Terms and Conditions for Publishers.

as of April 3rd, 2020

Team Internet AG (“Team Internet”) operates a platform under the TONIC. brand, on which providers and/or intermediaries of goods and services (“Advertisers”) and suppliers of internet user traffic (“Publishers”) can meet.

Advertisers provide advertisements on the platform, which the Publisher can integrate into or onto its advertising Space. Publishers receive a remuneration for traffic provided and purchased by the Advertisers.

1. Definitions

  1. Account: An account refers to the area of the platform which is accessible via a username and password, in which the Publisher may specifically view and (where applicable) change his personal data, transactions and his advertising space(s).
  2. Advertisements: Content promoting an Advertisers product or services, this may be banners, links, emails, landing pages, videos, full-page ads, pop-ups, pop-unders, product data etc.
  3. Advertiser: A natural person or legal entity who makes available or wishes to make available advertising campaigns via the platform. This process is also referred to as traffic procurement. Advertisers may also be operators of a network, which collaborate with further Advertisers (“Advertiser Network”). Advertisers cannot be consumers; The platform is directed only to commercial customers.
  4. Advertising Campaign: Where an Advertiser wishes to purchase traffic via the platform, he sets up an advertising campaign. In that advertising campaign, the Advertiser defines his target group using parameters such as country, keyword, device etc. (the targeting options).
  5. Advertising Space: Domains or websites with or without content, emails, toolbars etc. where advertisements can be placed.
  6. Controller shall have the meaning as defined under the General Data Protection Regulation (GDPR).
  7. Data Processing Addendum: Team Internet’s data processing addendum, accessible at https://www.tonic.com/dpa.html, incorporated into these Terms and Conditions for Publishers by reference, in its current version on the effective date of the agreement between Publisher and Team Internet.
  8. Feed Integration: Publishers may use the platform via API, instead of using it via the self-service interface. This integration is referred to as a “Feed Integration”. In respect of Feed Integrations, there may potentially be additional agreements, which will be made separately.
  9. Intellectual Property Rights: All rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights.
  10. Personal Data shall have the meaning as defined under the General Data Protection Regulation (GDPR).
  11. Platform: Platform refers to the technical solution provided by Team Internet, enabling Advertisers and Publishers to meet in order to buy or sell traffic.
  12. Processor shall have the meaning as defined under the General Data Protection Regulation (GDPR).
  13. Publisher: A natural person or legal entity who makes available or wishes to make available advertising spaces via the platform. This process is also referred to as traffic sale. Publishers may also be operators of a network, which collaborate with further Publishers (“Publisher Network”). Publishers cannot be consumers; the platform is directed only to commercial customers.
  14. Quality Guidelines: Team Internet’s Quality Guidelines, accessible at https://www.tonic.com/quality-guidelines.html, incorporated into these Publisher Terms & Conditions by reference, as amended from time to time in their respective then-current version.
  15. Traffic: Users surfing the internet.
  16. User: A human user of the internet, such as a visitor to a website or a user of a mobile app.

2. Platform Usage

2.1 Intellectual Property

Team Internet shall own all right, title and interest, including without limitation all Intellectual Property Rights relating to the platform (and any derivative works or enhancements thereof), including but not limited to, all software, technology, processes, materials, guidelines, documentation, relating in any way to the platform.

Publisher shall not, directly or indirectly (i) misappropriate or infringe Team Internet’s intellectual property rights, (ii) copy, reverse engineer, decompile, disassemble, disclose or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the platform; (iii) modify, translate, or create derivative works based on the platform; (iv) use or view the platform for the purposes of developing, directly or indirectly, a product or service competitive to the platform; (v) transfer, sell, lease, lend, disclose, or use for co-branding without Team Internet’s explicit written permission, any aspect of the platform under any timesharing, service bureau or other unauthorized method or access thereto.

2.2 Account

Publisher must register for an account to use the platform. All data provided by the Publisher at the time of registration must be correct and up to date at all times. In the event of changes, the Publisher shall notify Team Internet promptly. Publisher shall, upon Team Internet’s request, confirm the current correctness of the data provided and, where necessary, provide additional information requested by Team Internet for purposes of identification or verification.

Publisher shall only register for one account. It is prohibited to register for multiple accounts.

Team Internet reserves the right to accept or reject applications for an account at its own discretion and without providing a reason. If Team Internet blocks any account, irrespective of whether or not this is on a permanent or temporary basis, the respective Publisher may not apply for a new account.

Team Internet reserves the right to determine at its own discretion the scope of available functionalities, tools and services for any account.

