Publisher Terms and Conditions | Advertiser Terms and Conditions

General Terms and Conditions for Publishers (“Publisher T&Cs”)

Version: 2013

KissMyAds GmbH, Erftstr. 19a, 50672 Cologne (“KissMyAds”) operates a mobile performance network (“KissMyAds Network”), with whose help advertisers ("Advertisers“) can offer their products online using selected operators of websites or mobile applications ("Publishers“).

For this purpose the Publishers make advertising space available to KissMyAds (“Adversting Space”) – e.g. websites or mobile applications that KissMyAds in turn makes available to Advertisers to publish their advertising material – e.g banners, pop-ups, texts, graphics, videos, emails, or animations (“Advertising Material”) – on the KissMyAds Network. KissMyAds pays the Publishers a sucess-dependant consideration for this.
1 Object of the contract
1.1 In the KissMyAds Network KissMyAds makes an affiliate network available to the Publisher through which the Advertiser’s advertising material can be placed on the Publisher’s Advertising Space.
1.2 The Publisher can advertise for certain partner programmes using the online portal made available by KissMyAds (“KissMyAds Portal”) specifying the Advertising Space(es) it operates. For this purpose the conditions are made available to the Publisher through the KissMyAds Portal under which the later par-ticipation of the Publisher in the partner programme will be conducted. In particular regulations can be made on the following points:

1.2.1 Determining the actions and/or events in relation to the Advertising Material placed at the Publisher and the corresponding user action that should justify a claim to the success-dependent consideration (“User Action”) and the amount of the respective consideration. Such a User Action can exist in e.g.

(a) That the user purchases goods or uses a service after the user reaches Advertising Material made available by the Publisher on the Advertiser’s website (“cost per sale”)

(b) That a customer contact such as downloading and installing a mobile app comes about through Advertising Material made available by the Publisher (“cost per lead” or “cost per install”) or

(c) That a user clicks on Advertising Material made available by the Publisher (“cost per click”).

1.2.2 If applicable exclusion of publication of the Advertising Material by cooperation partners of the Pub-lisher (e.g. other advertising networks collectively “Sub-Publishers“). In this case the Publisher shall ensure that advertising of the Advertisers is not displayed on Advertising Spaces of Sub-Publishers.

1.2.3 Determining certain conditions – e.g. in connection with the advertising environment (including issue relevance of the advertising environment “geo/country targeting”, operator (Mobile telephone pro-vider) targeting, device (end appliance) targeting, blacklist for certain websites, activation option i.e. activation of an advertising environment/a sub-publisher only after separate agreement of KissMyAds), on the type of advertising (“traffic targeting” e.g. permissibility of incentivised User Ac-tions), on the consideration (e.g. by defining thresholds) or in connection with brand protection (in-cluding exclusion of keyword advertising) – for implementing the advertising as well as setting other individual conditions if applicable.

1.3 On advertising at a partner programme the Publisher accepts the programme specific conditions that it is shown through the KissMyAds Portal. KissMyAds can also change these conditions at any time with effect for the future. Such changes shall be effective at the end of the third working day after the changes have been first shown in the KissMyAds Portal.
1.4 There shall be no claim to permission for a certain partner programme of an Advertiser; therefore no claims of the Publisher can be derived from non-permission. KissMyAds is also entitled to reject or end current partner programmes in accordance with Fig.. 1.6 without disclosing reasons. KissMyAds shall also not be responsible for any User Actions being generated through the KissMyAds Network at all.
1.5 If a connection is made to an Advertiser KissMyAds shall monitor and record the User Actions relevant to the respective Advertiser in order to be able to invoice the relevant consideration on this basis. For this KissMyAds shall make a regularly updated overview of the tracking events (“Reporting”).available to the Publisher through the KissMyAds Portal.
1.6 The Publisher shall interrupt connections already made to Advertisers again if KissMyAds has informed the Publisher of this wish through the KissMyAds Portal or by email. The Publisher shall process this wish immediately so that the interruption becomes effective within two working days at the latest.
1.7 KissMyAds is entitled to assign service provision or parts thereof for independent completion to affiliated companies, third party service providers or vicarious agents. Within the context of the further development of the KissMyAds Network KissMyAds can improve, ex-pand, change or cancel individual functions insofar as this does not have the effect of a significant rear-rangement of the contractual relationship. KissMyAds shall be entitled to this right to change services in particular if the change is usual for the sector or if KissMyAds is obliged to do this due to a change to the legal situation. The implementation of corresponding changes and any other necessary maintenance work can lead to the temporary unavailability of individual functions of the KissMyAds Portal or the KissMyAds Network.

