The following terms and conditions apply to the agreement between Hyperflow B.V., registered with the Chamber of Commerce under number 80732690 (hereinafter: Service Provider) and its counterparty (hereinafter: Publisher).
1. Nature of the Affiliate Service
- Service Provider operates a website where third parties (“Visitors”) can take note of information and/or enter into agreements with Service Provider. If Visitors enter into an agreement through the Affiliate Service, this will be with Service Provider and not with Publisher. Service Provider will indemnify Publisher against all claims by Visitors in connection with the performance of this agreement.
- Publisher will perform services for Service Provider that consist of recruiting identified Visitors who wish to enter into an agreement with Service Provider (hereafter: the Affiliate Service), for which Service Provider will pay Publisher a fee.
- By entering into this Agreement, the parties do not constitute a partnership, general partnership, public corporation, joint venture or similar partnership. Neither party is authorized to make commitments on behalf of the other.
- Publisher expressly does not make any promises or guarantees about the number of visitors, contracts concluded and the like. Such numbers in advertisements of Publisher should be regarded as non-binding indications.
- After the agreement is concluded, the Service Provider will provide Publisher with a user name and password that will give the Publisher access to a control panel that can be used to view campaigns and the fees owed. Publisher is obliged to keep the password strictly confidential. The Service Provider will not be responsible for the misuse of the password and may assume that everything that happens with the user name and password provided to Publisher will be under the responsibility and risk of Publisher.
2. Promotion by Publisher
- Publisher will carry out promotion on behalf of the Affiliate Service, which may be done at its discretion within the framework of this article. However, promotion may only take place on websites and other services under Publisher’s control.
- In promoting, Publisher may use any materials on Service Provider’s website unless Service Provider has indicated for specific materials that they are excluded. Further, the trade name, trademark and logo of Service Provider may be used but in unaltered form, and Service Provider may set reasonable terms and conditions on the manner of presentation. Service Provider will indemnify Publisher against third party copyright claims relating to these materials.
- Publisher is not permitted to:
- provide promotional statements of any kind to visitors that falsely suggest or give the impression that Publisher is in any way associated with Service Provider as a dealer or partner, whereby a business display of Service Provider’s trade name, brand or logo is not covered by this prohibition,
- carry out promotion on websites or services of an illegal nature,
- Conduct promotion through unsolicited electronic communications via email, text message or similar medium (“spam”), when done without legally required opt-in,
- Display promotional or recruiting displays on websites or other media that are of an erotic or pornographic nature,
- display promotional or recruiting displays on websites or other media that are violent or extreme in nature,
- providing promotional expressions with inducements of any kind to visitors to click on the Promotional Materials or falsely posing as a potential customer of the Advertiser in order to increase Publisher’s remuneration,
- To call (or have called) promotional communications by automated means, or
- display promotional statements in a manner that is or may reasonably be detrimental to the reputation of Service Provider.
- Display promotional expressions in which medical claims are made4. Other obligations of Publisher:
- Publisher shall submit the materials it wishes to use for the Affiliate Service to Service Provider for approval in advance. Service Provider may give instructions which must be followed before approval is granted.
- All contact data of Visitors is the property of Service Provider. Publisher may use this contact data for its own purposes only with separate opt-in.
- Publisher is prohibited from passing on (part of) the compensation received to Visitors.
- Publisher is prohibited from registering or carrying trade names, brand names, domain names, or service user names (such as names with Facebook, Twitter, or other third-party services) that contain or have a confusing resemblance to a brand or trade name of Service Provider5. Publisher will not make any statements in relation to Service Provider’s offer that are incorrect or violate relevant legislation, such as legislation surrounding comparative advertising, unfair trade practices or consumer rights
6. If Service Provider has a reasonable suspicion that Publisher is acting contrary to the provisions of this article, it will inform Publisher of this. Publisher will then cease or desist from the action in question as soon as possible, failing which Service Provider may terminate the agreement.
3. Compensation for Affiliate Service
- A fee will be payable to Publisher when a cookie containing Publisher’s identification is sent with the Visitor’s first visit.
