Terms & Conditions

Terms And Conditions For SmartShoppingAds

INTRODUCTION:

1&1&1 Internet AG, Elgendorfer Strasse 57, D56410 Montabur, Germany (hereafter called “1&1”) provides on the internet under the domain name www.SmartShoppingAds.de a platform (hereafter “Platform” or “SmartShoppingAds”) which allows registered members (hereafter “Publishers”) to integrate advertisements on their website and also allows them to participate in affiliate programmes of 1&1’s customers (hereafter “Advertiser”).

SmartShoppingAds provides media services to support advertisers’ on-line marketing of goods and services based on the successful placing of orders. Registration on the Platform and its use is free of charge for the Publisher.

Access by the Publisher to SmartShoppingAds is subject to these terms and conditions which also regulate the Publisher’s duties to Advertisers.

1. SCOPE OF APPLICATION
   • 1.1 All supplies, services, offers and agreements between 1&1 and the Publisher in connection with SmartShoppingAds are subject to the following terms and conditions. In the event of any conflict with the Publisher’s terms and conditions, these terms and conditions shall prevail unless otherwise expressly agreed between 1&1 and the Publisher. Any statement to the contrary made by the Publisher is hereby rejected.
   • 1.2 Unless otherwise agreed between 1&1 and the Publisher, any amendments or additions to the Agreement shall only be effective if in writing.
   • 1.3 1&1’s employees are not empowered to make any verbal promises or agreements or to give any verbal assurances.
2. DEFINITIONS
   • In these terms and conditions and in all agreements concluded between the Publisher and 1&1 the following terms shall have the following meanings:
   • Account: an account providing access to SmartShoppingAds following the Publisher’s registration on the Platform with the Publisher’s full and accurate registration details including the name of the Publisher’s main internet domain, the relevant contents and category of the Publisher Website.
   • Valid Click: a click is valid when a User voluntarily and deliberately clicks on a hyperlink for the chosen advertisement or the Advertiser’s 1&1 affiliate programme on the Publisher Website which directs the User to an Advertiser Website. Clicks from the same User that are repeated or follow each other quickly – even on different hyperlinks – are not valid and are disregarded. Clicks which are not voluntary e.g. the sending of an SMS message, participation in a game or use of clicks in a paid email system, shall not be included without 1&1’s prior written agreement. Without this agreement, such clicks will not be included as valid. Valid Clicks will be recorded and verified using 1&1’s transaction system and estimated by 1&1.
   • Valid Lead: a deliberate and voluntary specific action carried out by a User on an Advertiser Website following a Valid Click. Valid Leads will be determined or estimated in the same way as Valid Clicks and will be recorded and verified by the Advertiser’s system and determined by 1&1.
   • Valid Sale: a voluntary and deliberate purchase of a product or the ordering of a service for a price or fee by a User from an Advertiser Website following a Valid Click. Valid Sales are determined in the same way as Valid Clicks and will be recorded and verified by the Advertiser’s system and determined by 1&1.
   • Hyperlink: an element made available to the Publisher by SmartShoppingAds which the Publisher makes available on his Website and which references an Advertiser Website and which is used by the Publisher solely in this unaltered form.
   • Pay-Per-Click: the use of a Hyperlink on the Publisher Website entitles 1&1 and subsequently the Publisher to remuneration by directing the User to an Advertiser Website.
   • Pay-Per-Lead: the use of a Hyperlink on the Publisher Website entitles 1&1 and subsequently the Publisher to remuneration by directing the User to an Advertiser Website and the generation of a Lead (a deliberate and voluntary specific action carried out by a User on an Advertiser Website).
   • Pay-Per-Sale: the use of a Hyperlink on the Publisher Website entitles 1&1 and subsequently the Publisher to remuneration by directing the User to an Advertiser Website resulting in the sale of goods or services by the Advertiser.
   • User: any natural person who accesses the Publisher Website or the Advertiser Website voluntarily and deliberately, i.e. without any force or deception and without receiving any payment from the Publisher or from a third party except from 1&1 itself within the scope of a bonus system.
   • Publisher Website: the internet website(s) owned and/or operated by the Publisher that the Publisher registers on its account from time to time.
   • Publisher Website: the internet websites owned and/or operated by Advertisers operating at specifically designated URLs.
3. SIGNING ON FOR SMARTSHOPPINGADS
   • 3.1 When signing on for an Account the Publisher accepts these terms and conditions.
   • 3.2 The Publisher warrants to 1&1 and to the Advertiser that the details and personal information it provides are complete and accurate. The Publisher shall keep its registration data and information relating to the Account up-to-date at all times. The Publisher is to ensure that the same personal information is given when registering for different accounts.
   • 3.3 The Publisher must ensure that any web pages on a Publisher Website are available in the permitted language. 1&1 shall be entitled to refuse acceptance of any application for an Account without giving notification that it has done so.
