Algemene Voorwaarden Publishers
GENERAL TERMS AND CONDITIONS AFFILIATE PROGRAM
These are the general terms and conditions of Wuzzon BV having its offices at Nieuwezijds Voorburgwal 314 (1012 RV) Amsterdam, the Netherlands, Chamber of Commerce number: 32121709. By submitting the Affiliate program application from our website and/or by using our Affiliate program, You signify Your acceptance of the terms and conditions set out herein.
These Terms and Conditions are effective from 5 February 2015 and replace all previously published versions of Wuzzon BV.
Article 1 Definitions
In these Terms and Conditions the terms set out below have the following meaning:
a person or business wishing to promote his brand, product(s) and/or service(s) by means of an Offer through the Affiliate Program;
a website of the Adviser to which the Offer and the Link is connected;
Affiliate / You:
the company or natural person (older than 18 years) acting in the course of a business or profession, with whom Wuzzon has entered into an Agreement or on behalf of whom the juristic act based upon which the Services will be delivered is or will be executed;
the platform used by Wuzzon in order to provide the Service;
the Affiliate Program agreement on the basis of which Wuzzon provides its Services;
the fee agreed upon in writing for each Qualified Action;
a hyperlink to be included in the Offer that (i) will serve to identify You as a member of the Affiliate Program and (ii) will establish a link from your Media to the Advertiser Website;
the websites or displays owned or controlled by Affiliate, emails sent by Affiliate and clearly identified as coming from Affiliate or its online advertisements;
the network of Affiliate with Third Party Affiliates;
graphic, textual and creative material with regard to brands, products or services from Advertiser which you may display on your Media and which will include a Link;
an individual person who (i) accesses the Advertiser Website via the Link, where the Link is the last link to such Advertiser Website, (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 Wuzzon and (v) is not later determined by Wuzzon to be fraudulent, incomplete, unqualified or a duplicate;
the service of Wuzzon as described on the Website, which includes the provision of the Affiliate Program, the Offer and the Links and associated software and materials;
a list with email addresses of persons who have indicated that they do not wish to receive emails through the Affiliate program and / or from a certain Advertiser or Affiliate;
Terms and Conditions:
these general terms and conditions for the Affiliate Program, irrespective of the form in which these general terms and conditions are presented to the User;
Third Party Affiliate:
an affiliate of Affiliate;
the website of Wuzzon.
Article 2 General conditions
These Terms and Conditions apply to and form part of all offers, proposals, agreements and other juristic acts, either made orally, in writing, electronic or in any other form, with respect to the provision of the Services by Wuzzon. The Terms and Conditions shall also apply to all future transactions between the parties to the contract without requiring any reference thereto again. The purchasing or other terms and conditions of Affiliate are expressly rejected Wuzzon and are not applicable.
Deviations from the Terms and Conditions shall only apply if and to the extent that they have been explicitly agreed upon in writing between parties
If any provision of these Terms and Conditions is null and void or annulled, the other provisions of these Terms and Conditions shall remain in full force. Parties shall negotiate a new provision that shall approximate the contents and the scope of the original provision as closely as possible.
Offers, quotations and prices shall not be binding on Wuzzon and shall be valid only as an invitation to You to place an order, unless explicitly otherwise stated in writing.
An agreement shall have been concluded as soon as Wuzzon accepts Your order or application by e-mail or written confirmation. Wuzzon will review Your application, and will notify You of Your acceptance or rejection, generally within two (2) business days. Wuzzon has the right to accept or reject Your application at its sole discretion for any reason, for example in the event that the information provided by You is untrue, inaccurate or incomplete.
Wuzzon reserves the right to modify these General Conditions at any time by providing such revised General Conditions to You by e-mail or by publishing the revised General Conditions on its website. Your continue use of the Services shall constitute Your acceptance to be bound by the revised terms and conditions.
