General Business Terms and Conditions
The following terms of conditions apply to the use of the platform tracdelight.com (hereinafter “Platform”), operated by tracdelight GmbH (hereinafter “tracdelight”), and to market online advertising between Publishers and Advertisers (hereinafter collectively “Users”).
The general terms (see section A.) apply to all users, the special conditions for advertisers (see section B.) and the special conditions for Publishers (see section C.) only to advertisers or publishers.
A. General Conditions
A.1 Scope of Application
The following terms of contract apply to all license agreements. It is applied to all future business relations, even if it is not explicitly agreed anew. By registering to use this platform the terms of contract are agreed to. User’s terms, deviating from the agreement, are invalid and do not apply, unless specifically accepted by tracdelight in written form. Acknowledgements of the User, referring to their terms and conditions are hereby rejected.
In these Terms of Condition, as in all additional contracts between the user and tracdelight, the following definitions are to be taken as a basis.
Advertiser is a provider of products and services, promoting his supplies via advertising means provided by the advertiser.
Publisher provides advertising space and promotes the advertisers´ products and services on his website.
Consumers are corporate clients and natural persons, purchasing wares and services or using other supplies in the internet.
Account is the legitimate access to the platform following the user’s registration with their complete information, correct in substance.
Hyperlink (hereinafter also link): A reference to a website with internet offers, provided for potential visitors.
Valid click: a click is valid when the consumer, deliberately and of one´s own accord, clicks a link on the publisher’s platform in order to open the linked website of an advertiser. Repeated or consecutive clicks (determined by the respective advertiser) within a short period of time by the same visitor – also on different hyperlinks – are invalid. Valid clicks are recorded and verified by tracdelight and determined in its own discretion.
Valid Lead: a lead is valid when a consumer performs a valid click and subsequently carries out a defined action (qualified action) on the advertiser’s website deliberately and of one´s own accord.
Valid Sale: A sale is valid when a consumer performs a valid click and subsequently purchases wares against payment or utilizes services against payment on the advertiser’s website deliberately and of one´s own accord.
Unique Visitor is every real visitor of the advertiser’s internet offer who is redirected to the advertiser’s internet offer via the advertising means integrated by the publisher.
A.3 Participation on the Platform
1. The registration in itself is free of charge. It is ensued by opening a user account consenting to these Terms and Conditions. In consequence of a registration and confirmation by tracdelight, a license agreement for using the platform (hereinafter user contract) between tracdelight and the user comes into force.
2. The registration is solely permitted to juristic persons and unrestricted, natural persons of legal capacity.
3. The information requested by tracdelight at registering is to be completed fully and correctly. The registration of a juristic person can only be performed by a natural person authorized to represent and mentioned by name. Should a change in the information given occur after registering, the user is obliged to immediately correct this information on the user account via tracdelight.
4. When registering the user specifies a valid email address and a password. The user must keep the password to themselves. tracdelight will not communicate the password to third parties.
5. An account is not assignable to another person or party.
6. tracdelight reserves the right to suspend the account after 6 months if the registration has not been completed correctly.
A.4 Subject-matter and Conclusion of the Contract
1. Should tracdelight conclude a separate contract with the users, it is including these Terms and Conditions.
2. tracdelight offers the advertising space provided by the publishers to the participating advertisers and vice versa.
3. The advertisers chose via tracdelight through which advertising space, provided by the publishers, they want to advertise and sell their wares and services. The advertisers communicate this choice to tracdelight via the platform.
4. On the platform the determined selection will be validated graphically.
A.5 Account und Duration of Contract
1. The user accounts for the tracdelight platform are granted indefinitely.
2. The contract between tracdelight and the users for the delivery of the following service is concluded for the duration of the running week. It will be extended for the duration of another calendar week if no due notice from tracdelight or the user has been received by the end of the day following the day of receipt of the termination request. Should a cancellation of contract occur, tracdelight will subsequently deactivate the existing accounts.
3. A cancellation of contract according to these regulations is to be stated to firstname.lastname@example.org in text form or via E-Mail.