2 Registration and user account
2.1 A claim to services of KissMyAds is exclusively possible for the Publisher after successful registration at KissMyAds.
2.2 Publishers can only be businesses in accordance with Section 14 BGB. KissMyAds is entitled to demand submission of a commercial registry extract and/or other documents as well as any other disclosures that seem to be necessary or advisable.
2.3 The Publisher shall ensure that the data it gives is up to date. Personal access data (such as passwords) must not be passed to third parties and must be kept secure from third party access. The password should be changed at regular intervals for security purposes. Insofar as there are reasons to suspect that unauthorised persons have gained knowledge of access data the Publisher shall inform KissMyAds of this immediately by email and shall change its access data immediately. KissMyAds will not pass the password to third parties and will never ask the Publisher for the password by email or telephone. The Publisher is generally liable for all activities carried out under use of its access data if it responsible for misuse of its access data.

3 Duties of the contractual partners
3.1 KissMyAds shall transmit the Advertising Material and the corresponding hyperlinks to the Publisher through the KissMyAds Portal to the advertising website or application (in addition to the URL of the website). KissMyAds is not obliged to make Advertising Material available or to check or monitor the Ad-vertising Material made available by the Advertisers or the advertising activity of the Advertiser overall for its legal permissibility or the accuracy of content. These duties are the sole responsibility of the Publisher.
3.2 The Publisher guarantees that the Advertising Spaces and the advertising environment it makes available (i) do not breach statutory regulations in particular any third party rights (in particular copyright, brand, personal or comparable rights) (ii) do not breach any other statutory (in particular competition law) pro-visions and (iii) are not of a subversive, racist or pornographic nature, do not glorify violence or are liable to corrupt the young.
3.3 The Publisher is obliged to affix provider labelling to its business range in accordance with applicable statutory provisions and to comply with any self-regulation applicable to it of the industry.
3.4 If the Publisher operates a network with Sub-Publishers the Publisher guarantees to forward these Pub-lisher T&Cs with binding effect to its Sub-Publishers and to monitor and implement their compliance. The Publisher shall be liable for the behaviour of its Sub-Publishers.
3.5 During the term of this contract the Publisher is not permitted to conclude any direct or indirect contracts concerning services that are the object of this contract (online advertising) with Advertisers of the KissMyAds affiliate network bypassing KissMyAds or to hold negotiations with this aim.

4 Checking and cancellation User Actions by KissMyAds
4.1 KissMyAds shall check the accuracy of tracking events in cooperation with the Advertiser.
4.2 KissMyAds is entitled to cancel User Actions within 5 working days if (i) the User Action did not come about in an orderly manner in particular because the Publisher itself or through a third party simulated the respective User Actions or (ii) the respective User Action is based on the application of an advertising form that although it makes tracking possible the Advertising Material is however not, not perceivably or is not displayed in the form or size given by the Advertiser.

5 Payment
5.1 KissMyAds is obliged to make a result-based payment to the Publisher for the services provided that arise in detail from the conditions deposited in the KissMyAds Portal.
5.2 The claim of the Publisher against KissMyAds for the payment defined in Fig 5.1 shall arise on expiry of the deadline in accordance with Fig 4.2 insofar as no revocation has occurred and there is no case of misuse in accordance with Fig. 6.
5.3 KissMyAds shall issue the Publisher a credit note for the consideration to be paid for the preceding ad-vance half month on the 1st and 16th of each calendar month (i.e. a credit on 16 February covers the pe-riod 1 January-15 January etc.) insofar as the amount to be credited exceeds the minimum payment threshold of € 50.00 (at the end of each calendar year all amounts to be credited shall be credited regard-less of the minimum payment threshold).
5.4 The amounts given in the credit note shall be disbursed to the Publisher within thirty (30) days after issue of the credit note.

6 Misuse
6.1 Every form of misuse i.e. achieving User Actions through unfair methods or impermissible means that breach applicable law, these Publisher T&Cs, any additional programme specific conditions of the Adver-tiser (see Fig. 1.2.3) and the principle of the KissMyAds Affiliate Network is prohibited.
6.2 In particular it is prohibited for the Publisher to attempt to attain consideration in a manner in which it itself or through third parties applying the assigned Advertising Material, tracking links and/or any other technical aides initiates one or more of the following User Action practices:

6.2.1 Simulating User Actions that did not take place in reality e.g. by the unfounded input of false or non-existent data when ordering goods and/or services or during online registration;

6.2.2 Applying advertising forms that although they make tracking possible the Advertising Material is however not, not perceivably or is not displayed in the form or size given by the Advertiser; or

6.2.3 Applying terms legally protected in particular under brand law such as in search engines, when plac-ing advertisements or when advertising the Advertising Space without the explicit prior written con-sent of the party entitled to exercise such rights.