You agree to always cooperate with the performance of the Agreement and that You will timely provide all data and information required by Wuzzon in order to supply the Services. This includes, but is not limited to, all company details (such as contact data, registered seat and Chamber of Commerce registration and VAT) and all information with respect to the Media used by Affiliate or information that proofs Affiliate’s compliance with the relevant legislation. Wuzzon is at all times entitled to postpone provision of Service (including the payment) until it has received the requested data and information.You guarantee that all information provided by to Wuzzon is correct, complete and up-to-date. You must immediately inform Wuzzon of any changes to the information or update its personal information provided on the Website.
Article 3 Services
Wuzzon offers Affiliates facilities (the Affiliate program) to use and publish an Offer in their Media and to receive a payment in the event that the Link in such Offer leads to a Qualified Action.
Wuzzon makes every reasonable effort to ensure that all Offers, Links and other information and materials made available through its Service is accurate. However the Service and all Offers and Links and other information and materials provided by Wuzzon under the Agreement is provided on an ‘as is’ and ‘as available’. Wuzzon makes no representation or endorsement about the suitability, timeliness or accuracy of the Service, the Offers, Links and other information. Wuzzon disclaims all warranties, either express or implied, including but not limited to, warranties of condition, quality, fitness for a particular purpose and non-infringement of third party rights. In particular does Wuzzon not guarantee that;
a) a certain number of Qualified Actions is generated through the Service;
b) third parties will use the Services, including the Link and the Advertiser Website in a legitimate manner;
c) the Service, including the Offer, the Link and Advertiser Websites, will be uninterrupted and error free, and free from viruses, faults or defects, or that defects can be remedied;
d) no data will be lost;
e) the Offer, the Link and the content of the Advertiser Websites is legal, and that Advertisers will meet their payment obligations and other obligations;
f) the use of the Service and the Advertiser Websites and products and services offered by the Advertiser is legitimate.
The Offers and other information with respect to the Advertiser and its products and services come from third parties (the Advertiser). These Advertisers are liable for the suitability, timeliness or accuracy of this information. Additional conditions may apply to some Offers. In the event that such is the case, the additional conditions will be published in the Offer.
Wuzzon shall endeavour to provide the Services with minimum disruptions. However Wuzzon cannot guarantee that the Services will always function without disruptions, delay or other imperfections.
Wuzzon is entitled, without any liability, to refuse, limit, suspend and/or interrupt the Services and/or the use of one or more Offers for any reason whatsoever, at its own discretion and without any notice to User. Furthermore, Wuzzon may change the technical features of the Service in order to keep pace with the latest demands and technological developments.
Article 4 Your use of the Affiliate Program and the Offers and Links
In connection with our Services You will receive a user name and password to enter into the Affiliate Program. They must be kept safe with due care and should not be given to third parties. In the event that abuse or theft of the account is presumed, You must inform Wuzzon immediately of this so that it can take suitable measures.
You are liable for all the use that is made of the Service via Your account. Wuzzon is not liable for losses and/or damage resulting from abuse or theft of the user name and/or password.
During the term of the Agreement and subject to the terms of these General Conditions, Wuzzon grants You a limited, personal, revocable, non-exclusive, non-sub licensable, non-assignable, license to use the Offer, Link and any associated content and the names of the Advertiser Website(s), solely in Your Media and only insofar necessary for the promotion of the Advertiser’s products and services. Wuzzon will make the Offer available to Your via the Affiliate Program. You will always observe all of Wuzzon’s instructions, directions and regulations, and make no changes to the Offer, the Link, content or names in any way.
You are liable and responsible for the development, operation, maintenance of, and all content on or linked to, Your Media. You ensure that all materials posted on Your Media or otherwise used in connection with the Affiliate 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), contains profanity or otherwise contains materials that Wuzzon informs You that it considers objectionable (collectively, "Objectionable Content").
You will not make any representations, warranties or other statements concerning Wuzzon, the Advertiser or any of their respective products or services, except as expressly authorized herein.
You will make sure that Your Media does not copy or resemble the look and feel of the Advertiser Website or create the impression that Your Media is endorsed by Wuzzon or Advertiser or a part of the Advertiser Website, without prior written permission from us.