A.6 Deactivation of the Account and Termination
1. tracdelight is entitled to cancel a contract and to deactivate the account of the respective user by giving notice of one day in advance to the end of the calendar week in case this user did not make any according payments on the account or claimed payments for the duration of 12 months and if the user does not reply with a request for contract extension to a respective notice of deletion.
2. Furthermore, tracdelight can take the following measures, if concrete indications are given that a user infringes on legal regulations, third-party rights, these Terms and Conditions, in particular A.7, B.1.4, B.2.3, B.2.5, C.2.2, C.2.3, C.3.1 and C.3.3 or if tracdelight has another legitimate interest, in particular as a means of protecting other users from fraudulent activities:
• Issuing cautions to users
• Restrictions to the use of the platform
• Temporary suspension
• Final suspension
3. When deciding on the measure to be taken, tracdelight considers the legitimate interests of the user concerned, in particular if there is any indication that the user is not responsible for the infringement.
4. Rights for dismissal for exceptional reasons beyond these are expressively reserved by tracdelight and the users. tracdelight is entitled to cancel the contract for exceptional reasons and to deactivate the account without the one day notice in case there is any indication of serious or permanent infringement of these Terms of Conditions by the user, in particular the obligations according to A.7 of these Terms and Conditions.
1. The willful attempt to manipulate the statistics, and thus the amount to be paid out, will be charged with a penalty in the amount of € 500 for every attempt ascertained. The same applies in case a user takes part in the program anew under a false name after having been excluded due to repudiatory breach of contract .
2. The penalty is to be paid to a public utility institution determined by tracdelight.
3. Every attempt to bypass, manipulate or influence the system, technology, script, codes, mechanism and principles of billing set by tracdelight in any other way, is prohibited and can result in a charge against the initiator for fraud or attempted fraud.
A.8 Termination of Contract
1. At deactivation of the account a final invoice is issued.
2. A user whose account has been deactivated due to repudiatory breach of contract is not eligible to register for use of the platform anew. Additionally, violation of this regulation obliges the user to pay damages to tracdelight.
1. tracdelight provides its services, system, technology and solutions in all conscience and within the scope of its technical possibilities. The actuality, accuracy, totality or quality of the information provided, by tracdelight, as well as a faultless and uninterruptable use of the services, system, technology or solutions is not warranted.
2. Apart from infringement of essential contractual commitment, tracdelight is liable to corporate clients for damages only if intent or gross negligence can be held against tracdelight, legal representatives or executive employees. For other performing agents tracdelight is only liable for intent and in case they have infringed on the essential contractual obligations with intent or gross negligence. Except for intent or gross negligence by legal representatives, executive employees or willful conduct of other performing agents, tracdelight is not liable for the compensation of indirect damages, in particular for lost profit. Except for intent or gross negligence by tracdelight, legal representatives or executive employees, liability is limited to the foreseeable damage typical to conclusion of contract.
3. tracdelight is only liable to private persons in case of intent or gross negligence. In case of responsibility of tracdelight for infringement of essential contractual obligations, debtor’s delay or impossibility of service provisions, tracdelight is only liable for culpable conduct of its employees, and performing agents. Except for intent and/or gross negligence by legal representatives, employees and other performing agents, tracdelight‘s liability is limited to the foreseeable damage typical to the conclusion of contract.
4. the above mentioned disclaimers of liability and restrictions towards corporate clients or users do not apply to acceptance of explicit guarantees through tracdelight, and for injury of life, body and health, as well as in case of obligatory legal regulations.
B. Special Provisions for Advertisers
1. tracdelight sets up and manages accounts to carry out the commissions.
2. Advertisers can start advertising campaigns after registering.
3. The advertiser is obliged to customize the applicable internet page to the respective programs (e.g. by implementing a code relayed by tracdelight) so that tracdelight can perform the data acquisition needed for commission. This code may not be changed without written approval by tracdelight.
4. The advertiser pays tracdelight a success-related commission when a successful business transaction (valid lead, click or lead) takes place for the publisher.
