General Terms and Conditions of Business with PublishersArticle 1 Scope, object and conclusion of this Agreement
1. The following terms and conditions definitively regulate the contractual relationship between the operator of the service named Qads, BlackCap Media GmbH & Co. KG, Kettelerstr. 3-11, 97222 Rimpar, Germany, Email: firstname.lastname@example.org, Phone: +49 (0) 9365 / 88 80 778, (hereinafter referred to as Qads) and the publisher (hereinafter referred to as PUB) who operates an online games portal and wishes to integrate or have integrated content of Qads and use its service.
2. These General Terms and Conditions shall apply exclusively. Terms and conditions of PUB conflicting with or deviating herefrom will not be acknowledged unless Qads has expressly agreed thereto in writing.
3. The object of the Agreement is the service operated by Qads for the marketing of interactive content via PUB's traffic sources (website, social channel, offline locations). PUB shall receive content for his traffic source via the service provided by Qads, and remuneration on a CPA (cost-per-action) basis, in other words payment based on a condition to be determined.
4. PUB herewith concludes the Agreement within the framework of the entrepreneurial activity already pursued or taken up through conclusion of said Agreement; consumers/users are excluded from the conclusion of agreements. PUB assures that in concluding this legal transaction he is acting within the framework of its commercial or freelance occupational activity. Furthermore, PUB shall be under the obligation to submit correct and complete data for the registration process and to promptly notify Qads of any alterations or supplements thereto during the term of this Agreement. To the extent that he is a natural person, PUB assures that he is of legal age. Should PUB have completed his 16th but not yet his 18th year of age, he assures Qads that he is in possession of the appropriate authorization or consent on the part of his parents or legal guardians to participate in the service operated by Qads. Inasmuch as PUB is performing the registration on behalf of a legal entity, he herewith assures that he has the corresponding authorization to enter into the contractual obligations on its behalf.
5. The Agreement between Qads and PUB shall be concluded in writing or by means of an online form. If concluded by said online means, PUB may make use of the online form provided for the purpose by Qads on its website at https://qads.io. In order to submit his offer for the conclusion of an agreement, PUB shall fill out said form, providing his complete data and acknowledging the validity of these General Terms and Conditions of Qads by placing a tick in the corresponding checkbox. It will not be possible to submit the online form without this acknowledgement and without completion of the mandatory fields. The contractual agreement between PUB and Qads shall come about if and when Qads sends PUB confirmation to that effect. PUB shall have no claim to the conclusion of a contractual agreement with Qads since the latter may refuse such conclusion without having to provide any reasons for doing so. The agreement of these terms will make any over contract invalid. The use of the service shall be free of charge for PUB. These General Terms and Conditions of Business will be brought to PUB's attention on conclusion of the contractual agreement and can be accessed at any time online under https://qads.io/terms
.Article 2 Services and obligations of Qads
1. Via the interactive content integrated into or linked to by PUB's traffc source, Qads offers PUB the opportunity to earn remuneration for customers generated via advertising media. On conclusion of the contractual agreement, Qads will provide PUB with various advertising media (interactive content) from the current campaign portfolio to which Qads has access. PUB shall be granted non-exclusive, territorially unrestricted, non-transferable rights to the use of said advertising media, in particular the right to use, reproduction and publication thereof. Furthermore, PUB shall have access to a personal zone on the ad server, the advertising media management server where he can view his revenue statistics. For this purpose PUB shall assign a password and shall be responsible for the security thereof and ensure that it does not become known to third parties.
2. On the basis of specific agreement between Qads and PUB, PUB's monetizing of the content received from Qads shall be possible by various means:
a) Direct advertising media
Qads provides PUB with various advertising media such as, for example, chat-stories, quizzes, banners, text ads, pop-ups, etc., which, having been incorporated into the traffic source of Qads, are to be filled with advertising from the current campaign portfolio via which customers for the advertised products are then to be generated.
b) Indirect advertising via already existing applications, etc.
