Status: June 1, 2010
Bigpoint GmbH (hereafter referred to as “Bigpoint”) operates an Internet platform at mediapartner.bigpoint.net (hereafter referred to as “platform“) which offers registered members (hereafter refered to as “publishers” the possibility to participate in the Bigpoint Affiliate Program.
The object of the Bigpoint Affiliate Program is to encourage media service providers to support Bigpoint through the sale of goods and services on a results basis. Application and registration as well as use of the platform are basically free for all publishers.
2. Scope of application
2.1. The publishers’ participation in Bigpoint Affiliate Programs is regulated by these Terms & Conditions. They also regulate the legal relationship between the publishers and Bigpoint.
2.2. Any terms and conditions of the publishers that contradict these Terms & Conditions are invalid unless their validity is clearly agreed upon by Bigpoint and the publisher. Contradictory assertions made by the publisher based on their terms and conditions are hereby expressly forbidden.
2.3. Subsidiary agreements, modifications or supplementation of these Terms & Conditions and of the contract between the publisher and Bigpoint must be made in writing in order to be legally binding.
2.4. Bigpoint employees, representatives or contracted agents are not authorized to make verbal agreements or promises with or to the publisher.
The following defintions apply to these Terms & Conditions and to the Bigpoint Affiliate Program as a whole:
3.1. User: Every natural person who knowingly and deliberately visits the publisher’s or Bigpoint’s website without being coerced or deceived and without receiving compensation from the publisher or any third parties.
3.2. Click: A click is considered valid if the user knowingly, deliberately and voluntarily clicks on a Bigpoint Affiliate Program hyperlink on the publisher’s website, thereby being redirected to the linked Bigpoint website. Repeat clicks, or multiple clicks made by the same user in close succession and within a short period of time on different hyperlinks, are invalid. Clicks generated as a result of coercion or because of a bonus or incentive are invalid unless previously sanctioned in writing by Bigpoint. If no written agreement exists, clicks generated as a result of such actions shall not be considered valid. Valid clicks are recorded and verified by the Bigpoint Tracking System and their validity judged at Bigpoint’s discretion.
3.3. Account: Legitimate access to the platform granted to a publisher once they have registered and correctly provided all necessary information including their main domain name and their website’s content category.
3.4. Lead: A lead is valid when the user makes a valid click and then willingly, deliberately and knowingly performs a certain pre-defined action (hereafter referred to as a “qualified action“). Valid leads are detected and defined as valid in the same way as valid clicks; the performance of the qualified action is recorded and verified by Bigpoint and judged valid at their discretion.
3.5. Sale: A sale is valid when the user makes a valid click (see 3.2) and thereafter willingly, deliberately and knowingly performs a certain pre-defined action (hereafter referred to as a “qualified action“). Valid sales are determined in the same way as valid leads; user requests for cash items or services are recorded and verified by Bigpoint’s system and judged valid at their discretion.
3.6. Hyperlink: Is a link provided by the platform for the publisher’s use. This link must be incorporated in its original form into the publisher’s website and clearly labelled as a link to the Bigpoint website.
3.7. Pay-Per-Lead: The publisher is entited to payment for leads generated as a result of visitors to the publisher’s website being redirected to the Bigpoint website via a hyperlink on the publisher’s website. Payment consists of a fixed fee per valid lead.
3.8. Pay-Per-Sale: The publisher is entitled to payment for goods or service sales generated as a result of visitors to the publisher’s website being redirected to the Bigpoint website via a hyperlink on the publisher’s website.
3.9. Publisher website: The website is the publisher’s Internet presence in all available languages. The website is located at the main domain name provided upon account registration and includes the content approved by Bigpoint. Also included in the definition of the website are any other domain names or subsites, should they have been specified as belonging to this main domain in the account information and have identical content.
3.10. Bigpoint website: Bigpoint’s Internet presence, which can be found at the registered URL and on which the online goods and/or services are advertised and sold and to which the hyperlink to be used by the publisher in accordance with the Terms & Conditions of the Bigpoint Affiliate Program leads.
4. Bigpoint Affiliate Program registration
4.1. With their participation and the registration of an account, the publisher recognizes these Terms & Conditions.
4.2. It is the publisher’s responsibility to ensure that the information they provide to Bigpoint is correct and comprehensive. The publisher must make sure that their registration information and the information in their account is always up-to-date. In the case of multiple accounts, the publisher may not provide differing or contradictory personal information.
