General Business Conditions for Merchants (GBC) - 01.12.2005

1.1 zanox maintains a service in the Internet that enables other enterprises to promote trade with all types of goods and services within a network (hereinafter “ zanox XS”), which is administrated by zanox. The system offers functions for the product presentation and motivation of the sales partners, as well as providing reporting and controlling functions.

1.2 Merchants, partners (also called “affiliates”), end customers and zanox, as well as in special cases commissioned cooperation partners (also called “zanox partners”) participate in zanox XS. Merchants are enterprises that market and sell their products and services by means of advertising material (banners, pictures of products, content, search boxes, links, etc.). Partners are natural and legal persons who make space on their homepage, website or e-mail, etc. (hereinafter advertising space) available to merchants for the marketing of all types of products and services. Merchants and partners are also referred to collectively as “participants”. End customers are natural and legal persons who purchase goods and services of all kinds in the Internet. zanox partners are commissioned third parties who can be commissioned with services round and about zanox XS.

1.3 The merchant maintains an online offer for the sale of its goods and services. The merchant requires advertising space to promote the sale of its good and services.

1.4 zanox offers the merchant the advertising space (space on homepages, websites, newsletters or e-mail, etc.) of partners registered at zanox XS. Partners entrust this advertising space to zanox indefinitely when they register. Agreement to the “Conditions of Participation for Partners“ is a prerequisite for the registration of partners. Partners, who have registered for specific merchants, however do not have any claim to agency with merchants or to participation in specific advertising campaigns. On the contrary, the merchants either accept the advertising space offered to them via the web interface or they decline it.

1.5 zanox sets up a technical connection between the selected advertising space of the partners and the merchant. By means of this technical connection, zanox records and registers the business deals and other activities between merchants and end customers, which materialize via the advertising space of the partners.

1.6 No contractual relationship between merchants and partners arises through participation in zanox XS. However, the merchant is free to agree separate general business conditions (conditions of participation specific to projects) with the partners, in so far as these do not contradict this “General Business Conditions for Merchants” or the “Conditions of Participation” for Partners.

1.7 Remittance of a signed and completed order/contract is effective as recognition of these General Business Conditions for Merchants. A detailed description and the content of the zanox services that have been booked follow from the explanation in the order itself. The agreed order is expressly part of the contract.

2.1 Technical realization, installation and configuration, as well as operation of the zanox services that are used according to order by zanox. This includes particularly

• systematic, quality-assured operation of hardware and software,
• guarantee of availability, in so far as this is within the powers of zanox,
• provision of assistance immediately and without delay if faults occur,
• support for tracking integration,
• systematic documentation of transactions,
• preparation of access statistics and transaction reports,
• provision of an administration interface,
• provision of functions, such as condition manager, media manager, partner manager,
• administration of partners’ accounts,
• monthly payment to partners,
• support (contact persons for the questions of merchants and their partners)

2.2 zanox licences the zanox services that have been booked according to the order to the merchant for the duration of the contract ("Licence"). The parties are agreed that the aforementioned licensing includes in particular all updates, adaptations and alterations to the booked zanox services that are developed, produced and implemented by zanox within the duration of the contract. The merchant may only use the licence within the scope that is necessary in order to fulfil the contract.

2.3 zanox offers advertising space of the registered partners to the merchants for selection.

2.4 After the merchant has placed an order (via the online administration area), zanox sets up a technical connection between the advertising space selected by the merchant and the merchant’s website by means of linking. The merchant may revoke the use of a link to his website on other advertising space at any time, even belatedly. zanox will remove the link between the merchant’s website and the advertising space in this case.

2.5 zanox records and registers business deals and other activities between merchants and end customers, which materialize via the advertising space of the partners.

2.6 zanox trains employees of the merchant or agency in the setting up and operation of zanox XS technology for the start of operations (entry clearing to the network). zanox provides the merchant with the necessary technical support within the duration of the contract.

2.7 zanox pays the partners and settles the accounts with regard to the partners.

2.8 All further developments or special requirements of the merchants that are not described in this contract are carried out on a project basis. The merchant will convey its requests and wishes to zanox in writing for this and obtain a corresponding offer. Thereupon zanox will send the merchant a project plan and cost estimate which the merchant will in turn release, sign and return to zanox. The exact approach of each individual project will be discussed explicitly from case to case and mutually agreed. zanox is free to decline special requirements requested by the merchant, particularly due to technical or economic reasons at its own discretion.