PUB receives from Qads usable programmes or applications such as, for example, chat-stories, quizzes, online games, webpages, download software or mobile apps, which already contain advertising media such as banners, text ads, pop-ups, etc. and integrates these via his internet portal in order to generate customers via said advertising media. The advertising media will be filled by Qads with advertising from the current campaign portfolio.
3. Qads will be under no obligation to use the advertising media in a predefined volume or at predefined intervals or to fill said advertising media with particular advertising. The filling of the advertising media with advertising shall be the responsibility of Qads and take place at its discretion since it has the appropriate experience for assessing the market and orients said filling to its current campaign portfolio. Qads provides no guarantee for the availability of its services or for a complete recording of all revenue and generated successes. A complete and error-free recording within the framework of business models based on the tracking of actions generated on the internet cannot be guaranteed for technical reasons.
4. Interruptions or delays in the performance of services as result of force majeure or of other occurrences which make the performance of its services temporarily or permanently impossible or unreasonable for reasons for which Qads cannot be held responsible and which could not have been prevented or avoided with the diligence of a prudent businessman shall interrupt Qads' duty of performance for the duration of such interruption and to the extent of its impact. Occurrences within this context include, for example, outages at other operators in the spheres of telecommunication, telecommunication transmission or networks, in particular at internet access providers, as well as power failures, natural disasters, acts of violence on the part of third parties, improper, in particular excessive use of the services of Qads, computer viruses and actions taken by authorities. Inasmuch as Qads uses third-party services for the purposes of providing its services, its duty of performance shall be subject to the proviso that the contractually obligated third party performs its services correctly and punctually; should this not be the case, Qads shall accordingly notify PUB without delay. Both parties shall have entitlement to extraordinary termination of the contractual relationship in such case.Article 3 Obligations of PUB
1. PUB shall be subject to the obligation to integrate the adverting media, interactive content or applications received from Qads into its traffic source for the duration of the contractual agreement and enable Qads to fill these with advertising from the campaign portfolio. Furthermore, PUB shall be subject to the obligation to notify Qads of the internet address (URL) at which said integration takes place. The responsibility for the technical equipment needed for using the service provided by Qads shall rest with PUB himself.
2. PUB shall use the service provided by Qads for no purposes other than for fulfilling the contractual terms and conditions, doing so in observance of and compliance with provisions contained herein as well as with the requirements arising from the respective statutory obligations. He shall refrain from any form of misuse of the service, also including in particular any form of technical manipulation.
3. PUB undertakes to enable the proper recording and evaluation of the actions generated via the advertising media provided by Qads and on which the remuneration (CPA, i.e. cost-per-action) is based, and shall not undertake any activity which might negatively affect this or give rise to an infringement. PUB is in particular prohibited from providing false or incorrect information/data, spreading spam or viruses, or exerting any form of influence towards generating fake sales figures through non-human actions or altering or processing the advertising media he receives.
Article4 Duration and termination of the contractual agreement
1. The contractual agreement between Qads and PUB shall remain in force for an indefinite period of time. Either of the contracting parties may ordinarily terminate the contractual relationship in writing (an eMail is sufficient) subject to a notice period of one month to the end of a month
2. Qads shall have entitlement to suspend the contractual agreement with PUB, in other words stop its provision of the contractual service and not make any remuneration for such period (capping) as soon as and as long as PUB seriously infringes essential contractual obligations. This is particularly the case if
- PUB attempts to conclude contractual agreements with new, directly solicited portal operators by means of deception,
- PUB blocks or prevents performance of the contractual service by Qads,
- PUB provides incorrect information/data or has failed to notify Qads of any changes in and to his data,
- PUB spreads spam or viruses or damages the service's technology by any other means,
- PUB himself or through third parties attempts in any form to exert influence to the effect that the generation of real sales data is faked through non-human actions,
- such a large volume of accesses is generated via PUB that Qads sees itself compelled to suspend the service for PUB in order to check the authenticity and quality of said generated accesses,
- the accesses generated via PUB are in their entirety not of the necessary quality, in particular when there is such a volume of accesses within an extremely short period of time without further use after the initial access that it becomes reasonable to suspect that the accesses are not genuine or the generated accesses do not in the vast majority of cases lead to further use,
- PUB attempts to change or process the advertising media received from Qads without having entitlement to do so,
- PUB has damaged the service of Qads by any other means.