   • 3.4 Neither registration for an account, confirmation by 1&1 nor the sending of access data by email shall give rise to any contractual relationship between 1&1 and the Publisher. The Publisher will receive initially with the Account the opportunity to apply to join an Advertiser’s affiliate programme.
   • 3.5 1&1&1 reserves the right to refuse to accept registration by a Publisher without giving reasons.
4. OFFER AND CONCLUDING OF CONTRACT
   • 4.1 Individual contracts will be entered into by 1&1 and the Publisher for the provision of services to Advertisers for online sales of goods and services based upon success rates which will be subject to these terms and conditions and the conditions of the relevant affiliate programme.
   • 4.2 The Publisher makes an application to 1&1 via the Platform and using his Account to participate in an affiliate programme using the Publisher Website. The Publisher’s offer cannot be qualified by any qualifications or reservations which deviate from the conditions of the affiliate programme. The Publisher’s application will be binding on him for a period of four weeks from the submission of his application. 1&1 shall be at liberty to accept the application within this period. Otherwise the application shall be deemed to be declined.
   • 4.3 Acceptance of the offer will be confirmed by the supply of the advertising material for the relevant programme. The offer will be accepted by 1&1’s acceptance of the application for the particular affiliate programme and will be based exclusively on the conditions given on the Platform. 1&1 is entitled either itself or via the Advertiser to decline the Publisher’s application for the affiliate programme without giving reasons. The Publisher shall have no claim against 1&1 in this respect.
   • 4.4 1&1 and the Advertiser shall have the exclusive right to select the dealers, on-line shops, manufacturers and other service providers and any other details contained in the advertisements.
   • 4.5 By the acceptance of the offer, the Publisher will become entitled but not obliged to provide services to the Advertiser within the scope of these terms and conditions and the conditions of the relevant affiliate programme. 1&1 shall have no claim against the Publisher for performance of the agreement so reached. Where, however, the Publisher provides the services, these are to be provided in accordance with the Contract and will be paid for appropriately.
5. PROVISION OF SERVICES
   • 5.1 1&1 is entitled to develop SmartShoppingAds from time to time and to adapt the service to technical developments.
   • 5.2 1&1 is also entitled to assign the provision of the service or any part of it to third parties.
6. Remuneration
   • 6.1 1&1 will enable the Publisher to participate in Pay-Per-Click affiliate programmes, Pay-Per-Lead affiliate programmes, Pay-Per-Sale affiliate programmes or a combination of any of the aforementioned programmes. The Publisher has no claim to the provision of any particular type of programme. The Publisher is only entitled to be paid in respect of Valid Clicks, Valid Leads or Valid Sales generated on his account in accordance with the conditions of the relevant affiliate programme or these terms and conditions.
   • 6.2 In the case of Pay-Per-Click affiliate programmes the Publisher will be credited a fixed amount for each Valid Click. 1&1 publishes statistics on the Platform showing on a day to day basis how much has been credited to the Publisher on his account.
   • 6.3 No payment will be made for clicks unless they are generated via a hyperlink and/or on the advertiser website. Nor will payment be made for any clicks generated automatically via technical devices (for example, through click generators) or initiated through force or deception.
   • 6.4 All Valid Clicks will be credited to the Publisher’s Account with 1&1 following daily verification. Any such crediting of the Publisher’s Account shall not be deemed an acknowledgement that the recorded clicks are Valid Clicks.
   • 6.5 Conditions 6.2 to 6.3 shall apply accordingly for payment of the Publisher in connection with Pay-Per-Lead affiliate programmes, Pay-Per-Sale affiliate programmes or a combination of any of the aforementioned programmes. All leads or sales will be credited once the conditions of the relevant affiliate programme have been complied with. Any crediting to the Publisher’s Account is not to be taken as an acknowledgement that all the conditions of the affiliate programme have been complied with or that the recorded leads or sales are Valid Leads or Valid Sales. Pay-Per-Sale affiliate programmes with remuneration based on a percentage will be paid for according to the net sale value of the goods or services (excluding any ancillary services and value added tax).
7. Payment Method
   • 7.1 1&1 will inform the Publisher on a day-to-day basis with details of the remuneration due in the personal configuration menu of the Publisher. This amount will be payed via credit to the bank account specified by the Publisher. Therefore the publisher has the possibility to request the credit of the remuneration of the respective month from 1&1 until the 9th day of the month following the month in question at the latest. 1&1 will pay this amount at the latest on the 15th day following request of the credit to the account specified by the Publisher provided that the remuneration for the month concerned is at least 50 pounds net. If it is less than 50 pounds net, 1&1 will pay the Publisher when all the credits on the Publisher’s Account total at least 50 pounds net and the Publisher has requested the credit of the remuneration. The Publisher’s credit on his account will not attract interest.
