General terms and conditions of contract and business between NetDebit GmbH and Webmasters

1. Subject matter of the terms and conditions of contract and business - Scope

1.1 NetDebit GmbH specification of performance

As part of the Partner Programme of NetDebit GmbH (NetDebit) for Webmasters offered and administered by NetDebit, NetDebit enters into contracts with Webmasters which result in contracts being concluded between NetDebit GmbH and its customers by way of electronic advertising measures in the type of a broker and for which the Webmasters acquire claims for commission (partner contracts). NetDebit coordinates the Partner Programme by entering and paying the commission to the Webmasters.

The Webmaster is aware that as an access provider, NetDebit is unable to guarantee continuous availability of customer access to the offers advertised by the Webmaster, on account of technical circumstances such as possible overloading of telecommunication networks. NetDebit's performance associated with the Partner Programme therefore consists in granting access to Internet offers for 95% of the overall period of any month. The Webmaster is to be informed in advance if NetDebit's service is to be limited as a result of maintenance work, if this is reasonable for NetDebit.

1.2 Scope of the general terms and conditions of contract and business

These general terms and conditions of contract and business form the basis for the contractual relationship between NetDebit and the Webmasters. This also applies in the event that the Webmaster has conflicting terms and conditions in place. These will not be recognised by NetDebit, in particular where NetDebit accepts the contract offer to enter into the partner contract with knowledge of a Webmaster's conflicting or differing terms and conditions of business and/or provides its services. Any arrangement to the contrary will only apply if this is explicitly accepted in writing by NetDebit.

2. Durchführung des Partnerprogramms

2.1 Creation of the Contract

NetDebit provides Webmasters with an online form. The Webmasters complete the form in full and with truthful statements and send this contract offer to NetDebit via the online form. NetDebit accepts the offer by informing the Webmaster of the acceptance if the form has been provided in full. The Webmaster may also be informed electronically of this. A valid contract is concluded between NetDebit and a Webmaster with the sending of the access data at the latest (Section 2.3). The same applies to additions, amendments or side agreements. However, a contract may only be concluded with Webmasters who are over 18 years of age or where corresponding consent has been provided from a legal representative.

2.2 Statements within the framework of the Partner Programme

All information on this contract is sent by NetDebit to the Webmaster's individual email address stated on the registration form.

2.3 Sending of access information via email

Once a contract has been effectively entered into, the Webmaster receives an email containing their personal access information for the purposes of accessing NetDebit's closed areas. The Webmaster can select among the available Partner Programme options here. Following a decision to participate in one of the programmes on offer, either NetDebit or a contractual partner of NetDebit provides the Webmaster with advertising material or a link with the individual Webmaster ID, which it will incorporate into its site.

2.4 Current Account

Die aufgrund von Werbung unter Verwendung der Webmasterkennung getätigten Umsätze verbucht NetDebit auf das individuell für den Webmaster eingerichtete virtuelle Konto (Kontokorrent).

2.5 Accrual and amount of the Webmaster's commission

Once the contract for participation in the NetDebit Partner Programme has been effectively concluded, the Webmaster is entitled to advertise the service offering of one or more of NetDebit's contracting partners on the Internet.

The Webmaster is entitled to commission where a contract is entered into effectively between NetDebit and a customer based on the Webmaster's mediation activities.

The amount of commission claimed for a contract that has been mediated is based on the respective current price list of the Partner Programme option selected by the Webmaster. The Webmaster will be able to view statistics concerning commissions, revenues, cancellations and credits online. NetDebit provides a closed area restricted to Webmasters for this purpose within the website https://www.netdebit-payment.de.

2.6 Disbursement of the commission

The commission shall be due for payment on the 20th day of the month following the month in which NetDebit generated the revenue with the customer (subsequent month).

NetDebit will pay the commission which is due to the Webmaster no later than 30 days following the end of the month in which NetDebit has generated the revenue with the customer, generally between the 15th and 20th calendar day of the subsequent month. In the event that the Webmaster does not meet its obligations arising from this contract or only meets these in part, and if the breach of contract is not a proportionally insignificant one, then NetDebit is entitled to exercise a right of retention on the due commission. Payment may also be postponed until the circumstances have been clarified as to how the revenue cancellation factor of the Webmaster determined by NetDebit is at least 25% higher than the average revenue cancellation factor of the same Webmaster.