- No compensation shall be due if the conclusion of the agreement took place after the moment of termination of this agreement. However, a fee shall be payable if only the approval referred to in the following paragraph took place after this time.
- Service Provider may reject (disapprove) a fee with good cause. If Service Provider does not disapprove within 30 days, the fee is deemed approved. Justified reasons are defined as:
- there is fraud
- the Visitor’s contact information is false
- the Visitor is already a customer of Service Provider
- the Visitor is on a blacklist of Service Provider
- the Visitor has lawfully cancelled the agreement with Service Provider (e.g. under the Distance Selling Act)
4. Invoicing and payment
- Payment of fees due will be made on a monthly basis. However, Service Provider is entitled to suspend payment if the amount to be paid is less than €50.00.
- Publisher will issue an invoice to Service Provider. Invoices will be issued electronically.
- The payment term of the invoice is 30 days after the date stated thereon.
- If Publisher acts as a sole proprietor, Service Provider is entitled to receive a Declaration of Independent Contractor Status (VAR) before making payments.
- If Publisher is not established in the Netherlands, the Service Provider will be entitled to demand a VAT number before making payments.
- For the purpose of determining the results, the Service Provider will provide Publisher with access to a control panel with which access can be obtained.
- The results as reported under the previous paragraph shall be binding unless Publisher can provide compelling evidence to the contrary.
6. Limitation of liability
- Service provider is only liable to Publisher for direct damage resulting from an attributable failure in the performance of the agreement.
- For indirect damages (such as consequential damages, lost sales and profits, loss of data and immaterial damage) there is never any liability.
- The maximum amount of damage for which Service Provider is liable is the total amount of compensation that has become due in the three months preceding the moment of the damage-causing event.
7. Duration and termination
- This agreement is entered into for an indefinite period of time.
- Either party may terminate at any time.
- Service Provider is entitled to suspend its obligations towards Publisher if there is a suspicion that Publisher is in breach of the agreement, in any manner whatsoever, without Service Provider being liable to pay any compensation. No compensation will be owed if the basis for the breach arose during the period of suspension. The suspension will only end after Publisher has removed the basis for it to the satisfaction of Service Provider.
- Service Provider is entitled to terminate the agreement with immediate effect if in its opinion there is a violation of a prohibition in Article 2. Upon termination in this situation, Publisher will not be entitled to payment of any outstanding remuneration. After termination of the agreement, in accordance with Article 4, Service Provider will pay the outstanding balance of fees. If Service Provider terminates the agreement on the grounds of fraud committed by Publisher, Service Provider will not be obliged to pay this balance to Publisher.
8. Disputes and applicable law
- The agreement and these Affiliate Terms and Conditions shall be governed exclusively by Dutch law.
- Disputes between parties that cannot be settled amicably shall be brought before the competent Dutch court for the district where Service Provider is located.
9. Amendment and supplementation
Any general terms and conditions of Publisher will not form part of the agreement.
- If any provision of the agreement or these Affiliate Terms and Conditions should be found to be in conflict with applicable law, this provision will be amended in such a way that it will be in conformity with applicable law with due observance of the purport of the provision concerned.
- Service Provider has the right to amend or supplement the agreement or these affiliate terms and conditions with new terms and conditions. Such amendments or additions will take effect seven days after notification to Publisher.
- If Publisher does not wish to accept a modified or supplemented condition, he must terminate the agreement within these thirty days. If Publisher fails to do so, he will be indicating his agreement to the amended or supplemented condition(s).
10. Other provisions
- The parties shall not, without prior consent, provide information and/or make announcements to third parties regarding the content of the agreement or these Affiliate Terms and Conditions, the cooperation between the parties or the results of the Affiliate Service.
- Publisher is not entitled to transfer this agreement and all its rights and obligations arising from it to a third party without separate consent from Service Provider. Service Provider is entitled to transfer this agreement and all its rights and obligations arising from it to a third party that takes over from it the business activities under which this agreement falls.
- The version of any communication between the parties received or stored by Service Provider will be considered the authentic version, unless Publisher) can demonstrate that this version is not authentic.
- If any data relevant to Publisher changes, Publisher will promptly notify Publisher via the control panel.