1. Subject and Scope of the Agreement
- TerminApp GmbH, Balanstr. 73, 81541 Munich, Germany ("TIMIFY") offers a solution for online appointment booking and resource management ("TIMIFY"). Registered companies ("Service Providers") can advertise their services to their customers or interested parties with the help of TIMIFY and offer available and online bookable appointments for this purpose ("appointment booker"). In addition, Service Providers can efficiently control and manage all availabilities of their bookable resources.
- Affiliate Partner maintains or generates customer relationships with potential new Service Providers that are eligible for the TIMIFY products, or for TIMIFY's aforementioned business model, and/or intends to refer customer relationships with potential Service Providers.
- These T&C contain conclusively the conditions valid between TIMIFY and the Affiliate Partner for the cooperation and active marketing of TIMIFY through the Affiliate Partner. Regulations deviating from these T&C are only valid if they are confirmed in writing by TIMIFY.
2. Appointment as Affiliate Partner
- Prerequisite for the activity as Affiliate Partner is the approval by TIMIFY. The Affiliate Partner needs to own a valid license of TIMIFY in order to be enrolled or accepted by TIMIFY into the affiliate program. The approval and activity as an Affiliate Partner of TIMIFY is only available to merchants and companies. A claim for approval does not exist. The acceptance of the application for approval takes place by confirmation by TIMIFY.
- With approval, Affiliate Partner receives the right for the duration of the cooperation to promote TIMIFY and to call himself "TIMIFY Affiliate Partner".
- Affiliate Partner shall operate as free and independent contractor. Affiliate Partner is free to determine his activities and business hours within the framework of this contract and procure the necessary operating resources himself. TIMIFY has the right to act by itself as well as by other Affiliate Partners.
3. Rights and obligations of the Parties
- Affiliate Partner protects the interests of TIMIFY and actively promote the sales of TIMIFY.
- The Affiliate Partner does not have its own authority to conclude contracts in the name of TIMIFY.
- Affiliate Partner will receive access to his individual affiliate partner account and individual affiliate link. Via this account, the Affiliate Partner can manage Service Providers he has referred and view the monthly sales generated with the Service Providers. In addition, the Affiliate Partner can call up and view the calls to the individual affiliate URL, the individual conversion rate and the monthly reports and payouts.
- In coordination with TIMIFY, Affiliate Partnerhas the right to coordinate his own advertising presence and the presentation of his own brand(s) with the brands and presentations of TIMIFY in such a way that an optimal address of the market is achieved. Affiliate Partner must always use only the brands and trademarks provided or approved by TIMIFY. Affiliate Partner will not make any changes, additions or adjustments to the trademarks and their components. Trademark and label legal consequences in the case of such a change, addition or adjustment are at the expense of the Affiliate Partner.
- TIMIFY provides the Affiliate Partner with materials and presentation material about TIMIFY. In the absence of an agreement to the contrary, all materials and presentation material are to be returned and/or deleted after termination and/or with termination of the cooperation, insofar as they have not been consumed as intended.
- It is the sole responsibility of the Affiliate Partner to follow all applicable laws, regulations, government decrees, decisions of authorities and the like relating to the protection of intellectual property, marketing of goods and services, unfair business practices any other similar field of regulation that pertain to Affiliate Partner's website or any promotional materials on Affiliate Partner's website. The Affiliate Partner undertakes to process personal data only in accordance with the applicable data protection laws, including but not limited to the General Data Protection Regulation (GDPR). If Affiliate Partner violates any such rules of law or any third party presents any allegations or claims that pertain to information placed on Affiliate Partner's website and promotional materials used by Affiliate Partner, Affiliate Partner will indemnify and hold TIMIFY harmless for any and all costs arising out of any such violations, allegations or claims.
- The involvement of further subcontractors by the Affiliate Partner for the purpose of marketing TIMIFY requires the prior consent of TIMIFY.
- Affiliate Partner is not permitted to comment negatively about or disparage the products or services of TIMIFY or any other person or entity, including without limitation the products or services of a TIMIFY competitor.
- TIMIFY is authorized to cancel admission of an Affiliate Partner or to block its access to affiliate partner account and TIMIFY products where there are grounds to suspect that the Affiliate Partner has breached these T&C. The Affiliate Partner may avert such measures if the Affiliate Partner submits appropriate proof at its own expense.
