TERMS AND CONDITONS
This Affiliate Agreement („Agreement“) between you as the Affiliate/Publisher (hereinafter together „Affiliate“) and Bitterstrawberry.com – a division of BITTERSTRAWBERRY HOLDING AG, Gaiserstrasse 129, 9050 Appenzell, Switzerland (hereinafter „ Bitterstrawberry.com“), or any other subsidiary sites owned by BITTERSTRAWBERRY HOLDING AG (hereinafter „ Bitterstrawberry.org“), are the binding terms and conditions under which the Affiliate may operate as a non-exclusive Affiliate of Bitterstrawberry.com.
BY SIGNING UP AS AN AFFILIATE, THE AFFILIATE HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS EACH OF THE PROVISIONS SET FORTH HEREIN; THAT THE AFFILIATE HAS HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL OF THEIR OWN CHOICE AND HAD TO HAVE EACH OF THE PROVISIONS SET FORTH HEREIN FULLY EXPLAINED BY SUCH COUNSEL; AND THAT THIS AGREEMENT IS ENTERED INTO FREELY, VOLUNTARILY, AND WITHOUT ANY DURESS OR UNDUE INFLUENCE OF ANY NATURE BY, OR ON BEHALF OF, ANY PERSON OR ENTITY.
1.1 Bitterstrawberry.com accepts an Affiliate at its sole discretion. Bitterstrawberry.com only accepts Affiliates with the age of at least 18 (eighteen) years.
1.2 Upon acceptance as an Affiliate by Bitterstrawberry.com, Bitterstrawberry.com will set up an Affiliate´s account for administrative, legal and financial purposes. A legally binding contract is concluded between the Affiliate and Bitterstrawberry.com.
1.3 During the term of this Agreement, Bitterstrawberry.com engages Affiliate as a nonexclusive Affiliate and Affiliate agrees to be engaged as such.
1.4 Affiliate agrees to promote sites and services of Bitterstrawberry.com in compliance with the applicable laws and these terms and conditions.
2.1 Either party may terminate this Agreement without cause with immediate effect at any time.
2.2 If the Agreement is terminated the Affiliate must cease to use the licenses, sites and services of Bitterstrawberry.com immediately.
2.3 Bitterstrawberry.com is entitled at its sole discretion to terminate its websites and services at any time without notice.
3. Sites, Services and Content Restrictions
3.1 After being accepted as an Affiliate, the Affiliate will receive from Bitterstrawberry.com banners, text links and/or banners as links to Bitterstrawberry.com websites und services.
3.2 The Affiliate shall only use the provided links in accordance with the terms and conditions in this Agreement. The Affiliate shall use the provided links at its discretion within its own websites and designs.
3.3 The Affiliate shall at no time be permitted to alter, modify and/or expand the provided links or any other promotion material provided by Bitterstrawberry.com in any way.
3.4 The Affiliate shall only promote the websites assigned to be promoted by Bitterstrawberry.com.
3.5 The Affiliate shall not promote, advocate, facilitate or otherwise include any of the following in connection with Bitterstrawberry.com websites und services:
3.5.1 Any material that contains software viruses or any other computer code, files or campaigns designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
3.5.2 Any software, product or service that is illegal or that violates the rights of a third party including, but not limited to spyware, adware, campaigns designed to send unsolicited spamware, services that send unsolicited advertisements, campaigns designed to initiate “denial of service” attacks, mail bomb campaigns, and campaigns designed to gain unauthorized access to networks on the internet;
3.5.3 Any software, product or service that harvests or collects the personal information of users, whether or not for commercial purposes, without the express consent of such users;
3.5.4 Any spoofing, redirecting or trafficking from other sites in an effort to gain traffic;
3.5.5 Any content that infringes upon the intellectual property rights of any third party;
3.5.6 Any material that otherwise infringes or is alleged to infringe upon or violate the rights of any third party including, without limitation, material may give rise to any claim of false or misleading advertising, unfair competition, invasion of rights, of publicity or privacy, violation or any anti-discriminatory law or regulation, or violation any other right of any person or entity and/or
3.5.7 Any illegal activity whatsoever.
4. Youth Protection & Guarantees
4.1 The Affiliate is obliged and guarantees to maintain its websites in compliance with applicable law, especially with respect to media laws and regulations, especially but not limited to spam-laws, protection of minor law and criminal law. The Affiliate also guarantees to keep its files and systems up to date at all times according to the communications and agreements made with Bitterstrawberry.com.
4.2 The Affiliate will indemnify and hold harmless Bitterstrawberry.com, its assignees, employees, agents and officers against any claims including legal fees which are asserted against Bitterstrawberry.com, its assignees, employees, agents and officers and which are based on a violation of the foregoing paragraphs.
5. Affiliate Commission
5.1 The Affiliate commission is negotiated between Bitterstrawberry.com and the Affiliate.
5.2 Upon acceptance of an Affiliate by Bitterstrawberry.com, Bitterstrawberry.com will set up an Affiliate account to acquire all commissions earned by the Affiliate.
