concerning AppLift or Client or any of their respective products or services, except as expressly authorized herein.
- Make sure that Media Partner's Media does not copy or resemble the look and feel of the Program Web Site or create the impression that Media Partner's Media is endorsed by AppLift or Clients or a part of the Program Web Site, without prior written permission from AppLift.
- Comply with all (i) obligations, requirements and restrictions under this Agreement and (ii) laws, rules and regulations as they relate to Media Partner's business, her Media or her use of the Links.
- Comply with the terms, conditions, guidelines and policies of any third party services (if any) used by Media Partner in connection with the Media Partner Program, including but not limited to, email providers, social networking services and ad networks.
- Always prominently post and make available to end-users any terms and conditions in connection with the Offer set forth by AppLift or Client, or as required by applicable laws regarding such Offers.
- Make sure to not place AppLift ads on any online auction platform (i.e. eBay, Amazon, etc).
c) The following additional program-specific terms shall apply to any promotional programs set forth below:
- Email Campaigns. For all email campaigns, Media Partner must – if available – download the “Suppression List" from the Offers section of AppLift. Media Partner shall filter its email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on its email list. AppLift will provide an opt-out method in all Links, however, if any opt-out requests come directly to Media Partner, Media Partner shall immediately forward them to AppLift at email@example.com. Media Partner's emails containing the Links may not include any content other than the Links, except as required by applicable law.
- Media Partner agrees that failure to download the Suppression List and remove all emails from the database before mailing may result in Commission withholdings, removal or suspension from all or part of the Media Partner Program, possible legal action and any other rights or remedies available to AppLift pursuant to this Agreement or otherwise. Media Partner further agrees that it will not mail or market to any suppression files generated through the AppLift network, and that doing so may result in Commission withholdings, removal or suspension from the Media Partner Program, possible legal action and any other rights or remedies available to AppLift pursuant to this Agreement or otherwise.
- Advertising Campaigns. No Links can appear to be associated with or be positioned on chat rooms or bulletin boards unless otherwise agreed by AppLift in writing. Any pop-ups/unders used for the Media Partner Program shall be clearly identified as Media Partner served in the title bar of the window and any client-side ad serving software used by Media Partner shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users prior to installation, the installation is pursuant to an affirmatively accepted end user license agreement and the software be easily removed according to generally accepted methods.
- Media Partner Network Campaigns. All Media Partner s that maintain their own Media Partner networks and intend to broker AppLift's offers through their network need prior written approval from AppLift. In case approval is granted, Media Partner agrees to place the Links in its Media Partner network (the “Network") for access and use by those Media Partners in Media Partner's Network (each a “Third Party Media Partner “). If Third Party Media Partner is itself a network (and thus working with further Third Party Media Partners), then Media Partner needs to get prior written approval from AppLift for each one of those Third Party Media Partner Networks. Media Partner agrees that it will expressly forbid any Third Party Media Partner to modify the Links in any way. Media Partner agrees to maintain its Network according to the highest industry standards. Media Partner shall not permit any party to be a Third Party Media Partner whose web site or business model involves content containing Objectionable Content. All Third Party Media Partners must be in good standing with Media Partner. Media Partner must require and confirm that all Third Party Media Partners affirmatively accept, through verifiable means, terms at least equivalent to those in this Agreement prior to obtaining access to the Links. Media Partner shall promptly terminate any agreement with a Third Party Media Partner who takes, or could reasonably be expected to take, any action that violates the terms and conditions of this Agreement. In the event that either party suspects any wrongdoing by a Third Party Media Partner with respect to the Links, Media Partner shall promptly disclose to AppLift the identity and contact information for such Third Party Media Partner. Media Partner shall promptly remove any Third Party Media Partner from the Media Partner Program and terminate their access to future Offers of AppLift in the Network upon written notice from AppLift. Unless AppLift has been provided with all truthful and complete contact information for a Third Party Media Partner and such Third Party Media Partner has affirmatively accepted terms at least equivalent to those in this Agreement as recorded by AppLift, Media Partner shall remain liable for all acts or omissions of any Third Party Media Partner.