4. Term and Termination
- The contract underlying these T&C begins with approval as Affiliate Partner by TIMIFY and runs for an unlimited period of time.
- The contract underlying these T&C can be terminated by both parties at any time, with or without cause, by giving the other party written notice.
- Upon declaration of termination, the Affiliate Partner shall no longer market, or advertise TIMIFY, and shall refrain from using the designation "TIMIFY Affiliate Partner".
- In the event that an Affiliate Partner breaches this agreement and TIMIFY terminates it, any accrued and payable commissions owing to the Affiliate Partner shall be forfeited, and TIMIFY shall not be obligated to pay such commissions to the Affiliate Partner. TIMIFY reserves the right to remove abandoned affiliate partner accounts from its system if their balance is equal to or less than € 20 after a six (6) month period of inactivity. In this case any accumulated commissions below €20 (minimum payout threshold) will be forfeited.
5. Commission Payment and Accounting
- The Affiliate Partner receives a commission for each Service Provider referred by the Affiliate Partner who concludes a contract with TIMIFY. The commission for each referred Service Provider is limited to the (contract) duration during which the Service Provider uses TIMIFY.
- The amount of commission per sold product/service are displayed in the respective account of the Affiliate Partner. TIMIFY is entitled to modify the products/services and the amount of commission per sold product/service within the framework of its general pricing policy; continuation of the Affiliate Partner's activities without objection shall be considered as consent to the changes.
- The commission is also granted for repeat, follow-up orders and follow-up orders from Service Providers. However, the Affiliate Partner is not entitled to a commission for contracts that are already concluded by TIMIFY before and without the involvement of the Affiliate Partner. Furthermore, there is no claim to the commission for contracts that are due to the efforts of the Affiliate Partner but have not yet led to binding orders/contracts between TIMIFY and the Service Provider and/or, however, are only concluded after the termination of this contract.
- Self-referrals for affiliate purchases are strictly prohibited. This means that Affiliate Partner cannot refer themselves, their immediate family or the company Affiliate Partner work for by using the affiliate link. Affiliate Partner will not receive a commission on TIMIFY sales in these cases.
- The commission claim is conditional and exists subject to the complete and timely payment of the respective license fee by the Service Provider. If and insofar as the Service Provider does not fulfill its payment obligations to TIMIFY, the commission claim is forfeited for the duration of the non-payment. TIMIFY is solely responsible for sending payment reminders, taking legal action, or taking other measures to collect receivables. TIMIFY is free to take legal or judicial measures against the Service Providers in order to assert and/or collect the claims. In case of success as well as the subsequent receipt of payment, the commission claim Affiliate Partner revives.
- The commission shall also be waived if and to the extent that
- (a) the execution and processing of the contractual services has become impossible for TIMIFY, without TIMIFY being responsible for the impossibility.
- (b) TIMIFY or the Service Provider can effectively withdraw from the contract (rescission, revocation, withdrawal, etc.).
- Commissions already received are then to be returned by the Affiliate Partner and/or can be offset by TIMIFY with due/future commissions.
- All claims for remuneration for activities of the Affiliate Partner are covered by the commission, including all expenses and marketing costs incurred. A further claim for remuneration or compensation does not exist.
- The sales tax in the respective statutory amount shall be added to the commission, if and insofar as such is incurred.
- The Affiliate Partner has to obtain tax and (fiscal) legal advice in connection with the commission settlements himself.
- Accrued commissions will be handled via the third-party revenue delivery platform.
6. Rights and promotional materials
- TIMIFY is exclusively entitled to all rights to TIMIFY. All documents and information issued or provided by TIMIFY are and remain the property of TIMIFY. The production of copies of the documents and information as well as the processing, modification, translation, conversion and/or further development are only permitted if this is absolutely necessary for the use of the contractual services and TIMIFY has given its prior consent.
- The Affiliate Partner will neither attack the industrial property rights and the know-how of TIMIFY himself nor have them attacked by third parties, or support third parties in attacking in any form. The Affiliate Partner will not register the company name, the trademarks or other signs of TIMIFY as part of his company in the commercial register or as part of a domain or use them in any other way for other purposes than those of this contract.