6.3 Every form of misuse shall lead to an immediate block of the Publisher’s access to the KissMyAds Portal and to the KissMyAds Network. In addition the Publisher shall have no claim to any consideration for User Actions initiated by misuse.
6.4 In every case of culpable contravention of these provisions the Publisher is obliged to pay a contractual penalty each to be set at the discretion of KissMyAds or in case of dispute by a court of law. The maximum contractual penalty shall be the consideration owed and not yet paid at the time of the block by KissMyAds.

7 Limitation of liability
7.1 KissMyAds shall only be liable for damage or loss that may occur if

7.1.1 it has culpably (i.e. at least negligently) breached a fundamental contractual obligation whereby the term “fundamental contractual obligation“ describes such obligations the fulfilment of which make the orderly implementation of the contract possible at all, compliance with which the contractual partner can rely and the breach of which endangers achievement of the purpose of the contract,

7.1.2 the damage was caused by gross negligence or intent by KissMyAds or

7.1.3 KissMyAds has provided a guarantee.

7.2 The liability of KissMyAds is limited to typical damage foreseeable on concluding the contract if

7.2.1 KissMyAds culpably but not grossly negligently or intentionally breaches fundamental contractual obligations or

7.2.2 employees or those assigned by KissMyAds that are not management bodies or senior employees grossly negligently or intentionally breach any other obligations.

7.3 In the event of any liability for simple negligence i.e. a simple negligent breach of a fundamental contrac-tual obligation the obligation to pay compensation of KissMyAds shall be limited to € 50,000.00 per loss event.
7.4 The preceding liability exclusions and limitations apply to the same extent in favour of management bodies, legal representatives, employees and other vicarious agents of KissMyAds.
7.5 The liability of KissMyAds in accordance with the German Product Liability Act for intentional actions, for death, injury and damage to health as well as for fraudulent concealment remains unaffected by the pre-ceding liability exclusions and limitations.

8 Term
8.1 The contract for participation in the KissMyAds Network is concluded indefinitely.
8.2 Both parties are entitled to terminate the contract at any time in writing or by email with a notice period of 30 days.
8.3 The right of both parties to immediate termination for cause remains unaffected. Cause shall exist in particular if (i) insolvency proceedings are opened against the assets of the other party or are rejected due to a lack of assets or an out of court settlement procedure takes place, (ii) claims of the other party are distrained and the distraint is not lifted within two weeks or (iii) the other party seriously breaches the obligations specified in this contract.
8.4 Further KissMyAds can also carry out an extraordinary immediate termination if the Publisher breaches its obligations from Fig. 3.7 or Fig. 6 of these Publisher T&Cs.
8.5 In the event of the termination of the contract the Publisher‘s access to the KissMyAds Portal and to the KissMyAds Network shall be blocked.

9 Rights of use
9.1 The Publisher is not entitled to the following with reference to the applications made available to the Publisher through the KissMyAds Network or through the KissMyAds Portal if applicable or the data in-cluded therein: (i) to pass on or to make access possible to third parties, (ii) to change or otherwise proc-ess this data, (iii) to transfer in other work forms and/or to prepare its own database and/or use a service.
9.2 KissMyAds grants the Publisher the non-exclusive right to use the Advertising Material made available to fulfil the purpose of this agreement according to the conditions deposited in the KissMyAds Portal in par-ticular to place this on the Advertising Spaces. Any further processing, duplication or distribution of the Advertising Material is not permitted.
9.3 If the Publisher (or its Sub-Publisher) breaches the provisions of the preceding Fig. 9.1, 9.2 or any other guarantees it has given (in particular Fig. 3.2) and if a legal claim is made against KissMyAds by a third party as a result of this breach KissMyAds shall be entitled to demand the payment of all costs and expenses incurred as a result of the breach from the Publisher (in particular including any lawyer’s costs for legal defence).

10 Non-disclosure
10.1 The parties are obliged to treat all confidential information such as of a technical, commercial and organ-isational nature of which they become aware when implementing this contract confidentially and shall only use such information for contractually agreed purposes. The obligation to retain confidentiality shall not apply to those persons who are authorised to be informed and are legally or contractually obliged to retain silence or insofar as the perception of their own claims counters this or the other party has agreed to disclosure. Confidential information in accordance with this provision is information, documents, dis-closures and data that are described as such or by their nature are to be seen as confidential.: the term confidential information does not include such information that (i) is in the public domain or is generally accessible (unless this is due to a breach of this agreement by the informed party or one of its representa-tives); (ii) that was already legally possessed by the informed party without a confidentiality obligation before this party received the information from the informing party; or (iii) was received from a third party that is entitled to disclose this information without restrictions.
10.2 The
10.3 If one party is obliged to make confidential information of the other party in the preceding sense accessi-ble to a public body this party shall be entitled to do so; the other party must be informed immediately and if possible before surrendering the information to the public body.
10.4 The rights and obligations of this Fig. 10 shall not be affected by the termination of this contract. Both parties are obliged to return or destroy any confidential information of the other party in accordance with their choice insofar as this information has not been consumed in an orderly manner or set aside in ac-cordance with the law.