You will always comply with all (i) reasonable instructions of Wuzzon, (ii) obligations, requirements and restrictions under this Agreement; (ii) laws, rules and regulations as they relate to Your business, Your Media or Your use of the Content and the Links; (iii) terms, conditions, guidelines and policies of any third party services used by You in connection with the Affiliate Program, including but not limited to, email providers, social networking services and ad networks. You guarantee that Your use of the Service does not violate the applicable legislation and regulations, including, but not limited to the Telecommunicatiewet (Dutch Telecommunications Act) and the Wet Bescherming Persoonsgegevens (Dutch Personal Data Protection Act), or is otherwise unlawful.
You are not entitled to place Wuzzon ads or Offers on any online auction platform (i.e. eBay, Amazon, etc).
Article 5 Your use of the Offers in e-mail campaigns
Only after Wuzzon’s prior written approval, are You entitled to include the Offer in email campaigns. In such event the additional terms in this article 5 shall apply.
For all email campaigns, You must download the Suppression List from the Website. You will filter Your email list by removing any entries appearing on the Suppression List and will only send emails to the remaining addresses on Your email list.
Wuzzon will provide an opt-out method in all Offers, however, if any opt-out requests come directly to You, You shall immediately forward them to Wuzzon at email address: [email protected]
Your emails containing the Offer may not include any content other than the Offer, except as required by applicable law.
You agree that failure to download the Suppression List and remove all emails from the database before mailing may result in a material breach of the Agreement and an illegal act and therefore to Commission withholdings, removal or suspension from all or part of the Affiliate Program, possible legal action and any other rights or remedies available to Wuzzon pursuant to this Agreement or otherwise.
You are not entitled to use the Suppression List for any other purpose then provided in this article 5 and for example will not mail, market or contact any person or email address inserted on the Suppression List. Doing so may result in a material breach and Commission withholdings, removal or suspension from the Affiliate Program, possible legal action and any other rights or remedies available to Wuzzon pursuant to this Agreement or otherwise.
Article 6 Your use of the Offer in advertising or Affiliate network campaigns
You are not entitled to associate the Offer with or position the Offer on chat rooms or bulletin boards unless otherwise agreed by Wuzzon in writing. Any pop-ups/unders used for the Affiliate Program shall be clearly identified as Affiliate served in the title bar of the window and any client-side ad serving software used by Affiliate shall only have been installed on an end-user's computer if the function of the software is clearly disclosed to end-users and if these end-users have given their consent prior to installation, the installation is pursuant to an affirmatively accepted and plain-english end user license agreement and the software be easily removed according to generally accepted methods.
If You maintain Your own Network for access and use by Third Party Affiliates, You agree that You will expressly forbid any Third Party Affiliate to modify the Offer or the Link in any way. You further agree to maintain Your Network according to the highest industry standards. You shall not permit any party to be a Third Party Affiliate whose Website or business model involves content containing Objectionable Content. All Third Party Affiliates must be in good standing with Affiliate. You must require and confirm that all Third Party Affiliates affirmatively accept, through verifiable means, this General terms and Conditions prior to obtaining access to the Offers. You shall promptly terminate any Third Party Affiliate who takes, or could reasonably be expected to take, any action that violates these General Terms and Conditions.
In the event that You suspect any wrongdoing by a Third Party Affiliate with respect to the Offers, You shall promptly disclose to Wuzzon the identity and contact information for such Third Party Affiliate. You shall promptly remove such Third Party Affiliate from the Affiliate Program and terminate its access to future Offers of Wuzzon upon written notice from Wuzzon. You will always remain liable for all acts or omissions of any Third Party Affiliate.
Article 7 Commission
Wuzzon will pay You Commission for each Qualified Action. Wuzzon will pay You any Commissions earned monthly, provided that balance of Your account is greater than € 100. Accounts with a balance of less than € 100 will roll over to the next month, and will continue to roll over monthly until € 100 is reached.
Wuzzon reserves the right to charge back to Your account any previously paid Qualified Actions that are later determined to have not met the requirements to be a Qualified Action.
