General Terms and Conditions for use of the zanox marketplace by Users
Effective from: 28.09.2011
AWIN AG, formerly known as "ZANOX AG" and listed in the commercial register with its changed name "AWIN AG" since March 2017.
ZANOX AG (“zanox”) operates and manages a network on the Internet allowing providers to advertise their goods and services (“Advertisers”), particularly by way of affiliate marketing (“zanox Network”). Advertisers make Ad Media (“Ad Media”) available to zanox by means of partner programs. An owner or operator, for example of a website (“Publisher”), may use and display such Ad Media free of charge on, for instance, websites or in e-mails and thus market the products of the Advertisers. If the advertising is successful, the Advertiser shall remunerate zanox and, for its part, zanox will pay the Publisher a success-based remuneration.
Zanox offers a supplementary facility (“zanox marketplace”) for Publishers and Advertisers (hereinafter also referred to collectively as “Customers” or “Customer”) which are registered in the zanox Network. In the zanox marketplace, Advertisers and Publishers can deposit information on themselves and their services in a “Profile”. The zanox marketplace also offers Customers the possibility of identifying and selecting those Publishers and Advertisers that are particularly attractive and suitable for them on the basis of key performance indicators. This information can be viewed and searched in the directories "zanox Publisher Directory" and "zanox Program Directory". Participation by the Customers in the zanox marketplace is governed by the marketplace T&Cs www.zanox.com/en/terms-conditions/marketplace as well as the Terms and Conditions for Publishers ("T&Cs for Publishers") and for Advertisers ("T&Cs for Advertisers") on which participation in the zanox Network is based.
Participation by the Customers in the zanox marketplace is via persons who are registered personally in the zanox marketplace as users ("Users") and who are authorized by the Customers. This registration as User in the zanox marketplace is on the basis of these T&Cs for Users.
1 General provisions
1.1 The T&Cs for Users govern the contractual relation between zanox and the User concerning registration in the zanox marketplace.
1.2 Deviating or contradictory terms and conditions of the User shall be considered invalid. This shall also be the case even if zanox has prior knowledge of such contractual conditions and still permits access to the zanox marketplace in spite of having knowledge of said contractual obligations. Divergent statements by the User in reference to his own terms and conditions are hereby contradicted and deemed invalid.
2 Subject of the agreement and zanox services
2.1 In the zanox marketplace, zanox offers interested persons the possibility of registering as User (Section 2.4 of these T&Cs for Users), in order to act for and on behalf of Customers in the zanox marketplace following corresponding authorization (Section 4 of these T&Cs for Users) and to use the functions of the zanox marketplace.
2.2 zanox endeavours to continuously develop and improve the zanox marketplace. In the course of such development, zanox may enhance, expand or slightly modify individual applications. This may include the partial or total discontinuation of individual functions so long as this does not result in any significant change of zanox’ contractual duties. zanox explicitly reserves the right to enhance functions and services, change them, if these changes are not significant, or improve them. zanox particularly reserves the right to alter a service when such a change is customary in the industry or made necessary by changes of the law or court rulings. As a matter of course, zanox will properly take into account the interests of the Users.
2.3 In the absence of any explicit agreement to the contrary, the information received by the User from zanox and/or Customers within the scope of his participation in the zanox marketplace must be used exclusively within the scope of the present contractual relation. All rights to texts, images and other content shall lie with zanox or the holder of the respective rights.
2.4 zanox is entitled to delegate part of or all of the services to be rendered to affiliate enterprises, third party service providers or vicarious agents.
3 Registration as User in the zanox marketplace and User Account
3.1 All natural persons aged 18 and above can register as Users in the zanox marketplace.
3.2 A precondition for registration is the complete and truthful provision of the data required for registration. The User must choose and determine a freely-selectable user name under which he wishes to operate in the zanox marketplace ("User Name").
3.3 Following registration, the User will have access to the zanox marketplace ("User Account"). Exclusively the respective User is authorized to use the User Account. The User must use the User Account exclusively for the purposes permitted under these T&Cs for Users.