5. The respective commission for an advertising campaign is ascertained by the advertisers in their account.
6. The technology of the platform creates the statistics needed for an accurate commission and provides the advertiser with these within the account. These statistics alone provide the basis for billing for the respective commissions of the advertising campaign. This is also applicable for the project schedule of possible leads and sales.
7. The advertiser is obliged to verify the validity of leads and sales. On the platform the advertiser has the facility to issue respective clearances. Should the advertiser neglect to do this within 60 days of recording the respective sale of lead, tracdelight is entitled to request the advertiser to act. After the passing of 2 more weeks all recorded sales and leads are counted valid. In the course of the request tracdelight will notify the advertiser of current deadlines and legal consequences.
8. The advertiser will receive a monthly invoice of the verified valid sales, clicks and leads during the accounting period from tracdelight.
9. Invoices from tracdelight are to be paid, without deduction of cash discount, within 10 days upon receipt.
B2. Providing Advertising Media
1. The advertiser provides the advertising media to be applied by the publisher according to the technical demands by tracdelight.
2. The advertiser agrees to the publisher having access to its advertising media and the information related to the advertising media, including design, target URL, analyses and any other data.
3. The issue of an advertising media design, as well as target URL of the advertising media, including its accessibility lies solely within the advertiser’s area of responsibility. tracdelight is entitled to reject advertising media by the advertiser without reasoning as well as adjusting possible technical requirements.
4. The advertiser guarantees that the advertising media provided, as well as the linked target page, do not infringe on applicable law, nor affect or harm the right of third parties, of any type.
5. The advertiser indemnifies tracdelight from any claims by a third party regarding violation of rights according to Nr. 4 and is committed to substitute any resulting disadvantages and damages of this regard.
6. An advertising campaign with the topic area price comparison/product comparison demands a written approval by tracdelight before the respective campaign.
B.3 Assignment of Rights
1. The advertiser grants tracdelight and the respective publisher, accepted in accordance to A.4, a single, not exclusive, non-transferable, worldwide right of use of the provided advertising media, limited to the duration and restricted to the subject terms of contract.
2. The aforementioned grant of rights also contains the right of storage, duplication, publication, digitalization, as well as editing the advertising media as long as the enforcement of the contract requires it. Furthermore this grant of rights is applicable to the use via fixed and mobile communication networks and media, including all digital and analog broadcasting and recalling technique, in particular via cable, radio, fixed and mobile satellite networks and microwaves, all known and future communication methods (in particular WLAN , broadband, GSM, GPRS, EDGE, UMTS, HSDPA, HSUPA and DVB-T and DVB-H) transmission protocol and transmission languages (in particular TCP/IP, IP, HTTP, WAP, HTML, cHTML and XML) including reproduction on any receiving set, like stationary, mobile and ultra mobile computers, television sets, set-top-boxes, (hard disk recorders) video recorders, mobile phones, mobile digital assistants (MDA), personal digital assistants (PDA) and mobile internet devices (MID).
B.4 Placement of Advertising Media
1. tracdelight supports the linking between the advertiser and publisher on the platform. tracdelight does not however guarantee the advertising campaigns time of commencement, the frequency nor the possible campaign success.
2. The issue of possible placement/positioning of advertising media provided lies solely in the discretion of tracdelight, as well as the affiliated publisher.
C. Special Provisions for Publishers
1. tracdelight sets up and manages accounts to carry out the commissions.
2. Publishers are compensated by the advertising success achieved through tracdelight. The data acquisition required calculating the advertising success and the associated compensation takes place solely through tracdelight. At any time tracdelight is entitled to change the compensations at its own discretion.
3. The advertiser pays a commission, minus the respectively determined percentage for tracdelight, which is due to the respective publisher. The amount of the success-related commission, which the publisher receives from tracdelight, can be accessed by the publisher on the platform at any time. A claim of remunerating advertising activity costs, above this success-related commission is precluded.