Payment for Commissions is dependent upon Advertisers making their payments to Wuzzon, and therefore, You agree that Wuzzon shall only be liable to You for the payment of the Commission to the extent that Wuzzon has received such payment from the Advertiser. You hereby release Wuzzon from any claim for Commissions if Wuzzon has not received such funds from the Advertiser.
Unless otherwise agreed upon in writing, Wuzzon shall automatically generate an invoice on Your behalf for all Commissions payable under this Agreement and shall remit payment to Affiliate based upon that invoice. All tracking of Links and determinations of Qualified Actions and Commissions shall be made by Wuzzon in its sole discretion. In the event that You disputes in good faith any portion of an invoice, You must submit that dispute to Wuzzon in writing and in sufficient detail within thirty (30) days of the date on the invoice. If You don’t dispute the invoice as set forth herein, then You agree that You irrevocably waive any claims based upon that invoice. In the event that You also track Qualified Actions and You claim a discrepancy, You must provide Wuzzon with Your reports within three (3) days after 30th day of the calendar month, and if Wuzzon's and Your reported statistics vary by more than 10% and Wuzzon reasonably determines that You have used generally accepted industry methods to track Qualified Actions, then both Wuzzon and You agree to make a good faith effort to arrive at a reconciliation. If the parties are unable to arrive at a reconciliation, then Wuzzon's numbers shall govern.
If You have an outstanding balance due to Wuzzon under this Agreement or any other agreement between You and Wuzzon, whether or not related to the Affiliate Program, You agree that Wuzzon may offset any such amounts due to Wuzzon from amounts payable to You under this Agreement.
Article 8 Spam and Fraud
You must strictly comply with the Dutch Telecommunications Act, the Dutch Personal Data Protection Act or other regulations and will not send electronic messages in violation of Article 11.7 of the Dutch Telecommunications Act, or otherwise act in conflict with the applicable legislation. All emails sent in connection with the Affiliate Program must include the appropriate party's opt-out link. From time to time, Wuzzon may request - prior to You sending emails containing linking or referencing the Affiliate Program, that You submit the final version of Your email to Wuzzon for approval by sending it to Your Wuzzon representative and upon receiving written approval from Wuzzon of Your email the email may be transmitted to third parties.
It is solely Your obligation to ensure that the email complies with the legislation. You agree not to rely upon Wuzzon's approval of Your email for compliance with the legislation, or assert any claim that You are in compliance with the legislation based upon Wuzzon's approval.
You are expressly prohibited from using any persons, means, devices or arrangements to commit fraud, violate any applicable law, interfere with other affiliates or falsify information in connection with referrals through the Links or the generation of Commissions or exceed Your permitted access to the Affiliate Program. Such acts include, but are in no way limited to, using automated means to increase the number of clicks through the Links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud. Wuzzon shall make all determinations about fraudulent activity.
Article 9 Confidentiality
Except as otherwise provided in this Agreement or with the consent of Wuzzon, Your agree 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 us or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by Your for any purpose other than Your participation in the Affiliate Program, except and solely to the extent that any such information is generally known or available to the public through a source other than Yours. You shall not use any information obtained from the Affiliate Program to develop, enhance or operate a service that competes with the Affiliate Program, or assist another party to do the same.
Article 10 Intellectual property rights
All intellectual property rights with regard to the Services, the Offer, the Affiliate Program and all documentation, information, software and any other materials developed by Wuzzon and/or provided to You under the Agreement shall exclusively belong to Wuzzon or its licensors. Affiliates shall only acquire the rights of use expressly granted in the Agreement and/or these Terms and Conditions and, if relevant, by law. Any other or more extensive right of Affiliates is excluded. You will not be entitled to use the trademarks, brand names, logos, trade names, designs or know-how, or any other distinctive sign of Wuzzon without its prior written consent.
You may not alter, modify, manipulate or create derivative works of the Offer, the Links or any Wuzzon graphics, creative, copy or other materials owned by, or licensed to, Wuzzon in any way. Wuzzon may revoke Your license anytime by giving Your written notice. You agree that Wuzzon may use any suggestion, comment or recommendation Your choose to provide to Wuzzon without compensation. All rights not expressly granted in this Agreement are reserved by Wuzzon.