5.3 If not otherwise mutually agreed upon Bitterstrawberry.com undertakes to make payments to Affiliates 60 (sixty) days after the end of the relevant calendar month in which a sale is made or any action that would result in Bitterstrawberry.com being paid.
5.4 Payment is only made to Affiliates that have a minimum balance of USD 250 (two hundred and fifty US Dollars) in the Affiliate account. Affiliates who do not meet the minimum balance requirements will not be eligible for payment until it has been reached. Furthermore any account that has had no payment actions for a period of 6 (six) calendar months will be deemed to be abandoned and terminated. In such event Bitterstrawberry.com will apply a closing account charge in its absolute discretion of USD 50 (fifty US Dollar) and shall be entitled to net this amount from the abandoned account before any balance is paid over to the Affiliate. In case the Affiliate has not reached the minimum balance of USD 250 and decides to terminate his account, all fees (including, but not limited to bank fees) regarding the closing of the account shall be paid for by Affiliate.
5.5 Affiliate payments will only be made when funds are actually received by Bitterstrawberry.com. The Affiliate commission will be calculated without payments which are not effected (e.g. chargebacks) and less payment fees, disbursements and applicable taxes. In the event that no funds are paid to Bitterstrawberry.com then no payments shall be due to the Affiliate and such monies will be written off.
5.6 Bitterstrawberry.com reserves the right to adjust payments due to the Affiliate to account for void payments as necessary.
5.7 Bitterstrawberry.com will provide the Affiliate with a detailed real time reporting system showing commission that is pending, approved or void. The Affiliate agrees to regularly check his reports to ensure that the commission shown is correct.
5.8 Bitterstrawberry.com accepts no responsibility for any errors or omissions and their consequential implications which are not notified to void payments in writing within 10 (ten) working days. This 10 (ten) day period begins on the day that the payment action which generated the commission took place.
5.9 In the event of any Affiliate fraud, all transactions in the Affiliates account will be reversed. In addition Bitterstrawberry.com may recover any payments made before fraud has been detected. Bitterstrawberry.com also reserves the right to take legal or criminal action against the companies and/or individuals involved.
5.10 The Affiliate will supply an invoice before payment will be made. All invoices must include full legal details including VAT number where appropriate.
5.11 Any Affiliate to whom Bitterstrawberry.com may pay regular or one off large sums of money may be asked to provide information in compliance with money laundering regulations. Failure to comply will result in monies being withheld.
5.12 The Affiliate is responsible for the payment of all tax and national insurance payable on any payments made to it by Bitterstrawberry.com.
5.13 In the case that Bitterstrawberry.com suspects that the Affiliate account has been used in an invalid manner or if you have provided any information that is untrue or inaccurate, not current or incomplete, the respective account may be deactivated effective immediately and with no notice to the Affiliate pending further investigation and, without limiting obligations to make any payments due hereunder, not only restricted to those payments associated with the invalid activity.
6. Ownership & Intellectual Property
6.1 All materials, documents, data, software, information and inventions supplied to Affiliate by or on behalf of Bitterstrawberry.com shall be and remain the sole and exclusive property thereof. All such property shall be delivered to Bitterstrawberry.com by Affiliate, immediately upon demand, or destroyed, as may be requested.
6.2 Bitterstrawberry.com owns all copyrights, trademarks, intellectual property rights, know-how or any other rights connected to the services, websites or software necessary for the execution of this Agreement.
7.1 The Affiliate is granted a revocable, non-transferable, royalty free license to display links to websites and services of Bitterstrawberry.com for the strictly limited purpose of promoting Bitterstrawberry.com´s websites and services and subject to the terms and conditions of this Agreement.
7.2 The license also comprises the use of Bitterstrawberry.com´s logos, trade names and other proprietary identifying material solely in connection with and strictly limited to the purpose of promoting Bitterstrawberry.com´s websites and services and subject to the terms and conditions of this Agreement.
7.3 All rights granted pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement.
The Affiliate shall not for any reason, carry on, or be engaged in, or be concerned with, or interested in, or employed by, any person or company engaged in or concerned with or interested in a business which is the same as, or substantially similar to, or in competition with, the businesses of Bitterstrawberry.com.
The Affiliate commits himself, for the duration of the contractual relationship to treat the contents of this Agreement and all information obtained relating to the execution of this Agreement as confidential, and not to make this accessible to any third parties, except where this is required for the proper execution of the Agreement, which includes the approval of this Agreement by the supervisory boards of the contracting parties, or in connection with the acquisition of stock/shares in one of the contracting parties by seriously interested parties, and/or where this is required for obtaining authorizations/approvals from the authorities, or where this takes place in the scope of the normal reporting procedures within the affiliated group of companies and the affiliates are bound to confidentiality.
This does not apply to information that is or subsequently becomes public knowledge, or where the contracting parties are obliged to disclose the information contained in the Agreement by applicable legislation or other regulations. Insofar as information is passed on to third parties, this passing on of information is to be limited to the minimum elements/facts required in terms of the previously mentioned exceptions, and these third parties are to commit themselves in writing to maintaining the confidentiality of the information received.