The commission will only be paid plus the applicable VAT if the Webmaster is able to prove for every year that it is authorised to charge VAT pursuant to Section14, sub-section 4 of the German VAT Act (UStG) on invoices pursuant to Section 14 UStG by providing its VAT ID no. / tax ID no. and submitting a valid confirmation from the competent tax authority (e.g. Form USt 1 TN) or a tax consultant.

Services and commission for the purposes of Section 14, subsection 2 (2) of the UStG shall be settled by NetDebit by way of a credit entry. The credit shall lose its effect as an invoice if the recipient objects within a period of 2 weeks after entry. Following this period any commission will only be paid after submission of a proper invoice by the Webmaster in accordance with Section14, sub-section 4 UStG.

NetDebit shall pay the Webmaster via bank transfer to the account provided by the latter. In the event that the Webmaster provides incorrect information concerning its bank details then the transfer costs incurred through this will be charged to the Webmaster. Any commission to be paid via bank transfer and which falls below the figure of €10.00 in one month will not generally be paid but may be booked to the current account (Clause 2.4).

The commission will be paid subject to an effective claim for the commission from the Webmaster. In the event that NetDebit makes payments without there being an actual entitlement to the payment of the commission, the Webmaster is under an obligation to reimburse the commission payments that have been made without delay and in full.

If the Webmaster does not have a bank account in its country of residence into which payments may be made via SEPA transfer, NetDebit shall be entitled to make payment by cheque. Any commission to be paid by cheque and which falls below the figure of €50.00 will not be paid but will be booked to the current account (Clause 2.4). If the booked amount exceeds €50.00 then it will be included in the next payment to be made by cheque to the Webmaster.

2.7 Inclusion of third parties in implementing the contract

NetDebit is entitled to use third parties to meet its service obligations. To this extent the Webmaster is under an obligation to cooperate with the third party and to recognise its service as a service provided by NetDebit. In this context third parties may also be affiliate companies for the purposes of Sections 15 et seq. of the Stock Corporation Act.

The Webmaster is not entitled to use third parties to meet its contractual obligations without the express consent of NetDebit. However, NetDebit will only refuse its consent if there is an important reason for this which could threaten the contractual purpose.

2.8 Processing attachments of debt

If a claim of the Webmaster against NetDebit is attached by a third party then the Webmaster will be charged a flat-rate processing fee of €25.00 as compensation for damages. The Webmaster may provide evidence that no damages were incurred at all or that these were significantly lower than the flat-rate fee.

3. Obligations of the Webmaster / consequences of breaches of obligation

3.1 Liability of the Webmaster in relation to NetDebit

Unless otherwise provided through differing provisions in these terms and conditions, the Webmaster is liable for all claims from NetDebit arising from the contractual relationship as well as from unauthorised actions.

The Webmaster is liable for any breach of contractual obligations by its employees and for any unauthorised actions committed by these employees as well as for other obligations governed by this section in the same way as it is liable for its own culpable actions.

3.2 Responsibility of the Webmaster for own content / release from liability for NetDebit and its contracting partners for third-party content

The Webmaster is personally and solely responsible for the links and content of the websites that it operates. Through entering into the contract for participation in the Partner Programme, the Webmaster undertakes to formulate the content of its websites and of other electronic applications in accordance with the applicable statutory requirements. Criminal law, copyright law, youth-protection law, trademark and other identification laws and personal rights as well as competition laws must be complied with in particular here.

The Webmaster releases both NetDebit as well as NetDebit's partners from any liability for third-party claims which arise through culpable breach of the statutory provisions through the Webmaster's services. NetDebit and its partners will be indemnified for the costs of any required legal defence. NetDebit and its partners are entitled to require that the Webmaster pays an appropriate advance for this. The Webmaster is under an obligation to support NetDebit with the provision of information and documents in good faith for any legal defence against third parties.

3.3 Pflicht zur sorgfältigen Aufbewahrung der Zugangsdaten/Haftung des Webmasters

The Webmaster will not disclose its access data to the relevant Partner Programme to third parties, in particular to confidential information on NetDebit's contracting partners. The Webmaster will store the access data carefully at all times and protect it from being accessed by third parties using appropriate measures. The Webmaster is liable for damage caused through its own fault and caused through third-party access to data used within the framework of the Partner Programme.

3.4 Obligations of the Webmaster regarding information

Prior to participating in a Partner Programme the Webmaster will become acquainted with the currently applicable general terms and conditions of contract and business, and the current commissions which are available at https://www.netdebit-payment.de.

The Webmaster must notify NetDebit immediately of any illegal use of the Partner Programme. The Webmaster must also respond truthfully and without delay to any queries received from NetDebit.