4 Authorization of the User by Customers
4.1 The actions of Customers in the zanox marketplace are performed exclusively by Users with corresponding authorization from the respective Customer for the zanox marketplace. In all cases, the authorization shall cover the view of a single Publisher Account or Advertiser Partner Program participating in the zanox marketplace ("marketplace Unit").
4.2 The authorization of the User by a Customer requires prior invitation of the Customer; it shall become effective once the User has consented to the authorization.
4.3 Actions of the User within a marketplace Unit for which he is authorized, shall be on behalf of and with effect for the respective Customer. The Customers shall be liable to zanox for the conduct of the Users authorized by them. Nevertheless, the User is obliged to zanox to comply with the provisions of these T&Cs for Users at all times. The authorization shall not create any entitlements of the User against zanox.
4.4 Customers can authorize more than one User for a marketplace Unit. The Customer can restrict the authorization of the Users to specific activities and uses within a marketplace Unit. A User can be authorized by any number and type of Customers (Advertisers and/or Publishers) or for any number of marketplace Units of one or more Customers ("Multiaccounting").
4.5 All marketplace Units for which the User is authorized are automatically listed in his User Account. The User has direct access via the User Account to the marketplace Units for which he is authorized.
4.6 Customers can withdraw the authorization of a User at any time with immediate effect. The User can also terminate an authorization with immediate effect.
4.7 Following withdrawal of the authorization by the Customer or ending of the authorization in any other way, the User shall automatically cease to have access to the marketplace Unit affected by this ending. The marketplace Unit will no longer be shown in the User Account of the User.
4.8 All authorizations of the User shall expire automatically if zanox blocks the registration of the User pursuant to Section 6.6 of these T&Cs for Users.
4.9 Customers can authorize the User to authorize further Users for a specific marketplace unit in accordance with these T&Cs for Users. Such authorizations by an authorized User shall apply as authorizations by the respective Customer.
5.1 Users registering a Publisher Account or an Advertiser Partner Program for the first time in the zanox marketplace and thus creating the corresponding marketplace Unit are referred to as "Owners". Under the marketplace T&Cs, the Owner has unrestricted rights of use in the zanox marketplace concerning the marketplace Unit registered by him. The Owner’s rights of use shall end automatically if the Owner appoints another User as Owner via the marketplace User Interface. The new Owner shall then automatically replace the previous Owner whose rights of use in the zanox marketplace shall expire. The previous Owner shall remain in the zanox marketplace as User.
5.2 The rights of use shall also expire automatically if the Owner ends his registration or if zanox blocks the Owner’s registration pursuant to Section 6.6 of these T&Cs for Users. zanox shall inform the Customers affected concerning any such blocking and shall request them to authorize a new Owner.
6 Obligations of the User, Misuse
6.1 The User is obliged to refrain from all forms of technical interference with the zanox Network and the zanox marketplace. Technical interference has been defined, in particular, as hacking attempts, i.e. attempts to breach, circumvent or override in any other way the safety mechanisms of the zanox Network or the zanox marketplace, the use of automatic data reading programs, the use and/or dissemination of viruses, worms, Trojans, the use of brute force attacks and/or the use of other links, programs or procedures that may damage the zanox Network or the zanox marketplace (including the entire hardware and software employed to operate the zanox Network and the zanox marketplace) or individual participants of the zanox Network or zanox marketplace.
6.2 Without prejudice to the fundamental liability of the Customers for the actions of the Users authorized by them, the actions of the User in the zanox marketplace
6.2.1 must not violate the provisions of these T&Cs for Users;
6.2.2 must not violate rights of third parties (in particular trademark, copyright and personal rights);
6.2.3 must not use incorrect information for registration;
6.2.4 must not violate other statutory (in particular data protection, competition and criminal) provisions and, in particular, must not contain content that is racist, glorifies violence, is pornographic or morally harmful to adolescents.