11 Data protection
11.1 KissMyAds collects, processes and uses personal data exclusively in compliance with the applicable statu-tory data protection regulations in particular the German Federal Data Protection Act (BDSG).
11.2 KissMyAds is entitled to collect and use personal data of the Publisher (name of contact partners, address, other contact information, bank details) insofar as this is necessary to make participation in the KissMyAds Network possible. Processing and use of personal data for other purposes shall only be done on the basis of consent or a statutory provision that permits this use by KissMyAds.
11.3 Insofar as the Publisher in the context of their participation in the KissMyAds Network gains access to third party personal data (in particular data of Advertisers and/or tracking information) the Publisher is obliged to use this data exclusively to implement this contract. Further the Publisher is obliged to comply with the applicable statutory data protection provisions and shall only collect, process or use third party personal data in particular not without the consent of those affected.
11.4 Further data processing shall only be carried out in accordance with the privacy policy of KissMyAds.

12 Final provisions
12.1 Participation in the KissMyAds Network and all performances, offers and contracts between KissMyAds and the Publisher are exclusively subject to these Publisher T&Cs. Any business conditions of the Publisher that contradict these Publisher T&Cs or deviate from them shall not apply. This also applies if KissMyAds is made aware of such contractual conditions and KissMyAds makes possible access to the KissMyAds Network in awareness of such contractual conditions. Counter confirmations of the Publisher with reference to its business conditions are hereby contradicted.
12.2 The parties can only enforce offset rights or rights of retention against claims of the other party from this contract insofar as a due counter-claim of the other party has been legally adjudicated or is undisputed.
12.3 KissMyAds is entitled to assign its rights and obligations from this contractual relationship to third parties in full or in part with a notice period of 45 days. In this case the Publisher is entitled to terminate this contract with a notice period of 10 days after corresponding notification. The assignment of rights and obligations from this contract that are not explicitly regulated in these Publisher T&Cs or the transfer of this contract overall by the Publisher to a third party requires the written consent of KissMyAds.
12.4 Any amendments or supplements to these Publisher T&Cs – including this written form clause – must be made in writing to be effective. All other communications within the context of this contract can be transmitted by email to the address to be specified by the parties for this purpose insofar as nothing to the contrary is explicitly agreed. Verbal and telephonic transmissions are in contrast not sufficient.
12.5 The law of the Federal Republic of Germany under the exclusion of UN Sales Law (CISG) shall apply exclu-sively to these Publisher T&Cs and to the contractual relationship between KissMyAds and the Publisher. The parties agree on Cologne as the court of jurisdiction insofar as the Publisher is a merchant in accor-dance with the German Commercial Code (HGB), does not have any fixed place of residence in Germany, moves its fixed place of residence abroad after these Publisher T&Cs come into effect or if the Publisher’s place of residence or usual abode is unknown at the time a lawsuit is filed.
12.6 The invalidity of individual provisions of these Publisher T&Cs shall not affect the effectiveness of the other provisions. In place of the ineffective provisions primarily such provisions shall be applied that financially correspond as closely as possible with the ineffective provisions in a legally permissible manner. The same applies to any omissions in the regulations.

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General Terms and Conditions for Advertisers (“Advertiser T&Cs”)

Effective: October 2013

KissMyAds GmbH, Erftstr. 19a, 50672 Cologne ("KissMyAds“) operates a mobile performance network ("KissMyAds Network“), with whose help advertisers ("Advertisers“) can offer their products online using selected operators of websites or mobile applications ("Publishers“).

For this purpose the Advertisers place at KissMyAds's disposal advertising materials – e.g. banners, pop-ups, texts, graphics, videos, emails, or animations ("Advertising Material“) –, which KissMyAds in turn places at the Publisher's disposal for publication on the latter's advertising space – e.g. websites or mobile applications ("Advertising Space“) – via the KissMyAds network. For this service the Advertiser makes a result-based payment to KissMy Ads.

1 Object of the contract
1.1 KissMyAds shall place an affiliate network at the Advertiser's disposal - the KissMyAds network - by means of which the Advertiser's Advertising Material can be placed on the Publisher's advertising space.
1.2 In doing so KissMyAds shall make it possible for the Advertiser to stipulate certain conditions on an individualized basis via an online portal provided by KissMyAds ("KissMyAds Portal“). The details are stated in the insertion order placed with KissMyAds by the Advertiser ("Insertion Order“ or "IO“). The Insertion Order should in particular regulate the following points:

1.2.1 The Advertiser shall determine at its own discretion which acts and/or events related to the Advertising Material placed with the Publisher and the corresponding actions by users ("User Actions") are to form the basis for a claim to the result-based payment, and how much the payment is to be in each case. The details will be shown in the Insertion Order. A User Action in this context may e.g. consist in

(2.1.a) the User purchasing an article or making use of a service after having reached the Advertiser's website via the Advertising Material provided by the Publisher ("Cost Per Sale“),

(2.1.b) a customer contact coming into existence via the Advertising Material provided by the Publisher, for example by downloading and installing a mobile app ("Cost Per Lead“ or "Cost Per Install“), or

(2.1.c) a User clicking onto Advertising Material provided by the Publisher ("Cost Per Click“).