Qads shall notify PUB accordingly on having imposed capping, doing so to the correspondingly specified eMail address. The risk of indicating an incorrect eMail address in this respect shall be borne by PUB. PUB shall be given the opportunity to make a statement on its behalf, following receipt of which Qads shall review its decision on the basis of said statement's content and notify PUB of the results thereof.
3. The right of the two contracting parties to extraordinary termination for good cause shall remain unaffected by the above provision. Good cause is deemed to exist in particular if PUB repeatedly infringes essential contractual obligations. Such infringement is in particular to be presumed if and when one of the sample cases referred to in Section 2 of this Article exists.Article 5 Remuneration for PUB
1. In accordance with the contractual agreement PUB shall initially receive from Qads content for its traffic source, in addition to which he shall have a pro-rata share of the remuneration gained via the advertising media. Said remuneration will be calculated on the basis of dynamic cost-per-action models (CPA). It will be influenced by a diversity of factors, among others a) by the number of customers who fulfil the action required for bringing about a remuneration, b) by the definition of the action performed by the respective campaign partner, for example registration within the framework of the advertised product, running through of a tutorial in the advertised product, eMail opt-in with the advertised product, download of the advertised product , in-game purchases, etc., c) the per-action remuneration determined by the campaign partner, d) the quality of the leads, i.e. there will be no remuneration where there is a high probability of manipulation; this is particularly likely if there is good reason to suspect that the activities in question are not of human origin, for example an unnaturally high volume of log-ons/registrations, no further actions after fulfilment of the preconditions for the generating of revenue, identical IP addresses, close temporal connection.
2. PUB shall have entitlement to at least 50 percent of the remuneration received by Qads from the respective campaign partner on the basis of the CPA-based terms and conditions agreed with conclusion of contract between Qads and said campaign partner in respect of the actual, properly generated sales. The calculation and determination shall be at the discretion of Qads and take place on the basis of the criteria referred to in the above. The remuneration will be generated in respect of each customer resulting from the respective integration of advertising media, even if this at a later point in time fulfils the necessary action for a further advertised product via the same advertising medium. The remuneration remaining after deduction of PUB’s share shall be shared between Qads and, as applicable, the respective content creator – to the extent that such creator is involved in the distribution – in accordance with the agreement concluded with the creator in such case. Should PUB also be the creator at the same time, he shall then receive the creator's share in addition to the share to which he is entitled as PUB. PUB may view his revenue statistics via Qads’ ad server by logging into his personal zone.
3. The pro-rata remuneration to which PUB is entitled under the terms specified in the above in respect of the revenue generated with and via the integrated advertising media, programmes and applications shall, as set down in the above, be based on the payments contractually agreed between Qads and its campaign partner. Should PUB be of the opinion that the share of remuneration paid out to him has been incorrectly determined by Qads, he shall notify Qads accordingly in writing, stating the reasons, within 4 days of having received said payment; his failure to do so shall be deemed to signal PUB’s forgoing of any claims in this context. Having received such notification, Qads shall communicate to PUB a written breakdown of the payment in question. Should PUB object in writing to this breakdown as well, he shall have entitlement to have the calculation documents at Qads inspected by an accountant or other person bound to maintain confidentiality. Should the objection in question prove justified, Qads shall bear the costs thus incurred, as shall PUB in the reverse case.
4. Payment of the entitled remuneration shall take place at PUBS request via transfer to a German bank account or cheque within 30 workdays as from receipt of the request for payment, with the act of payment on the part of Qads being decisive in this respect. PUB may submit this request for payment as soon as a payment amount of at least USD 50.00 has accumulated in his favour. Any and all charges arising from transfers of such payments to a bank account outside of Germany shall be borne by PUB.
