Affiliate Program / General Terms and Conditions
The following General Terms and Conditions are intended for Website owners (hereafter, “Affiliates”), who wish to participate as Affiliates in the Affiliate Program provided by PSKiss ltd (hereafter, “PSKiss”). on the basis of these General Terms and Conditions.
I. Object of the Program/Affiliate Management
The object of the Program is to publish electronic advertisements on the website of the Affiliate for selected software products offered by PSKiss ltd. Instead of fixed compensation, the Affiliate receives Commission based on orders with irrevocably completed payment in exchange for publishing the advertisements. The Commission depends on the actual sales generated by end users referred via the electronic advertisement / the Affiliate’s link. PSKiss handles the distribution of the purchased products in accordance with complete payment.
“Affiliate’s Dashboard” is defined for the parties within the meaning of these General Terms and Conditions to mean the Affiliate’s password-protected secure interface that allows the Affiliate to gain access to referred sales through a secure online connection or alteration of personal data, definition of default style within the context of the given technical limitations, and requests for new partnerships with PSKiss or termination of existing partnerships.
1 Affiliate Participation
These General Terms and Conditions become the basis for the business relationship between the parties to the Program when the check box in the registration process is clicked (confirmed). Participation of an individual Affiliate in the Program is dependent on activation by the PSKiss. Once the Affiliate has registered, PSKiss will send an e-mail to the Affiliate with a request to activate the Affiliate account. Once the Affiliate account is activated, the Affiliate is considered to be a participant in this Program and is bound by these General Terms and Conditions.
2 Products under the Agreement
(1) The Products under the Agreement are software products designated by PSKiss for this purpose and which can be selected by the Affiliate from a product catalog in the Affiliate Dashboard.
(2) Following initial activation of a product under the agreement, the Affiliate has the opportunity to choose further software products, found in the Affiliate’s Dashboard, and advertise them on the Affiliate’s website under these General Terms and Conditions. However, the advertising of these new products is dependent on PSKiss activating the Affiliate for the respective software under the agreement.
(1) After successfully completing the registration process for participation in PSKiss Affiliate Program, the Affiliate will be sent a user ID and a password to access the “Affiliate Dashboard”. With the user ID and password, the “Affiliate Dashboard” provides the Affiliate access, via a secure online connection, to a secure area on PSKiss Web server so that the Affiliate may, at any time, view the number of software sales the Affiliate has referred, as well as change other settings.
(2) When using the user ID and password, the Affiliate shall observe the following obligations and precautions: (1) the user ID and password is for the Affiliate’s own use only; (2) the password shall be kept strictly confidential; the Affiliate shall take due care to ensure that no unauthorized parties learn the password; (3) if the Affiliate lose their password or if there is a possibility that an unauthorized party has learned the user ID and password, the Affiliate shall immediately report this to PSKiss which can then block the Affiliate’s access to the Dashboard. Any actions carried out with the user ID and password will be attributed to the Affiliate.
4 Integration of the Link/Generating Cookies
(1) The Affiliate incorporates a link to the product under the agreement on the Affiliate’s website referring either to the order form at PSKiss or to the relevant Software Publisher’s website, based on the Affiliate’s setting in the Affiliate Dashboard. This link is generated by a Link Generator for the respective product under the agreement. The Link Generator is located in the Affiliate Dashboard. The link that is generated contains an individualized Affiliate ID by means of which any sales can be attributed to the Affiliate. Proper technical integration of the link is the responsibility of the Affiliate. If the links do not function, no Commission will be paid.
(2) The Affiliate shall indicate on the Affiliate’s website that (1) the Affiliate is participating in the Program as an independent partner of PSKiss (2) the seller of the product is either the Software Affiliate or PSKiss and that the payment process is administered by PSKiss.
(3) The Affiliate shall provide a brief description for each activated product on the Affiliate’s website. The Affiliate is responsible for the content, the style and the layout of this information. The Software PSKiss can provide the Affiliate with graphics and text in an electronic format for use in describing the product, which the Affiliate shall use for the purpose of advertising the products under the Agreement and links according to PSKiss’s instructions. The Affiliate should be aware that the product prices and availability may change at any time. It is not recommended that the price be listed or copied on the Affiliate’s website. Maintenance of these product prices is possible only on the websites of PSKiss.