4.3. Websites operated by the publisher in languages other than those agreed upon are excluded from participation. Registrations generated from such websites are not considered valid under the terms of the Bigpoint Affiliate Program; Bigpoint is not obligated to inform partners of such registrations.
5. Contract conclusion
5.1. An individual contract regulating the providing of services to support the commision-based online sale of goods and services as specified in these Terms & Conditions and the terms of the Bigpoint Affiliate Program is concluded between Bigpoint and a publisher.
5.2. In posting their website’s candidature to Bigpoint, publishers express their intent to participate in the Bigpoint Affiliate Program. Publisher participation cannot include any conditions or reservations which differ or deviate from those of the Bigpoint Affiliate Program. The publisher shall be bound by their offer of participation for a period of four weeks after their declaration of intent, in the form of an application, was received by Bigpoint. Bigpoint may accept the offer at any time during this period; if Bigpoint does not accept the application during this period, this constitutes implicit rejection. No claims can be brought against Bigpoint by the publishers in the event of this occurrence.
5.3. Bigpoint reserves the right to accept or reject any applying publisher. In the event of a rejection, publishers are not entitled to ask for the cause or justification. In the event of their acceptance, publishers do not owe Bigpoint any form of participation or effort.
5.4. In the event of acceptance, publishers are entitled but not obligated to take steps to promote the Bipgoint Affiliate Program within the scope of these Terms & Conditions. Bigpoint has the right to expect the publisher to fulffill their contractual requirements. Should the publisher be required to take certain actions and fulfil these requirements, they must be fulfilled within the scope of the contract, and are to be compensated accordingly.
5.5. After their registration, an interest-free account shall be opened for the publisher. Any and all payments due to the publisher will be deposited into this account.
5.6. Bigpoint is entitled to further develop the platform and to adjust the platform to technical innovations as appropriate.
5.7. Bigpoint is also entitled to delegate the performance of certain or all contractual services to third parties or contracted agencies.
6. Publisher’s obligations to Bigpoint
6.1. Publishers must configure their website so that only valid leads and sales are generated on the Bigpoint website, and so that completed transactions can be successfully recorded by the Bigpoint website. This also applies to all search engine entries, directories and link lists belonging to third parties.
6.2. Bigpoint shall provide the publisher with the hyperlinks and URLs required to participate in an Affiliate Program.
6.3. The publisher is not allowed to modify the HTML code or banners provided by Bigpoint.
6.4. The advertising material provided may only be used on the publisher’s website.
6.5. The advertising material provided may only be used within the context of participation in the Bigpoint Affiliate Program.
6.6. Forwarding any information or advertising material to third parties is not permitted and constitutes a violation of these Terms & Conditions.
6.7. The use of names and copyrighted brands and trademarks, as well as the use of a logo or company belonging to Bigpoint, is only permitted with Bigpoint’s express permission.
6.8. The publisher will only use names and brands belonging to Bigpoint or words which are similar or related to Bigpoint names and brands (please see the list in Appendix 1) as keywords for the purposes of search-engine management or optimization with Bigoint’s prior consent.
6.9. The publisher agrees to design their website in such a way as to avoid infringing on the intellectual property rights and copyrights of third parties and any and all applicable laws, especially those relating to copyright.
6.10. Should the publisher send e-mails containing advertising for Bigpoint or Bigpoint services, they must comply with the legal standards in place (especially those prohibiting unfair business practices e.g. § 7 Abs. 1-3 UWG) as well as recent court decisions (e.g. the ruling of the BGH on 3.11.2004, Az. I ZR 81/01).
6.11. The publisher is responsible for ensuring the accuracy and integrity of their registration information. Should changes to the publisher’s personal data occur, the publisher must inform Bigpoint of these changes in writing without delay. By registering, the publisher accepts these Terms & Conditions.
6.12. The publisher is obligated to include their contact details and legal information in their business operations in accordance with German law (§ 6 TDG).
6.13. The publisher agrees to ensure that their website comply with legal standards regarding data privacy and customer protection. Violent, sexually explicit or pornographic content as well as discriminatory statements or images, especially those concerning gender, race, heritage, nationality, handicaps, religion, sexual orientation, age, etc. are especially proscribed, both on the publisher’s website and in the context of the Bigpoint Affiliate Program.
6.14. The website must not be designed in such a way as to compromise the reputation or perceived value of Bipgoint goods or services, of the Bigpoint brand or of Bigpoint’s business operations.