Article 11 Termination and suspension
This Agreement shall commence on the date of our approval of Your application or registration and shall continue thereafter until terminated as provided herein. You may terminate the Agreement at any time by removing all Offers from Your Media, deleting all copies of the Offers. Wuzzon may terminate the Agreement with respect to in one or more Advertisers or with respect to this Agreement at any time and for any reason which we deem appropriate with or without prior notice to You by disabling the Offers or providing Your with a written notice, with becoming liable for any compensation.
Upon termination of the Agreement for any reason, You will immediately cease all use of and delete all Offers, plus all Wuzzon or Advertiser’s intellectual property, and will cease representing Yourself as a Wuzzon or Advertisers affiliate.
All rights to validly accrued payments, causes of action and any provisions, which by their terms are intended to survive termination, shall survive any termination.
Wuzzon is entitled to suspend its obligation under the Agreement or (partly) dissolve the Agreement without any judicial intervention being required if You breaches Your obligations under the Agreement and such breach will not be remedied in time after You have been given properly notice of default.
Article 12 Remedies and penalty
In addition to any other rights and remedies available to Wuzzon under this Agreement, Wuzzon reserves the right to delete any actions submitted through Your Links and withhold and freeze any unpaid Commissions or charge back paid Commissions to Your account if (i) Wuzzon determines that You have violated this Agreement, (ii) Wuzzon receives any complaints about Your participation in the Affiliate Program which Wuzzon 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 Affiliate 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, Wuzzon reserves the right to disclose Your identity and contact information to appropriate law enforcement or regulatory authorities or any third party that has been directly damaged by Your actions.
If You commit a breach of article 4, 5, 6 and 8 You shall owe Wuzzon, without any notice of default being required, a penalty of € 10.000, - and furthermore a penalty of € 2.500, - for each day that the breach continues, in addition to any other remedies that may be available, in law, in equity or otherwise to claim full compensation for all damages suffered by Wuzzon as a consequence of the breach.
Article 13 Representations and Warranties
You hereby represent and warrant that this Agreement constitutes Your legal, valid, and binding obligation, enforceable against You in accordance with its terms and that Your have the authority to enter into this Agreement. Subject to the other terms and conditions of this Agreement, Wuzzon represents and warrants that it shall not knowingly violate any law, rule or regulation which is applicable to Wuzzon's own business operations or Wuzzon's proprietary products or services.
Article 14 Limitation of Liability and Indemnification
Wuzzon can only be held liable for direct damages resulting from an attributable failure of its obligations under the agreement. Direct damages in this respect exclusively mean:
(a) all reasonable costs incurred by Affiliate in order to have Wuzzon’s performances meet its obligations under the Agreement;
(b) all reasonable costs incurred by Affiliate in order to prevent or limit any direct damages as meant in this article.
(c) all reasonable costs incurred by Affiliate in order to establish the nature and scope of the direct damages as meant in this article.
The direct damages as meant in this article will be limited to the fee that is or must be paid by Affiliate in the year that the damage occurs, with a maximum of € 50,- per event, whereby a series of connected incidents or events will count as one incident or event.
Any and all liability for indirect damages, including but not limited to consequential damages, loss of profit, loss of turnover and damage of reputation, is excluded.
You agree to indemnify, defend and hold harmless Wuzzon and Advertiser and their respective subsidiaries, affiliates, partners and licensors, directors, officers, employees, owners and agents against any and all claims, actions, demands, liabilities, losses, damages, judgements, 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 Affiliate herein;
(ii) any misuse by Affiliate, or by a party under the reasonable control of Affiliate or obtaining access through Affiliate, of the Offers or the Links or Wuzzon or Client intellectual property,
(ii) any act or omissions of Third Party Affiliate appointed by Affiliate;
(iv) or any claim related to Your Media, including but not limited to, the content contained on such Media (except for the Links).
Article 15. Final stipulations
This Agreement is governed by Dutch law.
Any disputes arising from the Agreement or these terms and Conditions will be submitted to the competent Court in Amsterdam