3.1 The merchant will run, administrate and promote the partner programme professionally.

3.2 The merchant will check the advertising space of the partners registered at zanox that it is offered. The merchant will accept these offers or decline them without indicating the reasons for this via the web interface. The merchant can exclude a partner at any time with immediate effect or have it excluded by zanox by fax or by e-mail.

3.3 The merchant can set and alter the conditions for partners at its own discretion. The merchant will inform zanox of any alterations 30 days in advance in writing or by e-mail.

3.4.1 If the merchant uses the billing models “pay per sale” and/or “ pay per lead” and/or “pay per lifetime”, the merchant guarantees that this is recorded and paid via the zanox XS system. Recording must be guaranteed with or without cookies. The merchant should limit references to telephone ordering possibilities on its website to the minimum necessary, because otherwise no recording of the advertising performance can take place.

3.4.2 If the merchant alters the tracking procedure without prior agreement with zanox so that recording no longer works correctly (tracking breakdown), then the breakdown will be compensated retrospectively with respect to the partners on the basis of the average earnings of the four weeks prior to the breakdown. Depending on the scope of the rectification, zanox reserves the right to charge the merchant for the administration expenses of up to a maximum of one working day according to the valid price list.

3.5 The merchant will process business deals which have been successfully generated via zanox XS without delay, at least, however within the maximum processing time of 12 weeks. An automatic confirmation of the transactions takes place after this compensation period has expired.

3.6 The merchant will place a link on its website to attract further partners.

3.7 The merchant guarantees that its subject matter, advertising material, product data and websites and the goods or services sold via them that are provided for participation in zanox XS do not contravene legal regulations. Particularly, subject matter, advertising material, product data and websites which violate the rights of third parties – e.g. copyrights, name or trademark rights, – which pose a threat to state security, glorify violence, are of a pornographic nature, are liable to corrupt the young or may not be made available to the public are not permitted. Furthermore, all inputs, which contain viruses, Trojan Horses or other similar programmes, that are capable of damaging, secretly capturing or deleting data or systems are not permitted. The merchant makes zanox exempt from the claims of third parties, if zanox is claimed against by third parties because of the aforementioned unauthorized material.

3.8 The merchant takes into account that the e-mail addresses and possibilities to contact partners that are made available to it in the framework of this cooperation must only be used within zanox XS and according to the spirit of zanox XS. Merchants may only contact partners within their own programme. A cross-reference to other programmes/campaigns is not permitted.

4.1 Setup Fee

4.1.1 A setup fee for the licence, installation and implementation (setup) of a zanox XS module, which is immediately due with the signing of the contract at the latest is agreed according to the order.

4.2 Deposit

4.2.1 A credit – hereinafter “deposit” – is due for payment into the merchant account before entry clearing (in the zanox network) for the operation of a zanox XS module and the resulting payments due for qualified transactions of the partners. No interest is paid on this deposit and it cannot be claimed back. The merchant may, however, utilize and consequently use up the deposit at any time as a campaign budget for branding or traffic campaigns (ppv, ppc) at its own discretion, even deviating from the condition model defined in the contract.

4.2.2 After a transaction has been confirmed, the transferable credit note of the commission is effected on the partner’s account. In the case of rejection (cancellation) of a transaction by the merchant a negative booking operation onto the merchant’s account is effected free of charge.

4.2.3 Orientation of the accounting for the merchant account to monthly invoicing (dynamically adapted to the actual demand). Follow-up invoice(s) in the case of the following modes of payments:

a) Automatic debit transfer: at 25% remaining credit
b) Invoice: at 50% remaining credit
The merchant account must always show a positive deposit to keep the programme active.


4.3 Transaction Fee

4.3.1 On maturity, the transaction fees are deducted by zanox from the deposit on the merchant account for each tracking transaction (view, click, lead, sale) according to the condition model and services that are booked individually, according to the order (e.g.: development, consulting, adserving).