1.2.2 The Advertiser may, subject to formal approval by KissMyAds, stipulate specific conditions - e.g. with reference to the advertising environment (including subject relevance to the advertising environment, "geo-targeting", a blacklist for specific websites, validation options, i.e. approval of an advertising environment /a Publisher only after separate consent is given by the Advertiser), with reference to amount of payment (e.g. through the definition of ceiling amounts) or with reference to trademark protection (incl. exclusion of keyword advertising) - for the performance of the advertising by the Publisher, and, where applicable - also subject to formal approval by KissMyAds - define individual conditions which are provided for, or imposed on, the Publishers via the platform. These conditions must not conflict with the conditions which KissMyAds stipulates for the Publishers; in the event of such conflict the provisions of the KissMyAds conditions shall prevail.

1.2.3 If the Advertiser wishes to exclude the publication of its Advertising Material by the Publishers' cooperation partners (e.g. other advertising networks, collectively called "Sub-Publishers"), it must advise KissMyAds of same separately when placing the Insertion Order. KissMyAds will then advise the Publishers of same and place the Publishers under a contractual obligation to this effect.

1.2.4 The Advertiser may at any time alter the conditions with future effect. The alterations shall take effect immediately after confirmation by KissMyAds. Such confirmation will as a rule be given within three working days.

1.3 KissMyAds shall work to ensure that Publishers display the Advertising Material on their advertising space subject to the conditions stipulated by the Advertiser. Advertisers shall however have no right to require KissMyAds to establish a connection with one or more than one specific Publisher. Instead, KissMyAds shall also be entitled to reject publishers without statement of reasons. Nor shall KissMyAds be responsible for ensuring that any User Actions whatever are generated via the KissMyAds network.
1.4 In cases where a connection with a Publisher has been established, KissMyAds shall monitor and document the User Actions which are relevant to the particular Advertiser in order to have a basis for charging for the payment due. For this purpose KissMyAds shall use the KissMyAds portal for providing the Advertisers with a regularly updated overview of the tracking results ("Reporting").
1.5 KissMyAds shall suspend already established connections with Publishers if the Advertiser has given KissMyAds notice of such request via the KissMyAds portal or by email. KissMyAds shall process the request without delay, so that the suspension will take effect within three working days at the latest.
1.6 KissMyAds shall be entitled to transfer the performance or part-performance of services to affiliated companies, external service providers or vicarious agents for independent performance by them.
1.7 In the course of the further development of the KissMyAds network, KissMyAds may improve, expand, alter or cancel individual functions provided that this does not result in a material recasting of the contractual relationship. KissMyAds shall in particular be entitled to this right of modification of performance if the modification is customary for the sector or becomes obligatory for KissMyAds due to legislative changes or new case law rulings. The implementation of the relevant changes and other necessary maintenance work may result in individual functions of the KissMyAds portal or the KissMyAds network temporarily becoming unavailable.

2 Registration and user account
2.1 Utilisation of the services performed by KissMyAds shall be possible exclusively after successful registration with KissMyAds.
2.2 Advertisers may only be legal persons and natural persons and partnerships with unrestricted legal capacity that are merchants within the meaning of the HGB (German Commercial Code). As provided for by the current contractual relationship, KissMyAds shall be entitled to require submission of an extract from a register of companies or register of trading establishments and/or other documents which seem requisite or expedient for the maintenance of the contractual relationship.
2.3 The Advertiser must ensure that the data which it supplies are updated and correct. Personal access data (such as code/password) may not be passed on to third parties and must be kept safe, i.e. inaccessible to third parties. For safety reasons the password should be changed at regular intervals. If there is reason to suspect that unauthorised persons have gained knowledge of the access data, the Advertiser must inform KissMyAds of same without delay by email and must alter its access data without delay. KissMyAds will not disclose an Advertiser's password to third parties and will never ask the Advertiser for the password by email or telephone. The Advertiser shall in principle accept liability for all activities which are performed with the use of its access data if it (the Advertiser) is responsible for the misuse of its access data.