- Incentive Traffic: Media Partner acknowledges that AppLift is a non-incentivized traffic network. This means, that Media Partner is not allowed to provide incentives (e.g. virtual or real currency) to his or her users for performing any actions resulting in a successful conversion event. Conversions achieved through providing incentives will therefore be treated as invalid and may lead to the exclusion of Media Partner from AppLifts' network. This applies to all offers unless incentive traffic is explicitly approved in the offer description. AppLift may explicitly approve incentive traffic for certain offers in writing (e.g. via Email) on a case by case basis. Media Partner will generally receive lower payouts for incentive traffic, details will be specified within the offer description or in separate Email.
- Unless otherwise agreed upon, Media Partner may not use any self-generated creative assets that have not explicitly been approved by AppLift. Self-generated creative assets that do fully comply with the advertizers' marketing message and brand identity and are therefore only adjusted variations of the creative material provided in the offer description will generally be approved.
3. Confidentiality, Non-Circumvention
- Except as otherwise provided in this Agreement or with the consent of AppLift, Media Partner agrees that all information, including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning AppLift or any of AppLift's clients and/or partners provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Media Partner for any purpose other than her participation in the Media Partner Program.
- Media Partner shall especially not use any information obtained from the Media Partner Program to develop, enhance or operate a service that competes with the Media Partner Program, or assist another party to do the same.
- After and during the term of the Agreement, neither party will use for any purpose or disclose to any third party, any Confidential Information of the other party. Any exception to this must be obtained in advance.
- The foregoing restriction does not apply to information that has been developed independently by the receiving party without access to the other party's Confidential Information or has been rightfully received from a third party authorized to make such disclosure or has been approved for release in writing by the disclosing party or has become publicly known through no breach of this Sect. 3 by the receiving party or is required to be disclosed by a competent legal or governmental authority, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure.
- Media Partner explicitly agrees to withhold completely from entering into a business relation with or from approaching AppLift's clients either directly or through third parties with regard to user acquisition or performance marketing services for the term of this Agreement and a period of time of six months after the end of this agreement.
- Any direct or indirect business relations between Media Partner and AppLift's clients with regard to the above named services have to either involve AppLift as intermediary or require AppLift's prior written consent.
- This also extends to any other companies founded, in whole or in part held, controlled or administered directly or indirectly by Media Partner, as long as Media Partner is able to prevent such actions against the interests of AppLift.
- Media Partner is personally responsible to follow this commitment and must not use any means to circumvent his obligation.
- Breach of this clause will result in a contractual penalty to be determined by an independent court in AppLifts' residential country and should not be less than twice the financial loss caused through this unauthorized action with a minimum fee of 750,00 EUR.
- An obligation to reimburse damages will thereby not be excluded. This also applies to any rights granted to AppLift by Sect. 87 ff. German Commercial Code (Handelsgesetzbuch, HGB).
- In case Media Partner can prove having entered into a business relation with AppLift's client (the advertiser) before entering into a business relation with AppLift, this clause should not be enforced.
4. Limited License & Intellectual Property
- AppLift grants Media Partner a nonexclusive, nontransferable, revocable right to use the Links and to access AppLift's web site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of identifying Media Partner's Media as a participant in the Media Partner Program and assisting in increasing sales through the Program Web Site. AppLift does not grant to the Media Partner any license, express or implied, to the intellectual or industrial property of AppLift or its licensors, except for a limited right of use according to the terms and for the duration of the Agreement.
- Media Partner may not alter, modify, manipulate or create derivative works of the Links or any AppLift graphics, creative, copy or other materials owned by, or licensed to, AppLift in any way. Furthermore, Media Partner agrees not to modify, alter, create or copy derivative works of the provided data, information, content or software of the Advertising Platform.
- Media Partner is only entitled to use the Links to the extent that she is a member in good standing of the Media Partner Program. AppLift may revoke Media Partner's license anytime by giving her written notice. Media Partner agrees that she will use any data (including any usage data and compilations thereof), information or software, provided by AppLift to her, only for the purpose of providing and optimizing Links for AppLift on her Media according to the Agreement.
- Except as expressly stated herein, nothing in this Agreement is intended to grant Media Partner any rights to any of AppLift's trademarks, service marks, copyrights, patents or trade secrets.