4.3.2. Transaction fee maturity:
a) zanox withdraws the performance-related compensation that is owed to it (corresponding to the conditions model) and the transaction fees according to the order from the merchant account.
b) Transactions fees are based on the level of compensation (payment rate) from the merchant to the partners per transaction. Transaction fees according to the order of the compensation to the partners are due for payments above 1 EUR. Transaction fees of 0.30 EUR (minimum transaction fee) are due for payments below 1 EURO, except for view and click compensation.
c) Claims for compensation from zanox according to numbers 4.2 to 4.3 are due on the following conditions:

• The merchant has closed a business deal on the basis of the advertising space
• given over to it by zanox;
• the business deal has been successfully recorded by zanox XS (by means of a cookie or session parameter that is valid for 30 days on the computer of the end customer);
• the merchant has confirmed the successful business deal to zanox within the maximum compensation period.

4.4 Maintenance Fee

4.4.1 Maintenance fees are charged by zanox for services booked according to the order and are deducted monthly from the deposit and shown separately for application hosting, operation, maintenance, further development of the services and technical support.

5.1 zanox guarantees systematic installation and maintenance of the service described in 1 and 2.

5.2 zanox guarantees that the zanox products selected by the merchant have the quality that is agreed in the contract at the time of transfer of risk, if they are used as specified. The quality of the products that is agreed in the contract is specified in full in the information made available by zanox. Public statements regarding zanox products only form part of the contractually agreed quality, if they are confirmed expressly and in writing by zanox. The details and specifications that are contained in the information from zanox are not valid as a guarantee of the quality of the products or as any other guarantee unless they are expressly indicated as such in writing. The term of warranty is 12 months starting from the point when the selected zanox products are made available.

5.3 zanox will undertake all appropriate, economically viable measures to restore full availability of the zanox XS as quickly as possible in the event of faults in the technical processing of the contract between the merchant and zanox, and also the partners.

5.4 zanox does not guarantee that sales will be generated via zanox XS. zanox also does not guarantee the correctness and completeness of the content of information and explanations given by partners, for the solvency of participants in zanox XS, for the quality and serviceableness of the goods and services of merchants who participate in zanox XS for the suitability for a specific purpose, nor that these goods and services do not violate the rights of third parties.

6.1 The parties are liable for deliberate or grossly negligent damage or for damage due to injury to life, to the body or to health. In the case of slight negligence, the parties are only liable, if obligations that are essential to the contract (cardinal obligations) are concerned, however limited to typically foreseeable damage, to a maximum of up to the level of one month’s turnover via zanox.

6.2 zanox is not responsible for the contents of websites of third parties in the case of direct or indirect links from its homepage to outside websites (“hyperlinks”). zanox hereby declares that no illegal subject matter could be detected on the sites that were to be linked at the time when the link was set. zanox has no influence on the current and future state, subject matter or the copyrights of the linked / connected sites. For this reason, zanox hereby expressly distances itself from the contents of all linked / connected sites that have been altered after the link was set. If aware of correspondingly illicit contents, zanox will prevent the use of the illicit subject matter in so far as this is technically possible and reasonable.

6.3 zanox is not responsible for damage that occurs in connection with faultiness of software and hardware of third parties or that arises because of lack of availability of the Internet or if the Internet is unable to function faultlessly.

6.4 The parties make each other exempt from claims from third parties, if their demands are made against one party for a poor service or other violation of obligations of the other party.

6.5 The merchant makes zanox and partners exempt from all damage compensation claims, liability claims, cautions and injunction declarations of third parties, as well as from the costs that are connected with these when these are caused by the advertising, advertising material, product data or other procedures of the merchant. This particularly applies to violation of trademark, licence or competition rights or commercial protection rights of third parties.

7.1 The parties are obliged to keep secret all company or business information and knowledge of the other party to the contract that is made accessible in connection with this contract and that has been indicated as confidential or in other circumstances that are recognizable as business or company secrets for an indefinite period of time and to continue to keep them secret after the end of the contract. This information may neither be recorded, passed on nor made use of – in so far as this is not to fulfil the purpose of the contract.

7.2 The parties will ensure by means of suitable contractual agreements with their employees and representatives that they are also prohibited from any personal utilization or unauthorized recording of such business or company secrets. Each party to the contract is obliged to contact the other party to the contract, if any doubt arises as to whether any information in concrete individual cases is to be treated as confidential or not. Information must be treated as confidential where there is any doubt.

8.1 zanox grants the merchant the personal, non-transferable and non-exclusive right to use the technology, business model, know-how and trademarks of zanox for the fulfilment of the purpose of this agreement. This right of usufruct is limited to the zanox products that have been selected and ends with the termination of this agreement.