3 Duties of Advertiser
3.1 The Advertiser shall supply KissMyAds with its Advertising Material and the corresponding hyperlinks to the website or application to be offered (plus the website's URL) for possible forwarding to the Publisher. The Advertising Material must be in a form suitable for use by the Publisher as advertising in accordance with contractual provisions (in particular, a suitable file format) and must conform to any requirements stipulated by KissMyAds for said purpose.
3.2 Subject to existing technical limits the Advertiser must design its website, including search engines and/or directory entries, in such a manner that KissMyAds will be able to monitor and document the User Actions (for Tracking see section 4). For this purpose the Advertiser shall in particular implement - or allow the implementation of - any tracking switches provided by KissMyAds (e.g. the interposition of a server which reads the tracking ID allocated to the particular end user and passes the end user directly on to the website offered). The Advertiser undertakes not to influence the tracking results to be ascertained by KissMyAds.
3.3 KissMyAds shall not be obliged to check and/or monitor the Advertising Space provided by the Publishers and any possible Sub-Publishers, its environment or the overall advertising activities of the Publisher in respect, for instance, of their legal admissibility or the correctness of their contents. This shall be incumbent solely on the Advertiser.
3.4 The Advertiser warrants that the Advertising Material which it provides, the websites offered and other contents and/or the goods or services which its sells (i) do not contravene the provisions of statute law of the corresponding country and in particular do not infringe upon the rights of third parties (in particular, copyright, trademark rights, privacy rights and comparable rights), (ii) do not contravene other statutory provisions (in particular the provisions of competition law) and (iii) are not of a politically subversive, racist or pornographic nature and neither glorify violence nor are liable to be harmful to minors.
3.5 The Advertiser is obliged to furnish its commercial offering with a provider identification as required under section 5 of the TMG (German telecommunications media act) and to comply with any voluntary industry obligations pertaining to the Advertiser.
3.6 The Advertiser undertakes, for the entire term of this agreement and for an additional period of one year after termination of this agreement, not to enter into a contractual relationship with a Publisher, either directly or indirectly, which regulates the offering of the Advertiser's goods and services via online advertising, if the Publisher has displayed the Advertiser's Advertising Material by way of the KissMyAds network. This obligation shall not apply to Publishers with which the Advertiser demonstrably concluded contracts with the relevant contents prior to the registration of the Advertiser in the KissMyAds network. The Advertiser undertakes to pay KissMyAds a contractual penalty for each case of breach of this obligation, the amount to be at the equitable discretion of KissMyAds and to depend on the circumstances of the individual case and, in case of dispute, to be reviewed by the competent court of law (section 12.6). If a Publisher which displayed the Advertiser's Advertising Material by way of the KissMyAds network has exited from the KissMyAds network before the expiry of the term of this agreement, the obligation not to enter into a contractual relationship with such Publisher shall end on expiry of a period of one year after the exit from the KissMyAds network.

4 Checking and cancellation of User Actions by the Advertiser
4.1 The Advertiser shall check on the correctness of the tracking results supplied by KissMyAds.
4.2 The Advertiser shall be entitled to cancel User Actions within 72 hours provided that it proves that (i) the User Action was not properly performed, in particular because the Publisher itself simulated the relevant User Actions or had this done by third parties, or (ii) that the particular User Action was based on the use of a form of advertising which, while it makes tracking possible, does not, in doing so, perceptibly display the advertising in the form and size stipulated by the Advertiser.
4.3 If the Advertiser does not cancel a User Action within the deadline of 72 hours laid down in subsection 4.2, a later cancellation of the tracking results shall not be possible.

5 Payment
5.1 Der Advertiser shall be obliged to make a result-based payment to KissMyAds for the services rendered, these being specified in detail in the Insertion Order.
5.2 KissMyAds's claim against the Advertiser for the payment defined in the previous subsection (5.1) shall become effective as of confirmation of the User Actions as set forth in section 4, above.
5.3 KissMyAds shall invoice the Advertiser for the required payment twice a month. This shall not apply in cases when the amount to be paid has already exceeded EUR 20,000.00. In such case KissMyAds shall be entitled to issue an (additional) invoice for the period.
5.4 The amounts stated in the invoices shall be due for payment, without deductions, within seven (7) days after delivery of the invoice to the Advertiser. All transfer fees shall to be covered by the Advertiser.