   • 7.2 1&1 will pay the remuneration if necessary without any final determination as to whether the credits on the Publisher’s Account are based on Valid Clicks, Valid Leads or Valid Sales in accordance with the conditions of the affiliate programme or these terms and conditions. If a transaction was generated as a result of a manipulation or deception or a contravention of the conditions of the affiliate programme or these terms and conditions or for some other reason it transpires that a transaction is finally determined as not being Valid 1&1 is entitled to deduct the fee from the Publisher’s Account within a period of 12 weeks after any payment has been made. Alternatively, 1&1 may request the Publisher to return the amount paid. 1&1 remains entitled to demand repayment after this period has expired if 1&1 demonstrates that the payment to the Publisher was not made as a result of a Valid Click, Lead or Sale.
   • 7.3. All Publishers will be paid from the amount held by 1&1 to the credit of the Advertiser for the relevant affiliate programme. 1&1 will require the Advertiser to ensure that there is a sufficient amount held on account to cover the Publisher’s remuneration based on the remuneration paid for the previous month and/or the estimated remuneration. If the amount held to the Advertiser’s credit is insufficient to make payment in accordance with Clause 7.4. 1&1 will pay all the Publisher’s remuneration for the relevant affiliate programme on a pro rata basis. If the Advertiser has not ensured that an amount is held on account to cover all remuneration due to the Publisher within a period of 2 weeks following an appropriate request by 1&1, the Publisher is entitled to claim payment from the Advertiser and is required to do so before making any claim against 1&1. In this case 1&1 will assign to the Publisher if requested to do so the claims which it has against the Advertiser for the amount due to the Publisher. The Publisher is not required to make a claim against the Advertiser if to do so would clearly serve no purpose as a result of the Advertiser’s lack of funds.
8. Duties of the Publisher towards 1&1 and the Advertiser
   • 8.1 The Publisher is required to take all technical steps to ensure that his website and advertising including anything which appears in search engines, indexes or link lists belonging to third parties are set up and presented so that only Valid Clicks, Valid Leads or Valid Sales are generated by Users on the Advertiser Website.
   • 8.2 1&1 will make available to the Publisher the necessary hyperlinks including the URL of the relevant page of the Advertiser Website necessary for participation in an affiliate programme. The Publisher may not alter the HTML code or banner which is made available by the Advertiser to 1&1. The advertisements may only be placed on the domains within the customer’s account with the Publisher used for SmartShoppingAds. The use of the advertisements is only permitted in connection with the participation in an affiliate programme. The passing of information or forwarding of advertisements to third parties is prohibited.
   • 8.3 The use of names, protected brands and trademarks or the company names or logos of 1&1 or any third party – in particular of the Advertiser – is only permitted if the Publisher has been given written permission by the relevant right-holder. The Publisher agrees to set up the Publisher Website in such a way as to ensure the protection of all of the intellectual property rights of the right-holder, including copyrights and to ensure that the Publisher Website complies with all applicable laws and without prejudice to the generality of the foregoing the Publisher shall ensure that it complies at all times with the Data Protection Act 1998 in all respects.
   • 8.4 The advertisements made available may not be used on websites having no content, nor in pop-ups or pop-unders nor in emails. The Publisher may maintain a maximum of five advertisement blocks on the Publisher Website. Other elements must not cover any part of the advertisement.
   • 8.5 The Publisher shall ensure that his website is set up to comply with all consumer protection legislation and that no representations of violence, sexually explicit or pornographic contents or discriminatory or defamatory statements or any representation concerning race gender religion nationality disability sexual preference or age are permitted on the Publisher Website and/or in the context of participation in a 1&1 affiliate programme. The Publisher’s Website must be set up so as not to compromise either the reputation or the image of the goods or services or the brand or the business of 1&1 or the Advertiser.
   • 8.6 The above provisions also apply where the Publisher directs Users via links to pages maintained by third parties.
   • 8.7 The Publisher may include at any position in his Website any number of hyperlinks to the Advertiser Website. 1&1 may however require the Publisher to alter the location of the hyperlink if it is liable to compromise either the reputation or the image of the goods or services or the brand or the business of 1&1 or the Advertiser.
   • 8.8 The Publisher is required to maintain a User account with the payment system Click&Buy.
   • 8.9 All duties imposed on the Publisher by this Clause 8 are to be taken as duties which are also owed to the relevant Advertiser.
   • 8.10 The Publisher shall comply with all applicable regulations applying to its services and advertising practices imposed by the British Code of Advertising, Sales Promotion and Direct Marketing (CAP code) issued by the Committee of Advertising Practice and to be found at www.CAP.org.uk/cap.
9. Account and Term of Contract
   • 9.1 The Publisher’s Account for the 1&1 Platform will be maintained for an unspecified period.