(4) The Program allows the Affiliate to generate cookies only if using a link provided by PSKiss in a visible manner, and if the user opted in to generating the cookie. Invisible links to the order process in order to generate a cookie on the website visitor’s computer are not allowed, e.g., by using iFrames, pop-ups, pop-unders or layers that download advertising materials from PSKiss or the order process, and place a cookie on the visitor’s computer without the visitor’s active participation.
5 Order Processing
(1) PSKiss shall be responsible for all order and payment processing for the referred end user according to the terms and conditions of the underlying Agreement between the Affiliate and PSKiss. PSKiss handles refunds and returns according to the provisions of the underlying Agreement with the Affiliate and provides end user service relating to the administration of the order. The Affiliate shall provide technical end user service for the order.
(2) PSKiss reserves the right to reject queries and orders which do not meet PSKiss’s requirements including, in particular, orders by referred end users who do not meet credit requirements, who do not authorise PayPal payments, or who do not present a valid credit card.
(3) An agreement with the referred end user does not exist until either a written or electronic order confirmation arrives from PSKiss or when PSKiss begins to fulfil the agreement. Typographical, printing and computation errors on the Affiliate’s website are at the expense of said Affiliate.
(1) The Affiliate is entitled to payment of the Affiliate’s Advertising Costs for the duration of participation in this Program. This claim arises if an end user arrives via the link integrated on Affiliate’s website at the order pages hosted by PSKiss for the respective Software Publisher’s Product under this Agreement, and end user uses the automatic ordering system by completing the registration and payment processing, so that the Affiliate’s link is deemed to be directly causative for the entry of the end user into the agreement and end user’s payment, proving that payments are irrevocably completed (“agreements arising in a qualified manner”).
(2) Insofar as the referred end user accepts cookies when clicking on Affiliate’s link and does not delete the cookie, and if the cookie is not overwritten by another Affiliate, proceeds from orders will be taken into account which do not arise in direct succession in a single session, but instead within the lifespan (of max. 180 days) of the cookie used and/ or possibly within the lifespan of a special action of the Affiliate via the integrated link.
(3) PSKiss shall record and compute on a monthly basis the amount of said Commission for the Affiliate.
(4) The computation basis for determining the value of the Commission is calculated by the gross sales price (including taxes, shipping and handling, etc.) actually invoiced to the referred end user. The percentage of the respective Commission shall be agreed in each case between the Affiliate and the PSKiss, but shall not exceed 50% of the effective gross sales price of the software.
(5) The Commission shall not be paid if and insofar as it is determined that the end user will not meet their payment obligations or will meet them only partially, or if for any other reason the invoice to the end user was cancelled (e.g. in cases where a chargeback of a credit card charge, a return of a direct debit payment or a return of the software product occurs). Repayment of previously paid Commission can be requested from the Affiliate in these cases and offset against the next payment or invoiced to the Affiliate at PSKiss’s discretion.
(7) The payment of the Commission shall occur monthly insofar as the sum due exceeds a value of EUR 100* / USD 100*. If this is not the case, the sum due can be retained until a total value of at least EUR 100* / USD 100* is reached, at the latest, upon termination of the Affiliate’s participation in the Program.
(8) The payment can be made by PayPal transfer only.
(9) The invoicing is deemed to be approved if the Affiliate does not object in writing, including a statement of reasons, within four (4) weeks.
* The currency depends on the setting specified by the Affiliate upon registration.
III. Affiliate Management for Software Publishers
1 Participation by the Software Publisher
(1) The Software Publisher’s participation in Affiliate Management requires agreement by the Software Publisher to these General Terms and Conditions and that the Software Publisher integrates the Affiliate Program into Software Publisher’s website using a corresponding link or otherwise make the Affiliate Program available to the Affiliate.
(2) To generate revenue through this Program by means of sales referred by the Affiliate, the Affiliate, after completion of registration, must be activated by the Software Publisher in the Dashboard. The Software Publisher will be informed of the Affiliate’s registration via e-mail with a request for the Affiliate’s activation from PSKiss.
(3) By configuring the settings in the Dashboard, the Software Publisher determines the amount of the Commission based on orders with irrevocably completed payment. If the Publisher does not configure any settings, then the Publisher will accept the default settings proposed by PSKiss when activating the Affiliate. Prior to making changes in the Dashboard regarding the amount of the Commission, written notification must be given to PSKiss and the Affiliate.
2 Integration of the link
(1) PSKiss shall make a hyperlink available to the Software Publisher that links to the appropriate registration form for the Program. The link can be accessed in the secure “Software Publisher Dashboard” on PSKiss’s website under “Affiliate Management”.