- TIMIFY grants the Affiliate Partner, for the duration of the contract, the revocable right to use the trademarks and other signs of TIMIFY for the purpose of distribution and marketing of TIMIFY in compliance with the instructions of TIMIFY. In doing so, the Affiliate Partner must refer to its legal position as a cooperation partner.
- Affiliate Partner will not bid in their pay-per-click campaigns on keywords such as TIMIFY, TIMIFY.com, TIMIFY coupons, TIMIFY discounts, www.TIMIFY.com and / or any misspellings or similar alterations of these - be it separately or in a combination with any other keywords - and do not direct the traffic from such campaigns to their own website prior to redirecting it to the TIMIFY website. Such behavior will be considered to be in material breach of these terms and conditions.
- Copyrights and other protective rights as well as property rights to TIMIFY (including the source and object code, all components, including all new releases, upgrades, updates and documentation) are exclusively entitled to TIMIFY in relation to the Affiliate Partner as well as the Service Providers.
- In any advertising or direct marketing messages sent by the Affiliate Partner, the Affiliate Partner must identify itself and its contact details. Where the Affiliate Partner processes personal data relating to identified or identifiable individuals, the Affiliate Partner undertakes to provide to data subjects any information required in the applicable data protection legislation (including but not limited to information referred to in articles 13 and 14 of the General Data Protection Regulation (EU) 2016/679). The Affiliate Partner shall especially provide to the data subjects information on how to exercise their rights under the applicable data protection legislation.
- The parties shall be liable without limitation in case of intent, fraudulent intent and gross negligence as well as in case of personal injury.
- TIMIFY is liable for damages in the event of a slightly negligent breach of an essential contractual obligation (cardinal obligation) limited to the amount of the foreseeable damage typical for the contract. In this case, TIMIFY shall not be liable for lost profits, indirect damages, consequential damages and claims of third parties. Cardinal obligations within the meaning of this provision include, in addition to the main contractual obligations, obligations whose fulfillment is essential for the proper performance of the contract and on whose fulfillment the other may regularly rely.
- For the rest, any liability of TIMIFY is excluded.
- Affiliate Partner hereby agrees to indemnify and hold harmless TIMIFY and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that TIMIFY's use of the Affiliate Partner trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by Affiliate Partner herein, or (iii) any claim related to Affiliate Partner's site, including, without limitation, content therein not attributable to TIMIFY.
- The Affiliate Partner is obligated to treat all confidential information and business secrets, which the Affiliate Partner learns in connection with the contract underlying these T&C and its execution, as strictly confidential, to use them exclusively for the fulfillment of the contract and not to disclose them to third parties. Confidential information in this context is information that is marked as confidential by TIMIFY or whose confidentiality results from the circumstances, regardless of whether it has been communicated in written, electronic, embodied, or oral form. This includes in particular documentation, calculation bases, marketing strategies, presentations, and plans of TIMIFY, as well as source and object codes and process descriptions of TIMIFY.
- For each case of violation against the obligations of secrecy and confidentiality, Affiliate Partner has to pay an appropriate contractual penalty, the amount of which is to be determined by TIMIFY and, in case of dispute, is to be reviewed by the competent court for its appropriateness unless Affiliate Partner is not responsible for the violation of the obligation.
- The Affiliate Partner cannot transfer the rights and obligations from the contract underlying these T&C to third parties without the prior written consent of TIMIFY.
- The Affiliate Partner will inform TIMIFY immediately if the current management or participation or control circumstances at the Affiliate Partner change due to new managing directors joining or leaving the company or if the circumstances at the Affiliate Partner change significantly in any other way.
- Deviating terms and conditions of the Affiliate Partner are not recognized unless TIMIFY expressly agrees to their validity in writing. Changes and additions to this agreement must be made in writing to be effective. This also applies to the waiver of the written form requirement.
- The law of the Federal Republic of Germany shall apply. The exclusive place of jurisdiction for all disputes is Munich. This shall not apply if another exclusive place of jurisdiction is established on the basis of mandatory statutory provisions.
- Should individual provisions of these T&C be or become invalid and/or contradict the statutory provisions, this shall not affect the validity of the remaining provisions of the T&C. The invalid provision shall be replaced by the contracting parties by mutual agreement with a provision that comes as close as possible to the economic purpose of the invalid provision in a legally effective manner. The above provision shall apply mutatis mutandis in the event of loopholes.