- By registering, Media Partner grants AppLift the right to name her as a reference for AppLift's services. This includes the right to use the Media Partner's logo on AppLift's websites and show advertising best practices to other Media Partners of AppLift. The Media Partner may revoke this right at any time, in writing, for any future use. Media Partner agrees that AppLift may use any suggestion, comment or recommendation she chooses to provide to AppLift without compensation.
- All rights not expressly granted in this Agreement are reserved by AppLift. AppLift will retain all rights, title, and interests in and to the Advertising Platform (except for any licensed content and third-party Advertisements included therein), including all data (such as any usage data and compilations thereof), information and software related thereto. The Media Partner acknowledges that the software, information, content and data related to the Advertising Platform (such as any usage data or compilations thereof) are protected for AppLift under copyright and similar rights and may contain trade secrets or other intellectual or industrial property owned or licensed by AppLift.
- This Agreement shall commence on the date of AppLift's approval of Media Partner's Media Partner Program application and shall continue thereafter until terminated as provided herein.
- Each party has the right to terminate the Agreement at any time with immediate effect, unless otherwise agreed upon. Media Partner may terminate her participation in the Media Partner Program at any time by sending written notice to her account manager. AppLift may terminate Media Partner's participation in one or more Offers or this Agreement at any time and for any reason which AppLift deems appropriate with or without prior notice to Media Partner by disabling the Links or providing her with a written notice.
- The parties remain free to terminate the Agreement for cause at any time.
- In case AppLift is responsible for a termination of the Agreement for cause, all outstanding amounts shall be paid out, provided those amounts were earned through qualified actions as defined in §2.a.3. The Media Partner shall not have any other claims, unless otherwise provided in the Agreement.
- AppLift may terminate the Agreement in particular for, but not limited to, the following reasons:
- The Media Partner culpably breaches any legal rule, or the Agreement, and such breach remains unremedied despite written notice (possibly via e-mail); a written notice is not required in case of a severe contravention, i.e. when it would be unreasonable that AppLift remains bound by the Agreement.
- The Media Partner encourages fraud (as defined in Sect. 8).
- The Media Partner has not used its account for six months despite a reminder.
- Cases in which it would be unreasonable for AppLift to remain bound by the Agreement generally include infringements of Sect. 2 b) 2., 2. b) 4., and 4.2 of the Agreement.
- In case AppLift rightfully declares termination for cause, AppLift is entitled to withhold 50 % percent of all Commission still payable to the Media Partner as damages. The Media Partner remains free to prove that no, or only substantially lower damages, were suffered.
- If there is no option to terminate the Agreement within the Advertising Platform, the termination has to be declared in writing. A termination for cause can only be declared in writing. E-mail is sufficient.
- Upon termination of Media Partner's participation in one or more Offers or this Agreement for any reason, she will immediately cease all use of and delete all Links, plus all AppLift or Client intellectual property, and will cease representing herself as an AppLift or Client Media Partner for such one or more Offers.
- In addition to any other rights and remedies available to AppLift under this Agreement and by law AppLift reserves the right to delete any actions submitted through Media Partner's Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to Media Partner account if (i) AppLift determines that she has violated this Agreement, (ii) AppLift receives any complaints about her participation in the Media Partner Program which AppLift reasonably believes to violate this Agreement or (iii) any Qualified Action is later determined to have not met the requirements set forth in this Agreement or on the Media Partner Program. Such withholding or freezing of Commissions, or charge backs for paid Commissions, shall be without regard as to whether or not such Commissions were earned as a result of such breach.
- In the event of a material breach of this Agreement, AppLift reserves the right to disclose Media Partner's identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by her actions.
7. Anti-Spam Policy
- Media Partner must strictly comply with the law in regard to sending email and other messages. All emails sent in connection with the Media Partner Program must especially include the appropriate party's opt-out link. From time to time, AppLift may request – prior to Media Partner sending emails containing linking or referencing the Media Partner Program that Media Partner submits the final version of her email to AppLift for approval by sending it to her AppLift representative and upon receiving written approval from AppLift of her email the email may be transmitted to third parties.
- It is solely Media Partner's obligation to ensure that the email complies with the law. Media Partner agrees not to rely upon AppLift's approval of her email for compliance with the law, or assert any claim that she is in compliance with the law based upon AppLift's approval.