The Publisher is responsible for maintaining the confidentiality of the account passwords, for ensuring that the account is used only by the authorized user, for ensuring that accounts and passwords are not shared, and for maintaining the security of its account. Publisher shall limit access to the platform only to authorized users and will promptly disable all access to the account by any Publisher employee, contractor or representative who is no longer authorized to use the platform. The Publisher bears the risk of unauthorised use of passwords and/or the account. Team Internet is entitled to block access to the platform if Team Internet reasonably suspects or determines that the account is accessed by third parties without authorisation.

The Publisher shall promptly notify Team Internet of any defects or faults in the platform and take all such measures as are necessary to enable Team Internet to ascertain the defects or faults and the causes thereof, as well as to facilitate and expedite remediation of the fault.

In the event that Team Internet registers domains for the Publisher in order to properly perform a service, it always does so on behalf of the Publisher, even if Team Internet is registered as the trustee proprietor of the domain. It shall be Team Internet’s obligation to ensure that the registration of the domain does not violate applicable law, infringe any third-party rights and/or the Quality Guidelines at the time of the registration. Once the domain is transferred to Publisher, the Publisher shall bear full liability for the use of such domain, and shall promptly indemnify and hold Team Internet harmless, upon Team Internet’s first demand, against all losses which might arise from its use of the domain. The Publisher shall bear all of the costs of domain registration and for maintaining the domain(s).

Team Internet shall not be obliged to offer any advertisements to the Publisher and/or purchase/remunerate any traffic and the Publisher shall not be obliged to offer any advertising spaces via the platform. Unless otherwise agreed in writing, there shall be no committed revenues.

3. Publisher Obligations

3.1

The Publisher shall comply with all applicable laws, regulations, these Terms and Conditions for Publishers and the Quality Guidelines with respect to its advertising spaces and its usage of the platform and related service, and shall, in particular, (i) not monetise any advertising space with Team Internet; and/or (ii) use or select any addresses (domains); that violate applicable laws, infringe third party rights and/or are in breach of the Quality Guidelines.

The Publisher may not advertise via SMS or text message unless explicitly approved in writing by Team Internet.

In the case, Team Internet reasonably suspects or determines a non-compliance with these obligations and/or if advertising space or Publisher’s usage of the platform are subject to governmental or judicial investigations or injunctions, Team Internet shall be entitled to temporarily or permanently block Publisher’s access to the platform and/or monetization of any advertising space in whole or in part with immediate effect. Team Internet shall promptly notify the Publisher of any such measures. The Publisher may then provide evidence for the compliance of its usage of the platform and/or its advertisements. Team Internet shall remove the block as soon as the Publisher can provide evidence of compliance.

The usage of Publisher Networks requires Team Internet’s prior approval. Where the Publisher is the operator of a Publisher Network, the Publisher warrants that the further Publishers being part of the Publisher Network shall be subject to contractual obligations substantially similar to the obligations under this Clause 3.1. Publishers operating a Publisher Network shall be liable towards Team Internet for acts and omissions of the further Publishers in their Publisher Network as if they were their own acts and omissions.

For purposes of quality assurance, the Publisher permits Team Internet to carry out checks inter alia through the use of spider, proxies and human agents in order to ensure that the advertising space submitted complies with the Quality Guidelines.

3.2

The Publisher shall ensure that the advertising space is accessible at all times and from anywhere in the world.

The Publisher shall ensure that its advertising spaces are correctly displayed by the most common browsers and using the most common software versions.

Where, based on modifications to the platform, modifications become necessary on the part of the Publisher, the Publisher shall implement them within a period of four weeks.

3.3

The Publisher may not undertake any activities whatsoever in order to supply non-organic and non-human traffic and/or to fraudulently increase its revenues generated via the platform, including, but not limited to:

  1. Self-clicking on advertisements or asking others to click on them.
  2. Constant reloading of websites, whether manually or automatically.
  3. Offering users incentives to click on advertisements whether or not for consideration;
  4. To use bots, scripts or other tools oneself, or to have third parties use them, or offer them in order to increase advertising income.

Publishers are prohibited from using the following techniques:

  1. Automatically generated content;
  2. Cloaking;
  3. Forwards that conceal the source of the traffic;
  4. Doorway pages;
  5. Cookie dropping;
  6. Copying of third-party content;
  7. Sending automated enquiries to the platform outside the feed integration;
  8. Modifying platform advertising tags;
  9. Spam (unsolicited direct marketing).

3.4

Publishers who collaborate with Team Internet by means of a Feed Integration must ensure that the selected ad type of the advertisement (e.g. PPR, PPC, POP, EMAIL) corresponds with the traffic type of the advertising space and that the traffic category (adult, non-adult) likewise corresponds.

4. Team Internet Obligations

Team Internet is not obliged to monitor and examine advertising space and/or Publisher’s usage of the platform for their compliance with all applicable laws, regulations and the advertising Quality Guidelines.

Team Internet warrants accessibility of the platform infrastructure of at least 97 percent on an annual average. The foregoing does not include times when the webserver cannot be reached via the internet due to technical or other problems outside the scope of Team Internet’s control or responsibility (e.g. force majeure, third-party fault, DDOS).