6.3 Ways of communicating with Customers which are made available to the User in the context of this Agreement may only and exclusively be used for contractual purposes agreed herein. In particular, the User must not request Customers to cooperate directly through circumvention of the zanox marketplace or zanox Network or encourage any such cooperation.
6.4 The data and information that can be viewed in the zanox marketplace constitute business secrets of zanox. Data and information made accessible to the User in the context of this Agreement may only and exclusively be used for contractual purposes agreed herein.
6.5 With regard to the access granted him to the zanox marketplace as well as the information and data contained therein, the User is not allowed, either in part or in full,
6.5.1 to forward these to third parties (including other Users) or to facilitate their access thereto over and beyond the manner specified in the respective performance description; Section 6.7 shall remain unaffected;
6.5.2 to modify or otherwise alter them partially or in their entirety;
6.5.3 transfer them, partially or in their entirety, into other forms of works;
6.5.4 to use them, partially or in their entirety, to create a database of their own and/or an information service.
6.6 All violations of the above provisions of this Section 6 by the User shall entitle zanox to block the User’s User Account immediately. The User can lodge an appeal in writing against the blocking within one month of the blocking in order to clarify the facts. If it is not possible to clarify the facts in favour of the User, zanox will serve notice of termination. In the event of termination, winding up shall be based on Section 11 of these T&Cs for Users.
6.7 Notwithstanding the prohibition of forwarding to third parties pursuant to Section 6.5.1, the User is authorized to forward information, which he has acquired concerning a specific marketplace Unit in the zanox marketplace, to the Customer and to Users who have authorized the User for this marketplace Unit in the zanox marketplace.
The services for the Users registered in the zanox marketplace are provided by zanox without separate remuneration.
8 Rights of use
For the duration of the contract, zanox shall grant the User the revocable, non-exclusive, non-transferable and non-sub-licensable right to use the zanox marketplace for own business purposes in accordance with these T&Cs for Users and the respective description of services. No further rights of use shall be granted to the User.
9 Liability of the User and indemnification in the event of violation of the contract
9.1 Compliance to these terms and conditions is of major importance for the operation of the zanox marketplace. In addition to termination, zanox reserves the right to take further legal action in the event of serious violation of these T&Cs for Users by the User.
9.2 If the User violates these T&Cs for Users and legal claims are asserted against zanox by third parties (including Customers) as a result of this contract violation, the User shall be obliged to indemnify zanox against all third-party claims; zanox is entitled to demand payment by the User of all costs and expense incurred by zanox as a result of this violation. This includes in particular the payment of damages to third parties associated with the defence against third party claims and any other damage.
9.3 Apart from the aforementioned, the User shall be liable in accordance with the relevant legal provisions.
10 Liability and limitation of liability
10.1 zanox is not liable for the content of third-party websites, for damage or other disturbances caused by defects to or incompatibility of software or hardware of the User, or for damage resulting from the insufficient availability or imperfect functioning of the internet.
10.2 Apart from the aforementioned, regardless of the legal grounds, liability shall apply only
10.2.1 if one of the legal representatives, executives or other vicarious agents has acted with intent or gross negligence,
10.2.2 in the event of any culpable breach of an essential contractual duty, delayed performance or the impossibility of performance, in each case based on the respective merits. The expression “essential contractual duty” describes a duty in the abstract, the fulfilment of which is an essential pre-requisite for the due implementation of the Agreement, and that is a duty on whose fulfilment the respective other party can rely as a general rule.
10.3 In the event of liability pursuant to Section 10.2.2, such liability shall be limited, for financial loss and damage to property, to the amount of the typically foreseeable loss.
10.4 The above limitations of liability shall not apply to cases of mandatory statutory liability, in particular liability pursuant to product liability law, liability for a guarantee that has been assumed, and liability for culpable injury to life, limb or health.
11 Duration and termination
11.1 The Agreement for registration as User in the zanox marketplace is concluded for an indefinite period. The parties can terminate the Agreement at any time in writing.