- Media Partner is expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other Media Partners or falsify information in connection with referrals through the Links or the generation of Commissions or exceed her permitted access to the Media Partner Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks and/or actions through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud.
- AppLift shall make all determinations about fraudulent activity in its reasonable discretion.
9. Representations and Warranties
- Media Partner hereby represents and warrants that this Agreement constitutes her legal, valid, and binding obligation, enforceable against her in accordance with its terms and that Media Partner has the authority to enter into this Agreement.
- Subject to the other terms and conditions of this Agreement, AppLift represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to AppLift's own business operations or AppLift's proprietary products or services.
- Each log-in to the Advertising Platform is subject to the Agreement. The Agreement can be printed or saved on storage media.
- AppLift may make changes to the Agreement (including amendments) at any given time, for the future, if this should prove necessary (in particular to reflect changes in the Advertising Platform or changes in the legal framework applicable to it, such as new legislation or case-law) and provided the Media Partner is not disadvantaged contrary to good faith.
- The Media Partner will be notified of changes to the Agreement in appropriate written form (possibly via e-mail). AppLift will notify the Media Partner on the Advertising Platform, or via e-mail. Changes to the Agreement will always be highlighted upon first login after the changes or amendments have been made.
- The Media Partner may dispute changes to the Agreement within a time period of two weeks following receipt the notification of the changes and the possibility of taking notice thereof. It is recommended that the Media Partner submits its opposition in writing (for example via e-mail).
- The changes to the Agreement become binding in the event that the Media Partner (i) does not dispute the changes within the above-mentioned time period or (ii) continues to use the Advertising Platform or (iii) continues to place Links on the Media, after having received the notification of the changes to the Agreement without having disputed the changes.
- AppLift will inform the Media Partner about the possibility of disputing the changes and the legal consequences, especially the legal consequences of a lack of opposition, when notifying the Media Partner about the changes to the Agreement.
- If the Media Partner disputes the changes in time, each party may terminate the Agreement with one month's prior notice unless termination is possible at any time according to Sect. 5. Until termination, the Agreement in their former version will govern the Media Partner's relationship with AppLift. The Media Partner does not have any other claims against AppLift.
- In addition, AppLift may change, suspend or discontinue any aspect of an Offer or Link or remove, alter, or modify any tags, text, graphic or banner ad in connection with a Link. Media Partner agrees to promptly implement any request from AppLift to remove, alter or modify any Link, graphic or banner ad that is being used by Media Partner as part of the Media Partner Program.
- Unless otherwise provided in the Agreement, AppLift will usually communicate with the Media Partner via e-mail. The Media Partner shall make sure that it receives all e-mails sent by AppLift to the address submitted in the course of the application, or at a later date. The Media Partner will in particular configure the spam filter accordingly and regularly check all incoming e-mail under this address. AppLift may choose any other appropriate means of communication.
11. Independent Investigation
- Media Partner acknowledges that she has read this Agreement and agrees to all its terms and conditions.
- Media Partner has independently evaluated the desirability of participating in the Media Partner Program and each Offer and is not relying on any representation, guarantee or statement other than as set forth in this Agreement or on the Media Partner Program.
12. Claims Based on Defects
- AppLift grants the Media Partner access to the Advertising Platform in the then current version only (see Sect. 14). The Media Partner cannot claim that a given state or functional range is maintained or achieved. The Media Partner acknowledges that the Advertising Platform, as any other software, can never be completely free of bugs. Therefore, the Advertising Platform can only be considered to be defective if its usability is affected severely and for a significant period of time. This is especially the case if the mathematical calculation or the display of the Media Partner's Commission (see § 7) is incorrect, unless the error is negligible.
- The Media Partner shall document any faults in the Advertising Platform, and report them in writing (along with a log of the error messages displayed, if applicable). Before reporting a potential bug, the Media Partner will consult the instruction and other troubleshooting tools provided by AppLift (especially frequently asked question lists, forums and boards for troubleshooting). The Media Partner will use its best efforts to support AppLift in any attempts to debug.