3.5 Retention obligation of customer data

In the event that the Webmaster receives knowledge of personal data on NetDebit customers it will treat this in accordance with the applicable data protection laws.

3.6 Assignment / offsetting by Webmasters

Any assignment of claims of the Webmaster arising from the contractual relationship with NetDebit requires prior written consent. Section 354a of the German Commercial Code (HGB) remains unaffected.

The Webmaster may only offset its own claims where these have been determined as legitimate, undisputed, or expressly acknowledged by NetDebit.

3.7 Ensuring the protection of minors

Webmasters domiciled in Germany whose Internet offerings include pornographic content in the form of images, text or audio material undertake to secure their sites from being accessed by minors using a youth-protection system which meets the requirements under Sections 184 et seq. of the German Criminal Code (StGB) and Section 4 of the Youth Media Protection Treaty (JMStV).

3.8 Cooperation in order to limit cancellations

The Webmaster must take all reasonable steps to keep the cancellation factor for the transactions mediated by it as low as possible and to play its role in ensuring that this figure is less than 25% above his average cancellation factor.

3.9 Blocking of accounts

In the event that the Webmaster does not meet its contractual obligations to more than a merely negligible degree, then NetDebit is authorised to block the Webmaster's account. This applies in particular to cases where the Webmaster is suspected of fraud.

4. Changes to fees (amount of commission)

NetDebit may change the commission agreed in the Contract with the Webmaster following written notification of this (by email to the Webmaster’s stated email address) with a minimum period of one month before this takes effect (appointed date).

If the Webmaster does not agree to the change of commission, it shall have a right of termination which it may exercise without observance of the agreed notice period and effective as of the appointed date.

Unless the Webmaster objects to the fee change within two weeks from receipt of the advance notification (for adherence to the deadline the receipt of the objection statement at NetDebit applies) or it continues the contractual relationship by using NetDebit's services despite the notification of the fee change, then the fee change shall apply to the Webmaster. This legal position will be pointed out to the Webmaster in the advance notification in particular. If the Webmaster expressly objects to a fee change, NetDebit shall be entitled to terminate the contractual relationship without observance of the agreed notice period and effective as of the appointed date.

5. Contract term

The contract is concluded for an indefinite period.

The contract may be terminated by NetDebit or the Webmaster in the first year of the contract term with a notice period of one month, in the second year with a notice period of two months and in the third to the fifth year with a notice period of three months. After a contract term of five years the contract may be terminated with a notice period of six months. Termination may be notified after the 15th calendar day of a calendar month and also for the conclusion of calendar month.

A right to termination for just cause exists independently of this rule.

Just cause which entitles NetDebit to an extraordinary termination without complying with a notice period, exists in the following cases in particular:

  • The Webmaster files for bankruptcy. The same applies where creditors of the Webmaster make an application for bankruptcy.
  • The Webmaster breaches essential contractual obligations, including in particular breaches of the provisions on data protection and the obligations of confidentiality.
  • The Webmaster engages in criminal activity in connection with the Partner Programme.

Any termination must be provided in written form.

Following ordinary or extraordinary termination the Webmaster must return all of the documents provided to it without delay. It must discontinue any use of the Partner Programme immediately. Authorisation to advertise partner services and/or goods is revoked once the termination takes effect.

6. Assignment / offsetting by NetDebit direct debit procedure

6.1 Assignment

NetDebit is entitled to assign its rights and obligations from this contractual relationship between it and the Webmaster to a third party in whole or in part with a notification period of four weeks. In this case the Webmaster is entitled to terminate the contract without adhering to a notice period at the point in time that the assignment takes effect.

NetDebit also reserves the right to assign all claims against the Webmaster to a collection agency and to have these claims asserted by this agency.

6.2 Offset

NetDebit is entitled to offset the Webmaster's claims for commission against all claims against the Webmaster or to collect these in a SEPA direct debit procedure from an account of the Webmaster communicated by NetDebit as long as the Webmaster agrees to the SEPA direct debit procedure.

7. Liability

7.1 Limitation of liability to pay compensation

All content on the Webmasters' websites and other electronic applications is considered by NetDebit to be third-party information for which the Webmasters are personally and solely responsible.

In principle NetDebit is liable for claims under or outside of the contract for damage caused by the Webmaster solely in the event of wilful intent or gross negligence. Where essential contractual obligations are breached, i.e. obligations which enable the proper performance of the contract and which the Webmaster therefore trusts and may trust will be fulfilled, in the event of default of the debtor and for cases of impossibility of providing the service for which NetDebit is responsible then NetDebit will also be liable for any culpable breach of obligation of its employees and agents.