8.2 The merchant is not authorized (i) to lease, loan, resell or to pass on a zanox product in any other way, (ii) to use a zanox product to develop another product, (iii) to activate and to use product functions, for which it does not hold a licence, (iv) to grant a sub-licence for these products to third parties or provide access to them or use of them for third parties. The merchant informs zanox, if unauthorized access or use of a product by third parties becomes known to it.

8.3 All intellectual rights of ownership and legal titles to zanox products remain the property of zanox and/or its licensers and no shares or rights of ownership pass to the merchant. The merchant has no right to alteration (even for purposes of fault rectification), adaptation or translation of zanox products or for the development of works that have been derived from them. The merchant has no claim to the source code for zanox products. Recompiling (this also includes recompiling to guarantee inter-compatibility), redevelopment and other source code derivations of the product are not permitted with the exception of expressly authorized actions.

8.4 If insolvency proceedings are filed on the assets of the merchant and the insolvency consultant declines the fulfilment of the agreement, the rights of usufruct that are connected with the contract (e.g. the use of the network, the contacts and the database, the use of contract trademarks, technology, business model, know-how and the zanox trademarks) are passed over to zanox, without the necessity of further legal proceedings.

8.5 Once the contract has been closed, zanox and the partners, which are selected by the merchant, receive a non-exclusive, non-transferable right to use the trademarks and other material made available to them by the merchant in order to fulfil the purpose of this agreement. This right does not include the entitlement to alter or process the surrendered material for any other purpose or to pass it on to third parties, unless the merchant grants permission for this in advance.

8.6 All advertising material must be released in so far as this concerns textual and/or pictorial trademarks, as well as any other symbols of each of the other parties. The release may also take place by long-distance data transmission. This must be issued as quickly as possible and may only be refused for an important reason.

9.1 The contract has a duration period of twelve months. The contract is extended automatically for a further six months at a time, if neither of the two parties terminates it with one month’s notice to the end of the month.

9.2 The right of both parties to terminate the contract for an important reason remains unaffected. An important reason applies in particular, if

• a party repeatedly violates an essential contractual obligation despite a written warning, does not remedy a continuing contractual violation within an appropriate period of notice or does not eliminate the consequences of this;
• the other party is liquidated, disposed of or liquidates its business activities or essential parts of these, becomes insolvent and/or is sequestered or is subject to comparable extensive alterations to its financial position, power to act or business arrangements or starts insolvency proceedings on the assets of the other party respectively, such a claim is rejected due to lack of assets or the temporary administration of property for the securing of assets is ordered;
•  the merchant violates an obligation set out in numbers 3.4.1, 3.7 – 3.8.

10.1 The cession of rights from this contract and the transference of this contract altogether require the agreement of zanox.

10.2 The set-off or retention by the merchant of claims made by zanox from this contract or connected claims outside the contract is only admissible, if the due counter-claim is legally binding or undisputed.

10.3 The contract is agreed upon between the merchant and the ZANOX.de AG, Berlin, Germany, exclusively. The contract constitutes no claims against the zanox partner (intermediary). Zanox.de AG is not bound to accept any contract conditions other than those submitted to the merchant by the respective intermediary.

10.4 The relationship of the parties under this agreement shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable to the relationship of the parties under this agreement. The District Court of Berlin, Germany, shall have exclusive jurisdiction over any and all disputes arising out of or in connection with this agreement.

10.5 Alterations and supplements to this contract must be in written form to be effective. Spoken collateral agreements will not be made. The requirement of proper legal form may only be waived in writing.

10.6 If one or more regulations of this contract are or become invalid, the validity of the remaining regulations remains unaffected. The partners to the contract are obliged to replace the regulation that has proven to be legally invalid with an effective regulation, which achieves the same economic result, if this is possible, and to act as if this regulation had been agreed from the time of the invalidity onwards. The same applies accordingly to the filling of holes in the contract.

10.7 The parties may make reference to their cooperation, particularly in press releases.

10.8 This contract does not establish a company with an external effect in legal relations, nor does it form any employee-employer or commercial representative relationship and so does not authorize any of the parties to make legally binding declarations for both jointly or the other party respectively or to oblige or represent the other party in any other way.