4. The publisher’s claim of the success-related commission from tracdelight, accrues and will only be payable when all following requirements are fulfilled
• Successful business transaction (valid sale, click, lead)
• Recording of business transaction via tracdelight
• Acceptance of goods by end customer
• Expiration of legal cancellation period
• Complete payment by end customer
• No misuse in terms of A.7 of these General Terms and Conditions
• Confirmation of business transaction through the adviser
5. Payment of commission to publisher ensue within the account on the 20th of each month, upon submission of a correct invoice address, from a account balance of 50 Euro net and when the user has explicitly activated the payment process within the account.
6. The publisher expresses consent for a billing via credit memo procedure, resulting in a monthly credit issued by tracdelight, as soon as an adequate to be paid out has been attained.
7. The transfer of the respective remuneration to the publisher ensues based on the statistics generated via the platform. These are made available within the account.
C.2 Registration of Websites
1. The internet offers registered by the publisher, as well as the content, must comply with the existing legal regulation at all times.
2. A publisher may only register internet offers which are registered to him. Should a registration via third parties occur, tracdelight may demand respective credentials.
3. Publisher may only register websites whose contents do not infringe on the applicable law. tracdelight may examine websites registered by the publisher for illegitimate contents with the aid of technical means. Should a publisher´s website contain illegitimate or even penologic content, the concerning website, as well as the publisher concerned, will be precluded from program participation immediately and the publisher account will be suspended. Publishers explicitly warrant that the registered websites absolutely do not include any pornographic, violent, anticonstitutional or any other illegitimate content.
C.3 Application of Advertising Media
1. The publisher may not change the provided advertising media and codes without explicit approval by tracdelight. Any such changes without approval, entitles tracdelight to perform termination with immediate effect with simultaneous retention of possible credits.
2. To ensure correct statistics, as well as the related billing, the publisher is obligated to technically integrate the respective advertising media correctly. Publishers are responsible for the correct integration. For advertising media, incorrectly integrated, any claim on remuneration is inapplicable. Any liability on the part of tracdelight, as well as the advertisers for possible disadvantages, which publishers might incur due to incorrectly integrated advertising media is explicitly precluded.
3. It is also disallowed to enlist users of the publisher website to partake in the proceeds from an advertising media placement by prompting them to click on the advertising media.
4. For commissions attained through the abovementioned violations, any claim on disbursement is precluded, and tracdelight is entitled to exclude the respective publisher and, if necessary, demand compensation from the publisher, amounting to double the revenue attained through any violation, when tracdelight is aware of such a case. The publisher is entitled to prove evidence of less damage than it has been numbered by the advertiser and/or tracdelight.
C.4 Responsibility for Publisher Website
Publishers are solely responsible for their websites, including all content, as well as maintenance and operation. They are also solely responsible for the according execution of all technical standards, in particular the observance of the regulations defined here as well as on the platform.
C.5 Warranty for Advertising
tracdelight does neither assume an explicit nor an implied warranty concerning the advertising media, wares or services provided by the advertiser and explicitly rejects any warranty for minimum quality, or a minimum efficiency for a certain purpose. This is also applicable for any requirements for a non-infringement of rights of third parties.
D. Final Provisions
1. This contract is subject to German law.
2. Legal venue for all controversies from or related to this contract, in so far as permitted by law, is München.
3. This contract does not establish any corporation with legally binding external effects, employment relationship, sales or commission agent relationship, nor any work contract, therefore, none of the parties of this contract is entitled to make a binding statement for both or the other party, nor to oblige or represent the other one in any kind.
4. Should several regulations of this contract be ineffectual or not feasible, the remaining part of the contract remains effective and feasible, insofar as it complies with the assumed will of the parties. In this case, instead of the ineffective or infeasible regulation, a regulation will be agreed upon which represents the intentions of the contracting parties at the closest. This is also applicable in case this contract contains loopholes.
5. tracdelight is entitled to change or amend these General Terms and Conditions at all times. The user has the right to object to such change. Should a user not object to the regulations changed within a period of 6 weeks after receiving the notification of change, the respective announcements come into effect. tracdelight adverts the user in written form or via email, at the beginning of the respite, that the notification of change will be counted as accepted, if the user does not object within 6 weeks.
Latest update 12. August 2011