- The Media Partner will notify AppLift of any faults, without undue delay upon discovery, in writing (fax, letter or e-mail). To comply with this, it is sufficient that the report is sent in time. If no notice has been given within this deadline, all claims based on such defects shall forfeit.
- AppLift is not liable for defects caused by external influences, faulty handling, force majeure or changes or manipulations which are not carried out by AppLift.
- The Media Partner is liable for any costs incurred by AppLift based on incorrect reports by the Media Partner, especially in the event that there is no defect, or the defect has been caused by the Media Partner itself.
- AppLift does not assume any warranties.
13. Mutual Indemnification
- Media Partner hereby agrees to indemnify, defend and hold harmless AppLift and Clients and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on (i) any failure or breach of this Agreement, including any representation, warranty, covenant, restriction or obligation made by Media Partner herein, (ii) any misuse by Media Partner, or by a party under the reasonable control of Media Partner or obtaining access through Media Partner, of the Links, Offers or AppLift or Client intellectual property, or (iii) any claim related to Media Partner's Media, including but not limited to, the content contained on such Media (except for the Links).
- AppLift hereby agrees to indemnify, defend and hold harmless Media Partner and its subsidiaries, affiliates, partners, and their respective directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees and costs) based on a claim that AppLift is not authorized to provide Media Partner with the Links.
- The indemnifying party has the right, at the indemnifying party's expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party. The indemnified party agrees to cooperate with the indemnifying party's defense of such claims.
14. Technical and Commercial Limitations; Changes; Availability
- Unless otherwise provided for in this Agreement, AppLift provides the Advertising Platform on an “AS IS" and “AS AVAILABLE" basis.
- AAppLift offers the Media Partner use of the Advertising Platform over the Internet subject to technical and commercial limitations as defined below.
- AppLift may modify the Advertising Platform without prior notice. Therefore, the Media Partner is granted a right of use only for the then current version. The Media Partner may reduce or cease its use of the Advertising Platform in the event that those are modified.
- AppLift reserves its right to cease operation of the Advertising Platform at any time, without giving reasons or prior notice. Any balance owed to the Media Partner will be paid out. Any other claims are excluded, unless otherwise provided for in the Agreement.
- AppLift undertakes to assure an availability of the Advertising Platform of 95% (ninety percent) as a yearly average. Periods during which the Advertising Platform are not available because of technical or other problems outside AppLift's control (such as force majeure or third party fault) and periods during which routine maintenance works are carried out, are excluded from this. AppLift may restrict access to the Advertising Platform if required for network security, maintenance of network integrity and the prevention of severe malfunction of the network, the software or stored data. The Media Partner's rights in case of intent or gross negligence remain unaffected.
15. Limitation of Liability
- AppLift is not responsible for damages, unless they are caused intentionally or by gross negligence.
- Liability for breach of a cardinal obligation or an essential obligation is limited to the damage which could have been foreseen. A cardinal obligation is an obligation whose fulfillment is a prerequisite for enabling the proper fulfillment of the contract in the first place and in which the customer may normally trust.
- The damage which can be foreseen is limited to EUR 2,500.00 per Media Partner.
- The aforementioned limitation of liability also applies to the personal liability of staff, employees, assistants, vicarious agents, contributors, representatives, organs, shareholders of AppLift and their members.
- The aforementioned limitations of liability determined in Sect. 15.1 to 15.4 do not apply to the liability for personal injury of life, body, and health. The limitation of liability pursuant to Sect. Sect. 15.1 and 15.4 does not apply in case the damage is the result of a breach of a cardinal obligation, an essential obligation or a guarantee. AppLift remains responsible for product liability, and according to Sect. 44 a TKG (German Telecommunication Law).
16. Data Protection
- The Media Partner agrees to provide AppLift, and/or the Clients on request, with figures regarding delivery, the number of clicks, and other advertising-related data.
- The Media Partner shall store all data reported by AppLift through the Advertising Platform (including user data and usage data) in conformity with all legal requirements.
- The Media Partner shall not transmit any personal data (i.e. data allowing identification of an individual) to AppLift, unless data protection laws allow for such transmission.
- The Media Partner acknowledges that AppLift and/or the Clients may store user data and usage data, which they collect automatically or through forms filled in by the users.