7.2 Limitation of liability to typically foreseeable damage

Except for cases of wilful intent/gross negligence on the part of NetDebit and the intentional/gross negligence of its legal representatives, employees or agents, the liability of NetDebit is limited to damage that is typically foreseeable when entering into the contract.

7.3 Liability in the event of loss of data

Should NetDebit be culpable for a data loss of the Webmaster, NetDebit's liability is limited to foreseeable damage. The foreseeable damage is the typical effort and expenditure required to recover the destroyed data with fulfilment of the Webmaster's subsequent obligation. The Webmaster must back up its data at regular intervals in a machine-readable format in order that it can be restored with reasonable effort and expenditure.

7.4 Liability of legal representatives, employees or agents

Where the liability of NetDebit is excluded or limited then this also applies to the liability of the legal representatives, employees or agents of NetDebit.

7.5 Inapplicability of the limitation of liability in certain cases

The limitations of liability stated above do not apply to damage from injury to life, limb or health, nor to cases of mandatory statutory regulations such as the Product Liability Act.

8. Confidentiality / data-protection / protection of computer systems

8.1 Data confidentiality

Except for those cases where data is forwarded based on a statutory obligation or in connection with official or judicial procedures, neither party will disclose to third parties any of the data of which they become aware through implementation of the contract.

8.2 Trade secrets

The parties undertake to maintain confidentiality. This covers all customer information and the trade secrets of the relevant other party. A trade secret is a piece of information, pursuant to Section 2 (1) of the Law on the Protection of Trade Secrets (GeschGehG) which

  1. either taken as a whole or in the precise configuration and composition of its constituent parts is not generally known, accessible or readily available to persons in circles who generally deal with this type of information and is therefore of commercial value and
  2. is the subject of appropriate confidentiality measures, according to circumstances, by their legitimate owner and
  3. for which there is a legitimate interest in confidentiality.

8.3 Data protection guarantee

NetDebit collects, saves and processes data within the framework of the Partner Programme. This is based on the provisions contained in the NetDebit data protection statement for Webmasters and Content Providers (link to data protection statement).

8.4 Protection of computer systems

The parties undertake to implement appropriate precautions to protect their computer systems from unauthorised and accidental data deletion, damage or modification.

8.5 Obligations of the Webmaster's employees

The Webmaster will inform the individuals working for it (employees and independent contractors) of the regulations concerning confidentiality and data protection and will require them to comply with these regulations.

9. Final provisions

9.1 Amendments to the terms and conditions

NetDebit reserves the right to amend or supplement these general terms and conditions of contract and business for the future. Amendments to these general terms and conditions of contract and business will be implemented in accordance with the procedure described in Section 4. Notifications of amendments to the general terms and conditions of contract and business will also be provided on the website https://www.netdebit-payment.de.

If the Webmaster does not agree to the change to the general terms and conditions of contract and business, it shall have a right of termination which it may exercise without observance of the agreed notice period and effective as of the appointed date.

Unless the Webmaster objects to the amendment of the general terms and conditions of contract and business within two weeks from receipt of the advance notification (for adherence to the deadline the receipt of the objection statement at NetDebit applies) or if the Webmaster continues the contractual relationship by using NetDebit's services despite the notification of the change to the general terms and conditions of contract and business, then the amended general terms and conditions of contract and business shall continue to apply to the Webmaster. This legal position will be pointed out to the Webmaster in the advance notification in particular. If the Webmaster expressly objects to an amendment in the general terms and conditions of contract and business, NetDebit is authorised to terminate the contractual relationship without observance of the agreed notice period and effective as of the appointed date.

9.2 Application of German law / jurisdiction

These general terms and conditions of contract and business are subject to substantive law of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the International Sale of Goods.

If the Webmaster is a merchant or has no place of general jurisdiction/fixed domicile in Germany then, as far as admissible, the Amtsgericht (local court) of Düren and Landgericht (district court) of Aachen shall have jurisdiction for any disputes that arise in connection with this contract or in connection with the use of NetDebit's services or these general terms and conditions of contract and business. The same shall also apply where the Webmaster has relocated its place of residence or usual abode abroad after these contractual terms and conditions have come into effect, or if the place of residence or usual abode is not known at the point in time that the proceedings commence.

Should one or more provisions in general terms and conditions of contract and business and be or become invalid, this shall not affect the validity of the general terms and conditions of contract and business in any other respect.

Last amended: 01 December 2019

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