10. Limitation of Lability
BITTERSTRAWBERRY.COM SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES TO THE AFFILIATE OR ANY PERSON (INCLUDING WITHOUT LIMITATION, ANY PAYMENT FOR LOST REVENUES, LOST DATA, LOST PROFITS OR LOSS OF GOODWILL), WHETHER FORESEEABLE OR NOT, FOR ANY CAUSE WHATSOEVER WHETHER OR NOT CAUSED BY BITTERSTRAWBERRY.COM’S NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EVEN IF AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
UNDER NO CIRCUMSTANCES SHALL ANY PROJECTIONS OR FORECASTS BY Bitterstrawberry.com BE BINDING AS COMMITMENTS OR PROMISES BY BITTERSTRAWBERRY.COM AND/OR GIVE RISE TO ANY LIABILITY.
Affiliate agrees to fully indemnify, defend and hold Bitterstrawberry.com , including any of their respective affiliates, officers, directors, partners, employees, and agents, harmless from and against any proceeding, action or claim that may arise out of or relate to affiliate´s involvement in Bitterstrawberry.com´s Affiliate program or any breach of this Agreement by Affiliate, including, but not limited to, any and all damages, claims, losses and/or expenses (including reasonable attorneys’ fees and costs) incurred by Bitterstrawberry.com arising out of any such proceeding, action or claim. Bitterstrawberry.com shall have the right to defend any action through counsel of its own choosing at Affiliate´s sole expense.
12. FORCE MAJEUR
Bitterstrawberry.com shall not be liable or responsible for any failure or inability to perform or delay caused by reason of one or more so called “force majeure” contingencies (e.g. any act of God, fire, earthquake, hurricane, natural disaster, strike, labor disturbance, civil commotion, acts of Government, any Law, action of any labor union or association affecting a Party or the industry within which the Party is engaged, delays in the delivery of materials or supplies, terrorist attack, any act of sabotage, etc.). The impacted obligation shall be extended hereunder for a period equal to the duration of any such contingencies to the extent that such contingencies interfere with or disrupt a Party’s exercise of its Rights hereunder.
13.1 All changes or amendments to this Agreement must be in writing. This requirement of the written form also applies to notifications, ancillary agreements and subsequent contractual changes, except where this is specifically stipulated otherwise for individual components. The waiver of the written form requirement must be put in writing. Insofar as the Agreement does not explicitly stipulate exceptions for individual components and statements of intent, a notification by means of telecommunication does not satisfy the requirement of the written form.
13.2 There are no ancillary verbal agreements.
13.3 In the event of the Affiliate becoming bankrupt or being placed in liquidation, whether voluntary or compulsory or reaching a compromise with its creditors or failing to satisfy any judgment debt, Bitterstrawberry.com shall be entitled, to cancel this Agreement with immediate effect without prejudice to those rights and obligations accrued prior to such bankruptcy.
13.4 The Parties hereby agree that no agency, joint venture or partnership is created thereby, that no franchise agreement is created hereby and that neither Party shall allege in any proceedings that a franchise agreement is created by this Agreement or exists between the Parties, and that neither Party shall incur obligations in the name of the other party without the other Party’s prior written consent. The Parties shall act and at all times shall be independent contractors.
13.5 All notices or other communications which are required or permitted hereunder shall be in writing and shall be sufficiently given if (a) delivered personally or (b) sent by registered or certified mail, postage prepaid, or (c) sent by overnight courier with a nationally recognized courier, or (d) sent via e-mail with confirmation of receipt in writing in any of the foregoing manners. If sent by registered mail, postage prepaid, notice shall be considered delivered three (3) business days after the date of mailing, and if sent by any other means set forth above, notice shall be considered delivered upon receipt thereof. Either Party may by notice to the other Party change address to which notice or other communications to be delivered or mailed.
13.6 The section and paragraph headings herein are for convenience only and shall not be interpreted to limit or affect in any way the meaning of the language contained herein.
13.7 This Agreement shall be binding upon the Parties hereto and their respective successors and permitted assigns.
13.8 Each person executing this Agreement in a representative capacity warrants that he or she is duly authorized by the person or entity he or she represents to enter into this Agreement on behalf of that person or entity.
13.9 This Agreement is personal and may not be assigned to any third parties without the prior written consent of the other party.
13.10 This Agreement is subject to the laws of Switzerland, with exclusion of the United Nations Convention on Contracts for the international sale of goods. This also applies to all sundry claims that are related to this contract, in particular those arising from tortious acts.
13.11 Jurisdiction for all court cases arising from this contract is Bitterstrawberry.com´s main place of business.
13.12 In the event that individual provisions of this Agreement are wholly or partially ineffective or unfeasible, or that they subsequently lose their legal validity or become unfeasible, the validity of the remaining provisions of this Agreement will remain unaffected. In the case of the invalidity of a provision of this Agreement, the parties agree to replace this provision by a provision that most closely resembles the economic/commercial intention of the invalid provision. The same holds true should a loophole be identified in the Agreement. The contracting parties will replace the invalid provision or loophole immediately with a valid provision.