6 Advertiser's liability
6.1 If, in breach of section 3.2, the Advertiser influences the result of the tracking and this results in tracking losses or other detrimental effects for which the Advertiser is responsible, the Advertiser shall be obliged to compensate KissMyAds for the damage or loss thereby incurred. In such case the damage or loss incurred by KissMyAds through the tracking loss as against the Publishers, plus the loss of profit, shall represent the minimum amount of damage or loss. The calculation of the loss of profit shall be based on the average amounts paid to KissMyAds on the basis of the display of the Advertiser's Advertising Material in the last four weeks before the event which triggered the loss or damage. If, at the time of the tracking loss, the Advertiser's Advertising Material have not yet been displayed for four weeks, the loss of profit shall be calculated on the basis of the average payments which KissMyAds has received in the total advertising period up to this time. The Advertiser shall in every case have the right to furnish evidence that KissMyAds has in fact incurred no or a smaller amount of damage or loss.
6.2 In the event that the Advertiser is in breach of the provisions of these Advertiser T&CS, in particular its obligations under section 3.1, and claims are filed against KissMyAds by a third party (e.g. a rights owner) as a result of the breach of agreement, Advertiser shall indemnify KissMyAds against all claims which third parties make against KissMyAds on grounds of the infringement of their rights. In such event the Advertiser shall also meet all the costs of a necessary legal defence of KissMyAds, including all court and lawyers' costs. This shall not apply if and insofar as the Advertiser is not responsible for the infringement of rights.
6.3 In other respects the Advertiser shall be liable in accordance with the relevant provisions of statute law.

7 Limitation of liability
7.1 KissMyAds shall only be liable for damage or loss that may occur if

7.1.1 it is culpably (i.e. at least negligently) in breach of a material contractual obligation, the term "material contractual obligations" being defined as the obligations without whose fulfilment the proper performance of the agreement is not possible, which the other contracting party must in normal circumstances expect to be fulfilled and the breach of which jeopardises the achievement of the purpose of the agreement,

7.1.2 the damage or loss was due to gross negligence or premeditation on the part of KissMyAds, or

7.1.3 KissMyAds has assumed a warranty.

7.2 KissMyAds's liability shall be limited to damage or loss under standard contract conditions and predictable at the time the agreement was concluded, if

7.2.1 KissMyAds is, culpably but not in gross negligence or premeditation, in breach of material contractual obligations, or

7.2.2 its employees or commissioned persons who are not company organs or senior executives are in grossly negligent or premeditated breach of other obligations.

7.3 In the event of liability for ordinary negligence, i.e. the breach of a material contractual obligation, KissMyAds's obligation to compensate shall be limited to the amount of EUR 30,000.00 per case of damage or loss. 7.4 The above exclusions and limitations of liability shall apply to the same extent in favour of KissMyAds's organs, legal representatives, employees and other vicarious agents.
7.5 The above exclusions and limitations of liability shall be without prejudice to the liability of KissMyAds under the German product liability act and for premeditated acts, injury to life, person and health and for malicious concealment.

8 Term
8.1 Except when regulated otherwise in the Insertion Order, the agreement shall be of indefinite duration.
8.2 Both parties shall be entitled to terminate the agreement at any time, in writing or by email, at 30 days' notice to the end of a month.
8.3 The right of both parties to terminate without notice for compelling reason shall remain unaffected. A compelling reason shall in particular be present if (i) insolvency proceedings are opened on the assets of the other party or refused for lack of assets or if extra-judicial settlement proceedings take place, (ii) claims of the other party are distrained and the distraint is not rescinded within two weeks, or (iii) the other party is in serious breach of its obligations stated in this agreement.
8.4 KissMyAds may in addition effect extraordinary termination of the present agreement without notice if the Advertiser is in breach of its obligations under sections 3.2, 3.4 or 3.6 of these Advertiser T&CS.
8.5 In the event of the agreement being terminated the Advertiser's access to the KissMyAds portal and the KissMyAds network shall be blocked.

9 Rights of use
9.1 The Advertiser shall not be entitled (i) to pass on to third parties or allow third parties access to the applications placed at its disposal via the KissMyAds network or, where applicable, the data contained therein, (ii) to modify or otherwise process said applications and data, or (iii) to transfer them to other formats and/or use them to set up a database and/or service operation of its own.
9.2 The Advertiser hereby grants KissMyAds the non-exclusive, transferable, irrevocable and geographically unrestricted right to use the Advertising Material provided by the Advertiser in order to fulfil the purpose of the present agreement, in particular to supply said materials to the Publishers for placement on their Advertising Space and, where applicable, supply to their Sub-Publishers. The Advertiser warrants that it is entitled and in a position to grant the aforesaid right. The Publisher shall not be permitted to process, reproduce or disseminate the Advertising Material to any extent in excess thereof. KissMyAds shall be entitled to grant Publishers sub-licences for the use of the Advertiser's Advertising Material (including the right of the Publishers to grant sub-licences to any possible Sub-Publishers). By transmitting the particular Advertising Material, the Advertiser gives its formal approval to their use for the above-stated purpose.
9.3 KissMyAds shall be entitled to use the Advertiser's Advertising Material and its product names (including the trademarks for the goods and services offered via the KissMyAds services) as a reference in the context of its own acquisition operations, in particular in relation to reference customer lists.