6.15. In particular, Bigpoint has the right the demand that the hyperlink be moved when its location is judged likely to compromise the reputation or perceived value of Bigpoint goods or services, of the Bigpoint brand or of Bigpoint’s business operations.
6.16. The aforementioned regulations especially apply if the publisher website includes links leading to the Internet presences of third parties.
6.17. Bigpoint shall provide the necessary hyperlinks and URLs for each Co-Branded landing page. The publisher is only permitted to modify the code or banners provided with Bigpoint’s express permission, and may only use them on their own website. Forwarding them to third parties is forbidden. The publisher may insert the hyperlink to the Bigpoint site where they want and as many times as they choose.
6.18. Bigpoint has the right to use the name, brands and logos of the publisher as a reference for the purposes of customer and user acquisition.
6.19. The publisher is the only party responsible for the marketing, sale and delivery of products which are sold with Bigpoint’s assistance. This includes all support and documentation.
6.20. Bigpoint must be informed of any defects or interruptions in writing either by fax or via e-mail.
7. Payment process
7.1. There is a right to payment when a valid lead or a valid sale is successfully transmitted to Bigpoint in accordance with these Terms & Conditions.
7.2. Bigpoint guarantees the publisher‘s participation in pay-per-lead affiliate programs, pay-per-sale affiliate programs and/or a combination of the aforementioned program types.
7.3. The publisher is entitled to payment only when valid clicks, leads or sales were generated in their account in accordance with these Terms & Conditions.
7.4. Clicks not generated via hyperlink and/or on the Bigpoint website do not entitle the publisher to remuneration. The publisher is also not entitled to remuneration for clicks that are automatically generated by technical contrivances, for those which are generated as a result of force, incentives or deceit, or for induced clicks.
7.5. All valid clicks shall be credited in the course of the daily publisher account evaluation.
7.6. All remuneration for the pay-per-lead affiliate programs and the pay-per-sale affiliate programs as well as combinations of the aforementioned programs is subject to points 7.3 and 7.4 respectively. All leads or sales shall be credited upon fulfilment of the conditions of the Bigpoint Affiliate Program. Payment is not indicative of recognition of fulfilment of affilate program conditions or of the validity of leads or sales. In the case of pay-per-sale affiliate programs with percentage-based remuneration, payment is calculated based on the net sale price of the good or service, not including extra costs and any applicable tax.
8. Payment methods
8.1. For the purposes of payments in the context of all Bigpoint Affiliate Programs made in accordance with clause 6 and for the purposes of all publisher accounts, Bigpoint ensures the publisher access to the Bigpoint Online Reporting System via an affiliate interface thanks to which the publisher can verify their own monthly payment.
8.2. Publisher payment occurs 51 days after the end of the billing period (biling period = one calendar month). For example, the publisher’s payment for the May 2009 billing period is deposited on July 21, 2009. The payment for June 2009 is deposited around August 21, 2009, etc. If the payment due is under €50.00 net, the publisher will only receive payment once the total sum they are owed is at least €50.00.
8.3. Bigpoint payments are made in accordance with the appropriate tax legislation. Interest is not complied on the balance of the publisher account.
8.4. Payment may occur without conclusive prior verification as to the validity of the clicks, leads or sales as defined by the conditions of the Bigpoint Affiliate Program and/or these Terms & Conditions. Should the generation of a click, lead or sale have occurred as a result of manipulation or fraud, or in some other way constitute an infringement of the conditions of the Bigpoint Affiliate Program or of these Terms & Conditions, or should for any other reason a valid click, lead or sale be found invalid according to these Terms & Conditions, Bigpoint has the right to retrieve the payment (or request that the payment be reimbursed) within a 12-week period. Bigpoint also reserves the right to demand the reimbursement of a payment should they be able to prove that no valid click, lead or sale, and therefore no right to remuneration, existed.
9. Contract duration/Contract termination
9.1. The publisher account for the Bigpoint Affililate Program is provided for an indefinite period.
9.2. The contract regulating the provision of services for the support of Bigpoint through the online promotion and sale of goods and services on a commission basis concluded between Bigpoint and the publisher is valid for one calendar week following contract conclusion, but automatically becomes invalid upon termination of the Bigpoint Affiliate Program. It is automatically extended by one additional week, (but not beyond the duration of the Bigpoint Affiliate Program), if the publisher does not properly cancel the contract in writing. Termination occurs 10 days after written cancellation has been received.