5. PUB shall have no entitlement to payments for invalid actions, for example those arising from invalid events or given rise to via automated programmes or unlawfully brought about by PUB himself. PUB shall have no claim vis-à-vis Qads to a specific remuneration or minimum level of remuneration or to the allocation of campaigns or particular campaigns or volumes. Should Qads be subject to a chargeback on the part of its contracting partner in respect of the campaign portfolio in question and based on misuse of the operated services, irrespective of in which form but in particular where the generating of automatic inquiries is concerned, Qads shall in such instance likewise have entitlement to effect a chargeback in respect of amounts already paid out to PUB or to reclaim such payments.Article 6 Infringements of law
1. PUB shall bear full responsibility for the content of his website(s) and his distribution and marketing actions, including in particular compliance with the relevant statutory regulations such as, for example, copyright or competition law. PUB shall exempt and hold Qads harmless from any and all claims asserted by third parties in respect of the infringement of such obligations; this shall in particular include the costs of any legal defence against such claims.
2. In respect of the advertising media it makes available to PUB, Qads herewith assures that it has obtained the rights necessary to enable their contractually based application and use, or as the case may be, has done so to an adequate degree.Article 7 Data protection
1. The personal data of PUB as necessary for the order and order handling processes will be stored and kept for such purpose. PUB is aware of this and herewith confirms his agreement thereto and expressly confirms his consent to the gathering, processing and use of his personal data. PUB may revoke said consent at any time with effect for the future.
2. Qads will make the stored data available as far as necessary to the extent that this is required by law or court order. Apart from such cases, Qads will not pass on or disclose stored data.
1. Qads shall be liable towards PUB for damages caused by intent or gross negligence on its part or resulting from fraudulent concealment of defects, and in respect of warranties as to quality or features, and for claims based on product liability law, and for damage to life, limb or health.
2. Qads shall only be liable for other damage arising from its infringement of an obligation, the fulfilment of which is absolutely essential towards achieving the contractual purpose (cardinal obligation).
3. Qads shall only then be liable for the loss of or damage to data and for their recovery/restoration if such loss or damage could not even have been prevented by reasonable data backup/security measures on the part of PUB.
Article 9 Changes to the contract
1. Qads reserves the right to change, suspend or revoke these contractual provisions and the offered service with effect for the future.
2. Should such change, suspension or revocation take place, Qads shall give PUB written notification (an eMail will be sufficient) thereof at least two weeks before such action is to take effect. In such cases, PUB shall have entitlement to extraordinary termination of the contract without having to observe any notice period.Article 10 Final provisions
1. These General Terms and Conditions of Business and each concluded contract shall be exclusively governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
2. To the extent that PUB is a businessman entered in the Commercial Register, the place of jurisdiction for any and all disputes arising from or in connection with the contract in question shall be Würzburg.
3. PUB shall only have entitlement to offsetting if his counterclaims have been finally and conclusively determined by a court of law, are undisputed or have been acknowledged in writing by Qads.
4. No verbal ancillary agreements have been concluded beyond the provisions of this Agreement. Ancillary agreements and supplements or amendments to this contract must be made in writing in order to be legally valid. This shall also apply to any change to or waiver of the written form requirement.
5. Should any individual provision of this contract or any provision added hereto in the future be or become invalid, void or unenforceable in whole or in part, this shall not affect the validity of the contract as a whole. The same shall apply if the Agreement should be found to contain a loophole. In such instance the parties shall replace the invalid, void or unenforceable provision with a legally admissible provision which comes as close as possible to the economic purpose of the original provision or, in the case of a loophole, a provision which takes account of what the contracting parties would have wanted if they had considered the point in question at the time of concluding the Agreement or when a provision was added at a later point in time.
Status May 2018
Additional network terms.