   • 9.2 The contract between 1&1 and the Publisher for the provision of services for Advertisers for the online sale of goods and services based upon success rates will be concluded for the period of the calendar week in which the contract is concluded subject to a maximum period equal to the duration of the affiliate programme. It will be automatically renewed for the period of a further calendar week subject to a maximum period equal to the duration of the affiliate programme unless it is terminated on one day’s notice expiring at close of business of the day following receipt of the notice.
   • 9.3 The notice required is to be in text form. 1&1 is also entitled to give notice in any other form.
10. Deactivation of the Account and Termination
    • 10.1 1&1 is entitled to deactivate the Publisher’s Account and to notify the Publisher of this if the Publisher has not participated in an affiliate programme or earned any fees from such participation for a period of twelve months.
    • 10.2 1&1 is entitled to terminate all contracts for the participation of the Publisher in affiliate programmes on one day’s notice to expire at the end of any calendar week and to deactivate the Publisher’s Account if the Publisher has not requested payment of credit in accordance with Clause 7 for a period of twelve months.
    • 10.3 The Publisher and 1&1 shall remain at liberty to determine the contract without notice in appropriate circumstances. In particular 1&1 is entitled to terminate all contracts for the provision of the Publishers’s services within the scope of the affiliate programmes without notice and to deactivate the Publisher’s Account in cases of material or persistent breaches by the Publisher of any of these terms and conditions and in particular the provisions contained in Clause 8.
    • 10.4 Any termination in accordance with these provisions must be in writing. 1&1 is also entitled to terminate any contract by any other means. Deactivation of the Publisher’s Account may be notified at any time by any means.
11. Consequences of Termination
    • 11.1 If the Publisher’s Account is deactivated a statement will be issued showing any existing credit. Any credit falling below the threshold referred to in Clause 7.1 shall be forfeit.
    • 11.2 The Publisher is required following termination to remove from all websites all hyperlinks to the relevant affiliate programme. No remuneration shall be paid with effect from the termination regardless of whether the Publisher has removed the relevant hyperlink from the websites.
    • 11.3 Where the Publisher’s Account has been deactivated in accordance with Clause 9 or Clause 10 the Publisher is not entitled to make a new application for the 1&1 Platform. Any contravention of this provision will make the Publisher liable to 1&1 in damages. Any Publisher credit will be forfeit.
12. Liability and Indemnity
    • 12.1 The Publisher agrees to indemnify and keep indemnified 1&1 from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with this agreement.
    • 12.2 1&1 shall have no liability to the Publisher for any loss, damage, costs, expenses or other claims for compensation arising from any material supplied by the Publisher to 1&1 for the purpose of this agreement or instructions supplied by the Publisher which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Publisher.
    • 12.3 Except in respect of death or personal injury caused by 1&1’s negligence, or as expressly provided in this agreement, 1&1 shall not be liable to the Publisher by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of 1&1, its servants or agents or otherwise) which arise out of or in connection with the provision of the services to the Publisher pursuant to this agreement, and the entire liability of 1&1 under or in connection with this agreement shall not exceed the amount of 1&1’s charges for the provision of the said services, except as expressly provided in this agreement.
    • 12.4 1&1 shall not be liable to the Publisher or be deemed to be in breach of this agreement by reason of any delay in performing, or any failure to perform, any of 1&1’s obligations in relation to the said services, if the delay or failure was due to any cause beyond 1&1’s reasonable control.
    • 12.5 The statutory rights of consumers shall remain unaffected by the provisions of this agreement.
13. Amendments
    • 13.1 If 1&1 proposes to amend its terms and conditions, 1&1 will notify the Publisher of its intention. If the Publisher does not object to the amendment in the correct manner and within the specified period, the amended terms and conditions will take effect at the beginning of the new calendar week following the expiry of two calendar weeks after receipt of the notification. The Publisher’s objection will only be valid if it is in writing and is received by 1&1 within one week following receipt of the notification. 1&1 will notify the Publisher as to the possibility of raising an objection giving details of how an objection is to be made and the relevant time limit and the consequences of not complying with these requirements.
    • 13.2 The payment due in respect of all affiliate programmes is subject to change. All affiliate programmes allow the Advertiser complete discretion in amending the remuneration to be paid by 1&1.
14. Miscellaneous
    • 14.1 This agreement shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales over any claim or matter arising under or in connection with this agreement.
    • 14.2 If any provision of this agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this agreement which shall remain in full force and effect.
    • 14.3 If any provision of this agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.
    • 14.4 The parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.

November 2009