(2) Every Affiliate must complete the registration form once prior to participating in the Program and agree to these General Terms and Conditions. Afterwards, the Affiliate can also advertise other Products under this Agreement (see above II. 2) after activation by the respective Software Publisher.
3 PSKiss’s Service Fee/Affiliate’s Commission
(1) For each sale administered by PSKiss of the Software under this Agreement, PSKiss shall receive a service fee of 2% of the gross sale price (including taxes, shipping and handling, etc.) as well as the Commission defined in II. 6 plus VAT or sales tax (where applicable). PSKiss will pay the Affiliate the Commission as defined in section II. 6. Further invoicing terms are derived from the underlying agreements between the Software Publisher and PSKiss as well as the following paragraph.
IV. General Terms
Upon activation of the Affiliate, the Software Publisher grants the Affiliate a non-exclusive, revocable right to use provided advertising material, notices and all further presentations (insofar as available – also known hereafter as “Material”) only for the purpose of designating their website as a “Partner Website” and presenting the designated advertising material. The right to edit or modify the transferred Material without prior written permission of the Software Publisher is expressly excluded. PSKiss and the Software Publisher retain all rights with regard to their logos, their trade name or their trademarks and other industrial property rights. The Software Publisher and PSKiss are authorised to revoke the license granted to the Affiliate at any time by written notice.
2 Changes to These Provisions
PSKiss RETAINS THE RIGHT TO MODIFY AND TO SUPPLEMENT THESE GENERAL TERMS AND CONDITIONS AT ANY TIME. THE CURRENT VERSION WILL BE MAINTAINED FOR VIEWING AS A HYPERLINK ON PSKiss’s WEBSITE IN THE Dashboard. MOREOVER, PSKiss WILL ANNOUNCE ANY CHANGES TO THESE TERMS VIA E-MAIL. THE AFFILIATE AND THE SOFTWARE PUBLISHER ARE ENTITLED TO OBJECT TO SUCH CHANGES WITHIN 14 DAYS OF THE ANNOUNCEMENT OF CHANGED GENERAL TERMS AND CONDITIONS. IF NO OBJECTION IS RECEIVED DURING THIS TIME, THE PARTICIPANT IS DEEMED TO HAVE ACCEPTED THE CHANGES AND THEY WILL BECOME PART OF THE EXISTING CONTRACTUAL RELATIONSHIP. In the event of an objection, the Software Publisher and the Affiliate are entitled to terminate this Agreement as of the date on which these changes take effect, by way of sending a written termination notice to PSKiss to be received by PSKiss no later than the day on which the changed General Terms and Conditions take effect.
If the Software Publisher and/or the Affiliate fail to terminate the Agreement as defined in the previous sentence, the changes are deemed agreed to by the Software Publisher and/or Affiliate.
Correspondence shall take place preferably via e-mail, which is accorded the same status as postal mail. Effective dates are always agreed as “Receipt by Recipient”, unless agreed otherwise. For e-mail, the receipt of the message on the destination mail server is deemed to be the time of receipt.
4 Independence of Contractual Relationships
The parties to the Agreement shall operate their websites independently of one another and are solely responsible for the content, technology used, and design. This Agreement may not be construed as establishing between the parties a company or an association, nor does it establish an employment relationship or a commercial agent agreement. The parties to this Agreement are not authorised to act in the name of the other party and/or to accept or make any statements on behalf of the other party, with the exception that PSKiss is authorised to make statements on behalf of the Software Publisher pursuant to these General Terms and Conditions and the PSKiss agreement (formerly known as the “e-sales contract”).
5 Guarantee by the Affiliate for the Affiliate’s website
(1) The Affiliate shall be responsible for the entire content of the Affiliate’s website. The Affiliate guarantees in particular that (1) the Affiliate will integrate the transferred advertising Material according to the provisions and instructions of the Software Publisher into that Affiliate’s website insofar as said Material were transferred to the Affiliate; (2) the material used on the Affiliate’s website will not contain any representations of violence, explicitly sexually content or discriminatory statements or representations with regard to race, sex, religion, nationality, handicap, sexual preference and orientation, or age, nor will said material be unlawful in any way; (3) the material used on the Affiliate’s website will not infringe upon the rights of third parties, particularly patents, copyrights, trademarks or other industrial property rights as well as general personality rights and cannot be mistaken for the products of the Software Publisher and/or PSKiss or a website operated by the Software Publisher and/or PSKiss; (4) the Affiliate will not send any e-mail without the express consent of the recipient(s) (no spam messages).