- The Media Partner acknowledges that AppLift and/or the Clients may use such data to optimize their offers and services, to better target users with Advertisements which better match their interests, and for statistical purposes, market research, and the promotion of their respective goods and services.
- The Media Partner acknowledges that AppLift and/or the Clients may use e-mail addresses and other contact data submitted by the users for marketing and promotion, as far as allowed by applicable law.
17. Protection of Login Data
- The Media Partner shall keep all access data (login, passwords etc.) for the Advertising Platform (“Access Data") strictly confidential. The Media Partner shall promptly inform AppLift in case it learns or suspects that an unauthorized third person is in possession of the Access Data.
- In case AppLift has reason to believe that an unauthorized third party is in possession of Access Data, AppLift may, without assuming any responsibility to do so, and always acting in its sole discretion, change the Access Data without prior notice or block the respective account. AppLift will promptly inform the Media Partner and will, upon request, communicate the new Access Data to the Media Partner without undue delay. The Media Partner cannot claim to have its initial Access Data restored.
- In case a third party uses, through the Media Partner's fault, the Media Partner's Access Data, the Media Partner is liable for all such actions, and for damages. In such event, all access through the Media Partner's Access Data shall be considered as an access by the Media Partner.
18. Governing Law & Miscellaneous
- The courts of Berlin, Germany, shall have exclusive jurisdiction.
- The laws of the Federal Republic of Germany apply for all contracts concluded by AppLift on the basis of the Agreement and any claims arising therefrom, and for all claims related to the use of the Advertising Platform. The application of the United Nations Convention on Contracts for the International Sale of Goods and German International Private Law are excluded.
- This Agreement contains the entire agreement between AppLift and Media Partner with respect to the subject matter hereof, and supersedes all prior and/or contemporaneous agreements or understandings, written or oral. Terms and conditions of the Media Partner do not become part of the Agreement, unless AppLift has accepted them in writing.
- All or any of AppLift's rights and obligations under the Agreement may be assigned to a subsequent owner or operator of the Advertising Platform in a merger, acquisition or sale of all or substantially all of AppLift's assets. The Media Partner must not assign or transfer the Agreement or any or all of its rights thereunder without the prior written consent of AppLift. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and valid assigns of the parties hereto.
- Except as set forth in the “Modifications" section above, this Agreement may not be modified without the prior written consent of both parties. Any changes, amendments or the abrogation of the Agreement (partly or entirely) require written form (letter, fax or e-mail); the requirement of written form can only be waived in written form.
- If any provision of this Agreement is held by a court of competent jurisdiction to be unlawful, void, invalid or inoperative, then in such jurisdiction that provision shall be deemed severable from the Agreement and the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties.
- Each party to this Agreement is an independent contractor in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
- AppLift's failure to act with respect to a breach by the Media Partner does not waive AppLift's right to act with respect to that breach or subsequent or similar breaches. No consent or waiver by AppLift under the Agreement shall be deemed effective unless delivered in writing and signed by a duly appointed representative of AppLift.
- Section headings used in the Agreement are for convenience only and shall not affect the interpretation of the Agreement.
- The English version of the Agreement is decisive.
- By submitting and application to Media Partner Program, Media Partner affirms and acknowledges that she has read this Agreement in its entirety and agrees to be bound by all of its terms and conditions. If Media Partner does not wish to be bound by this Agreement, she should not submit an application to Media Partner Program. If an individual is accessing this Agreement on behalf of a business entity, by doing so, such individual represents that they have the legal capacity and authority to bind such business entity to this Agreement.
General Terms and Conditions for Raffles
Participating in a Raffle offered by the Promoter on social media (Facebook etc.) is subject to the following Terms and Conditions as well as to any additional terms and conditions indicated in the details of the raffle:
1. Entry and Entry Requirements
1.1 The purchase of a product or service or the subscription to a newsletter is not a requirement for entry into a Raffle nor does it increase an Entrant's chance of winning.
1.2 If you (“Entrant" or “You") wish to enter into the Raffle, follow the instructions in the social media post.
1.3 Entry is open only to persons over 18. Entry can be made in the Entrant's own name or company's name. Entry is not open to employees of AppLift and all other persons engaged in developing/carrying out the Raffle (e. g. agencies, consultants, and suppliers), their immediate families and members of their households.