9.3. Cancellation must be made in writing. Bigpoint, however, may also definitively cancel the contract by closing the publisher account.
10. Publisher account closure
10.1. Bigpoint has the right to close the publisher account and inform the publisher of the closure if the publisher does not actively take part in the Bigpoint Affiliate Program for three consecutive months and has not launched any campaigns since then, or if the publisher has generated little or no returns in the past 12 months (if the total generated returns are under €25). The publisher must be made aware of account closure.
10.2. Both Bigpoint and the publisher have the right to extraordinary termination of the contract.
10.3. Should serious breaches of these Terms & Conditions be persistently made by the publisher, especially with regards to clause 6 of these Terms & Conditions, Bigpoint has the right to extraordinary termination of all contracts regulating the duties of the publisher in the context of the Bigpoint Affiliate Program without notice. Once cancellation has occurred, Bigpoint has the right to close the publisher account. Closure of the publisher account also constitutes conclusive evidence of extraordinary termination.
10.4. Bigpoint is not required to inform the publisher of the closure of their account in an official manner.
10.5. If a publisher account is closed and the publisher is due remuneration of €50.00 or more, this payment shall be made. In the event that the publisher account has been closed and the publisher is due remuneration of under €50.00, no payment shall be made. In such cases, the publisher is not entitled to any payment.
10.6. The publisher is obligated to remove all Bigpoint Affiliate Program hyperlinks from any and all their websites as soon as the contract termination has occurred.
10.7. Once a contract has been terminated, absolutely no payments will be made, even if the publisher neglects to remove any hyperlinks from their website despite their obligation to do so.
10.8. A publisher whose account has been closed is not permitted to register again for the Bigpoint Affiliate Program. Should the publisher choose to ignore this regulation, they are obligated to provide Bigpoint with compensation. Bigpoint is entitled to claim a maximum contractual penalty equivalent to the amount of commission paid out to the publisher by Bigpoint in the past 12 months.
11. Liability/Limitation of liability
11.1. Bigpoint neither guarantees nor are they liable for the correctness and/or integrity of publisher website content.
11.2. The publisher releases Bigpoint from any and all liability regarding claims to the effect that publisher advertising infringes upon applicable laws or the rights of third parties which could be brought against Bigpoint by third parties.
11.3. In accordance with § 6 Abs. 1 MDStV and § 7 TMG of German law, Bigpoint may be held liable only to insofar as they or their employees, representatives or contracted agents are guilty of wilful or gross negligence.
12. Data privacy
12.1. Bigpoint shall only save the publisher‘s personal data for the purpose of carrying out or modifying the contractual obligations. Only the name, address, telephone/fax number, e-mail address and bank account information, publisher domain name and relevant Affiliate Programs are saved. Any forwarding of this information to third parties is only permitted if it occurs for the purposes of carrying out and processing the contractual obligations.
12.2. Bigpoint treats all publisher personal data in accordance with the relevant data protection standards.
12.3. Additionally, personal data is only collected, processed or used when it is necessary in order to make it possible for the user to receive services (hereafter “User data”) or to remunerate fulfilled contractual obligations (hereafter “Billing data”).
13. General clauses
13.1. Bigpoint reserves the right to adapt or modfy these Terms & Conditions at any time. The publisher must however be informed in writing of any and all modifications. If the publisher does not reject these modifications in the proper form and within two calendar weeks of receiving written notice of the modifications, the modifications will be considered to have been accepted by the publisher. If the publisher does reject these modifications, they must do so in writing and within the deadline. Bigpoint shall reiterate the deadline and written form requirements in the notice of modification.
13.2. Should the publisher be a merchant according to the definition of the the German Commercial Code, (Handelsgesetzbuch) it is agreed that the court of jurisdiction for all claims and actions arising as a result of this contract is Hamburg.
13.3. All contracts concluded between Bigpoint and the publisher are subject to the laws of the Federal Republic of Germany, the United Nations Convention on Contracts for the International Sale of Goods does not apply.
13.4. Should any provision in these Terms & Conditions be or become invalid, the remaining provisions of this agreement shall remain valid. A reasonable clause which is as close as possible to what both contracting parties desired should replace the invalid clause.
Search-engine keywords – BIGPOINT:
F1Manager Dark Orbit
IceFighter Germanys Next Topmodel
Managergames Hockey Gladiatoren 2
Managergames Soccer Robofighter
Land of Destruction Fragoria
Seafight Gladius 2
The Mafia Glorykings