11.2 Both parties reserve the right to terminate the Agreement without advance notice for good cause. Good cause shall be deemed the following:
11.2.1 one of the contractual parties effectively and/or sustainably violates its contractual obligations
11.2.2 the respective other party is liquidated, its business operation or essential aspects/assets of its operations are sold or liquidated, it becomes insolvent and/or is placed under sequestration or undergoes similar significant changes to its financial position, its capacity to act or its business organisation or if insolvency proceedings have been opened against its assets, if such an application is dismissed for insufficiency of assets or if the court orders a temporary securing of assets
11.3 Termination of the Agreement for registration as User in the zanox marketplace shall automatically result in withdrawal of all authorizations of the User. The information will no longer be displayed following ending of the participation in the zanox marketplace and deleted in full upon expiry of the statutory data retention periods.
12 Amendments to the T&Cs for Users
12.1 zanox reserves the right to amend less material provisions under these T&Cs for Users at any time without providing reasons unless such amendment would lead to a revision of the overall Agreement structure. For the purposes of this clause, in particular any such provisions that refer to the nature and scope of contractual services, the term or termination of the Agreement shall be regarded as material provisions. Notification regarding the amended terms shall be sent by e-mail no later than two weeks before they become effective. Should the User not object to the validity of the amended T&Cs for Users within four weeks of receipt of the e-mail in text form (e.g. by e-mail), the amended terms shall be deemed accepted. zanox undertakes to include a notification detailing the right to object as well as the significance of the four week period.
12.2 If the User objects to the validity of the new (amended) T&Cs for Users, zanox’ request for amendment shall be considered rejected. In this case, the Agreement shall be continued under the previous conditions. zanox’ right to terminate the Agreement shall remain unaffected. Separate reference will also be made to this possibility of termination.
13.1 The User is obliged to keep confidential all company or business information and knowledge of the other party to the Agreement that is made accessible in connection with this Agreement and that has been indicated as confidential or that are recognisable as business or company secrets in other circumstances, even after the termination of the Agreement and for a period of two years thereafter. In case of doubt, all information must be considered confidential. Notwithstanding the aforementioned, the mutual naming in press releases and reference lists by either party shall be allowed, unless the other party contradicts against such disclosure in text form.
13.2 The confidentiality obligation pursuant to Section 13.1 shall apply accordingly for information which the User acquires on Customers and other Users in the zanox marketplace.
13.3 The User is obliged to treat the access data and passwords for the zanox marketplace as confidential and to prevent unauthorized use of the zanox marketplace by third parties.
14 Final provisions
14.1 The User must not, partially or entirely, assign or transfer its rights and/or obligations under this Agreement to a third party without prior written consent from zanox.
14.2 The contractual parties may only enforce claims related to rights to set-off or retention against the other contractual party if the due counter-claim of the other party is either already legally binding or undisputed.
14.3 The present Agreement does not establish a company with effect in relation to third parties and it therefore does not authorize either of the parties to make any legally binding declarations on behalf of both parties together, or on behalf of the respective other party, nor does it authorize them to place the respective other party under any obligation or to represent it in any other way.
14.4 These T&Cs for Users and the contractual relation between zanox and the User shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.5 The place of jurisdiction is Berlin if the User is a merchant within the meaning of the German Commercial Code (HGB), if the User does not permanently reside in Germany, has relocated its permanent residence abroad after the present General Terms and Conditions have entered into force or the User’s domicile or usual place of residence are not known at the time at which a suit is filed with the courts.
14.6 Should any individual provision of these T&Cs for Users be regarded as invalid, as a whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision will be deemed replaced by that provision that is legally effective and comes closest, in the usual understanding, to the economic intent and purpose of the invalid provision. The same shall apply to any unintentional omission.
14.7 The User is aware that these T&Cs for Users were originally drawn up in German. The German version can be forwarded to the User at any time on request. The User is aware of and accepts that, in the event of inconsistencies or differences of interpretation between the German version and this version, the German version shall always prevail.