1.4 It is a mandatory requirement for valid entries that, when required, all personal details provided by the Entrant are true and correct.
1.5 AppLift is entitled to exclude any Entrant from participating in the Raffle who manipulates, or tries to manipulate, the entry process or the draw, or violates the Terms and Conditions or public morality, or otherwise tries to influence the Raffle in any unfair or dishonest manner. 1.6 Entry into the Raffle is free.
1.7 Only one entry per person is allowed.
2. How the Draw is carried out
2.1 The lucky winner will be chosen at random from all entries which fulfil the entry requirements. AppLift reserves the right to verify whether or not the entry requirements have been fulfilled.
2.2 The prize(s) available is/are specified on the social media posting. The description and image of the prize provided are merely symbolic and not binding. No cash alternatives will be offered. The winner's entitlement to the prize is not transferable.
2.4 All winners will be notified after the draw date either by email to the email address provided or by post to the postal address provided.
2.5 The winner shall within 30 days after notification (i) contact AppLift to receive their prize if he/she is instructed to do so when notified on Facebook. Otherwise the prize shall be deemed as unclaimed and a supplementary winner may be drawn.
AppLift shall be liable only for damages caused by wilful or grossly negligent conduct. This limited liability shall not apply to damages resulting from damage to life, body and/or health, or from the violation of any material obligation. Liability for a negligent violation of any material obligation shall be limited to foreseeable damages.
4. Premature Termination of the Raffle
4.1 AppLift reserves the right to end or suspend the Raffle at any time without prior notice. This shall apply, in particular, if the proper operation of the Raffle cannot be guaranteed due to technical reasons (e. g. viruses in the computer system; manipulation or errors affecting the hardware and/or software), or due to legal reasons.
4.2 Save as provided in Section 3 above, the Entrant cannot claim performance or damages if the Raffle is terminated prematurely pursuant to Subsection 4.1.
5. Data Protection
5.1 Being a responsible entity as defined by the German Federal Data Protection Act, AppLift collects, processes, and uses, all personal data disclosed to AppLift in connection with the Raffle only in compliance with the applicable laws and regulations referring to data protection. For the purpose of these Terms and Conditions, Personal Data include the following personal data You provide in connection with the Raffle: first name and last name, date of birth, street address, postal code, place, country, and email address, as well as data which are created in connection with your entry, such as your status as an Entrant or winner if applicable. AppLift will not disclose your personal data to any third party. Your personal data will be collected, processed and used exclusively for the purpose of carrying out the Raffle.
5.2 You are entitled by law to request free information about the personal data We have stored in relation to your person, and to request that We correct, block or delete these personal data. Please contact AppLift if You want to claim any of these rights referred to above.
5.3 If You request that your personal data be deleted before the Raffle is completed, your entry into the Raffle is deemed to be terminated as well. In that case, You are no longer eligible for a prize.
5.4 If You use our Website for your entry or in connection with the Raffle, the data protection regulations for using our Website shall also be applicable.
6. Consent to Usage of Winner's Name in Publicity
Your personal data may be used in accordance with this Section 6 in addition to the usage of your personal data provided for in Section 5. Your consent as specified below is given voluntarily and will not influence your entry into the Raffle or your chance of winning.
The Entrant agrees to his/her first name, last name, place of residence and the prize awarded being made publicly available by AppLift if he/she wins for the purpose of publicity, in particular on AppLift's Website or in Social Media marketing (including Facebook and Twitter). The Entrant may revoke his/her consent at any time. No extra compensation is paid for giving this consent.
The Promoter of the Raffle under these Raffle Draw Terms and Conditions is AppLift, Rosenstrasse 17, 10178 Berlin.
8. Additional Provisions
8.1 The Raffle Terms and Conditions and the legal relationship between the Entrants and AppLift are governed exclusively by German law, to the exclusion of private international law and the UN Sales Convention.
8.2 If any provision of the Raffle Terms and Conditions is or becomes invalid, this shall not affect the validity of the remainder of the provisions. The invalid provision shall be replaced by the applicable legal provision.
8.3 Any recourse to the courts of law is excluded.
This Agreement was last revised July 2013