10 Non-disclosure
10.1 The parties undertake to treat all confidential information, for example of a technical, commercial or organisational nature, which comes to their knowledge via the performance of the present agreement, in strict confidence and to use it only for the contractually agreed purposes. This non-disclosure obligation shall not apply in respect of persons who are authorised to gain such knowledge and are under a statutory or contractual confidentiality obligation or if non-disclosure is in conflict with the assertion of their own claims, or if the other party has consented to disclosure. Confidential information within the meaning of this provision shall be information, documents, statements and data which are designated as such or must, by their nature, be regarded as confidential. The term confidential information does not include information which (i) is or comes to be in the public domain or accessible to the general public (unless this is due to a breach of the present agreement by the party informed or one of its representatives); (ii) had already lawfully and without any applicable confidentiality obligation come into the possession of the informed party before it was received from the informing party; or (iii) was received from a third party with an unrestricted right to disclose the information.
10.2 The burden of proof of the presence of one of the above exceptions shall rest with the party making the claim thereto.
10.3 If a party is obliged to make information from other party which is confidential in the aforesaid sense accessible to public authorities, it shall be entitled to do so; said other party must be informed without delay and if possible before disclosure of the information to the public authorities.
10.4 The rights and obligations defined in this section 10 shall not be affected by a termination of the agreement. Both parties shall be obliged, on termination of the agreement, to return or destroy, at their discretion, the other party's confidential information, except when it has been properly disposed of or must, by law, be preserved.

11 Data protection
11.1 KissMyAds shall collect, process and use personal data exclusively in compliance with the applicable provisions of statute law for the protection of data, in particular the BDSG (German data protection act).
11.2 KissMyAds shall be entitled to collect and use the Advertiser's person-related data (name of contact partner, address, other contact information, bank details) insofar as this is necessary to enable the Advertiser to participate in the KissMyAds network. The processing and use of person-related data for other purposes shall only be possible on the basis of consent or a statutory provision which allows KissMyAds such use.
11.3 If, in the course of its participation in the KissMyAds network, the Advertiser gains access to the person-related data of third parties (in particular the data of Publishers and/or tracking information), it shall be obliged to use such data only for the performance of the present agreement. The Advertiser also undertakes to comply with the applicable data protection provisions of statute law, and shall not collect, process or use the person-related data of third parties except with the consent of the parties affected or on the basis of a statutory requirement.
11.4 The processing of data shall, furthermore, be subject to the terms of KissMyAds's data protection statement.

12 Final provisions
12.1 Participation in the KissMyAds network, together with all the services, offers and agreements or contracts between KissMyAds and the Advertiser shall be subject exclusively to these Advertiser T&CS. Terms and conditions of the Advertiser which are in conflict with or differ from these Advertiser T&CS shall not be applicable. This shall also apply if KissMyAds has been informed of such other contractual terms and conditions and has enabled access to the KissMyAds network in knowledge of such contractual terms and conditions. Any conflicting confirmations by the Advertiser on the basis of its own terms and conditions will not be recognised.
12.2 The parties may assert a right to set off or withhold payment against the claims of the other party under the present agreement only if a counter-claim by the other party, which is due for payment, has been established at law or is undisputed.
12.3 KissMyAds shall be entitled to transfer its rights and obligations under the present agreement, in their entirety or in part, to a third party after having given 45 days' notice. In this case the Advertiser shall be entitled to terminate the present agreement at 10 days' notice. The assignment of rights and obligations under this agreement, or the transfer of this entire agreement, by the Advertiser to a third party shall be subject to KissMyAds's written consent.
12.4 The present Advertiser T&CS and the Insertion Orders placed shall constitute the entire agreement and covenant of the parties with regard to the subject of the agreement and shall supersede all the written and oral agreements and covenants concluded between the parties with reference to the subject of the agreement.
12.5 Alterations or additions to Insertion Orders or the present Advertiser T&CS - including the present provision regulating written form - shall only be effective if in written form. All other communications related to this agreement may, except when expressly agreed to other effect, be transmitted by email sent to the email addresses designated by the parties for this purpose. Oral communication and communication by telephone, however, shall not suffice.
12.6 These Advertiser T&CS and the contractual relationship between KissMyAds and the Advertiser shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the United Nations CSIG. The parties agree on the jurisdiction of the courts in Cologne, provided that the Advertiser is a merchant as defined in the HGB (German Commercial Code), is not permanently resident in Germany or did not move its permanent residence abroad after these Advertiser T&CS came into effect, or if its residence or normal place of abode is unknown at the time a suit is filed.
12.7 The invalidity of individual provisions of these Advertiser T&CS shall not affect the validity of the other provisions. Invalid provisions shall, by way of priority, be replaced by provisions which are legally valid and which correspond, in commercial terms, as closely as possible to the invalid provisions. The same shall apply to any omissions, i.e. unregulated matters.