(2) The Affiliate shall guarantee the properties of the Affiliate’s websites named in section 1 and indemnify and keep fully indemnified the Software Publisher and PSKiss, its subsidiaries and its and their directors, officers, employees and agents upon demand from any and all claims, demands, costs, liabilities, losses, expenses, and damages (including reasonable attorneys’ fees, costs, and expert witnesses’ fees) arising out of or in connection with any breach by Affiliate of its warranty set out in this clause.
6 Contractual Penalty
(2) The Software Publisher is free to claim the contractual penalty directly from the Affiliate or to request that PSKiss collect the respective amount. If PSKiss is requested to collect the amount, PSKiss must be notified in writing, including evidence, the date as of which the Software Publisher became aware of the possible breach of contract by the Affiliate as defined in II. 4 (4).
(4) If PSKiss collects the penalty, PSKiss will offset the corresponding amount against the next payment to the Affiliate or bill the amount to the Affiliate. PSKiss will forward such amount paid by the Affiliate with the next payment to the Software Publisher.
(5) If PSKiss collects the penalty in accordance with the previous paragraphs, the Software Publisher shall release PSKiss from any claims, demands, losses, costs, expenses and damages resulting from or in connection with the Affiliate deeming the requirements for a contractual penalty claim not having been met either in whole or in part.
7 Limitation of Liability
(1) The parties exclude mutual liability for slightly negligent violation of obligations in connection with this Agreement, with the exception of IV. 5 and II. 5 (3) of this Agreement. This includes in particular the exclusion of liability for lost profit, the loss of data, or interruption of or errors in the operation of the Affiliate’s website. The above liability exclusion also applies to the personal liability of employees, representatives and persons employed to perform the obligations of the parties to the agreement. The limitation of liability does not apply to claims arising through initial incapacity or in case of justifiable impossibility.
(2) Any possible product liability claims are unaffected by the above limitations. Insofar as PSKiss or the Software Publisher violates an essential obligation under the Agreement, the obligation to pay restitution is limited to the damages that typically arise.
(3) PSKiss makes no guarantees in regard to the Software Publisher’s software products offered via PSKiss’s website. Moreover, PSKiss does not guarantee the Affiliate that the operation of PSKiss’s websites will be maintained without interruptions and without errors. Liability is expressly excluded for the consequences of such interruptions or errors.
8 Agreement Period / Cancellation
This Agreement is entered into for an unlimited period of time, and either party may cancel this Agreement at any time in writing without stating the reason.
9 Termination of the Agreement
(1) When the Agreement ends, all usage rights of the Affiliate and Software Publisher accorded by this Agreement with regard to the provided logos or website contents expire.
(2) Upon termination of the relationship under this Agreement, the Affiliate is obligated to undertake all of the technical measures necessary to delete from the Affiliate’s website all links that refer to the websites of PSKiss or of the Software Publisher. The same applies upon termination of Affiliate Management for links of the Software Publisher that were established in connection with the participation in Affiliate Management on the Software Publisher’s website.
(3) PSKiss is authorised to retain final payment for a reasonable time, at minimum for up to 30 days after the end of the respective calendar quarter, to ensure that the correct amount is paid. If the Commission was previously paid by PSKiss, it can be reclaimed from the Affiliate and offset against a payment or invoiced to the Affiliate at PSKiss’s own discretion in case of chargebacks and refunds in respect of the end customer.
10 Final Provisions
(1) If a party is unable to fulfil its obligations under the Agreement for reason of force major, it shall immediately inform the other party thereof and do everything in its power to resume normal operations as quickly as possible. In such case, the affected party shall not be deemed to be in breach of contract and cannot be held liable.
(2) Additional agreements, changes or additions are valid only if confirmed in writing by PSKiss. The same applies to the warranting of properties.
(3) If any provision of this agreement is or becomes invalid, the validity of the remaining provisions shall not be affected. Insofar as a provision is invalid, the parties will agree on a new provision which comes as close as possible to the intent of the invalid provision and which is legally valid.
(4) Even in case of agreements with foreign (non-Israeli) Software Publishers and Affiliates, this Agreement is governed by the law of the State of Israel. The place of jurisdiction for all claims arising in connection with this business relationship is Tel Aviv, Israel, insofar as the parties to the Agreement are businesspeople or one party to the Agreement has or moves his/her registered office or domicile abroad (outside of Israel).