To the extent that Team Internet currently provides services or service elements free of charge, the Publisher shall not have a right for specific performance thereof. Team Internet shall have the right to ease the provisioning of such services at any time, or to provide such services only for a fee with future effect, subject to prior notification to Publisher.

Team Internet shall be entitled to change IP addresses and/or domains where necessary (e.g. where technically necessary). A change of IP addresses and/or domains shall not constitute an amendment of the contract and shall not affect the parties’ rights and duties under the contract.

Any analytics functionalities offered via the platform shall only be for convenience and do not necessarily display reliable results. Analytics functionalities usually are based on data from numerous external sources that are not always available and/or correctly provided. Team Internet does not bear liability for the availability and/or correctness of any analytics functionalities.

5. Payments

5.1

The Publisher’s remuneration shall be displayed via the platform and shall be based on either concrete offers for advertising spaces or revenues generated from Advertisers for Publisher’s advertising space, as reasonably determined by Team Internet. The amounts payable displayed via the platform shall only represent a preliminary calculation and such amounts might be adjusted, according to the rules defined hereunder. Remuneration shall only be owed by Team Internet if Team Internet received the respective payment(s) from the Advertiser(s).

5.2

Team Internet shall be entitled to claim reimbursements/clawbacks according to the rules defined hereunder, including, but not limited to reimbursements for traffic that is not compliant with the Quality Guidelines and/or other quality and compliance requirements. Any such reimbursements shall be deducted from the amount payable to Publisher or reimbursed by Publisher if already paid out to Publisher.

In particular, Team Internet is entitled to make adjustments to the amount payable or to claim reimbursements of already paid amounts in the following cases:

  1. Reimbursements claimed by Advertisers, including, but not limited to, due to traffic quality;
  2. Payments not received by Team Internet;
  3. Breach of these Terms and Conditions for Publishers, including the Quality Guidelines,
  4. Disbursement of bonuses;
  5. Deductions of a transaction and/or processing fees;
  6. Adjustments for technical reasons (e.g. inaccurate display of amounts payable due to technical problems);
  7. Adjustments due to other fraudulent activities of Publisher; and/or
  8. Adjustments made based on special agreements with the Publisher.

In a case of reimbursements claimed by Advertisers, Team Internet shall only be obliged to pass on to Publisher the information on the reimbursement provided by Advertiser.

Such claims for reimbursement and/or adjustments are possible for up to 120 days after the amount payable concerned was displayed via the platform.

The Publisher shall address any questions concerning any such reimbursements/adjustments within 30 days of the date of such reimbursements/adjustments. Failure to notify Team Internet within this period shall constitute acceptance of and agreement with the respective reimbursements/adjustments.

5.3

Amounts shall be payable 45 days from the end of the calendar month they were earned by Publisher and displayed in Publisher’s account. If any reimbursements or adjustments to the amount payable shall be made subsequently to the payment to Publisher, the amount of any such subsequent reimbursement or adjustment shall be reimbursed by Publisher. Such reimbursement shall be done by an offset against the next amount payable to Publisher. Team Internet shall also be entitled to claim an immediate refund of any overpaid amounts from Publisher.

In case Team Internet reasonably suspects or determines a breach of these Terms and Conditions for Publishers by Publisher, that might, in Team Internet’s reasonably assessment, result in any adjustments to amounts payable and/or a claim for damages by Team Internet against the Publisher, Team Internet shall be entitled to block any payments until the breach or suspected breach and any potential adjustments and/or claims for damages have been clarified and settled. Such a blocking shall not exceed 120 days.

5.4

The minimum disbursement amount is USD 1,000.

5.5

The Publisher may only exercise a right of setoff against claims by Team Internet in respect of claims on its part which are uncontested or have been adjudicated with res judicata effect. The same shall apply mutatis mutandis with respect to any other potential right to refuse performance, with the exception of the right arising from sec. 320 BGB. The Publisher is only entitled to exercise a right of retention based on counterclaims arising out of the same contract.

5.6

In the event that the Publisher is not in agreement with the amount payable calculated by Team Internet, the Publisher shall furnish all of the server stats (“Raw Stats”) based on which discrepancies may be investigated. Where the Publisher has complaints with respect to an advertisement, he must list the entire click path, together with the tracking ID, so that Team Internet is able to identify the Advertiser in question.

5.7

Publisher shall be liable for and it shall be Publisher’s responsibility to pay all applicable local, state, federal, and/or foreign taxes (if any) and Team Internet shall not pay or withhold any such taxes unless it is Team Internet’s obligation to withhold such taxes, in which case Team Internet shall notify Publisher of any such withholdings.

6. Limitations of Liability and Indemnification

6.1

Team Internet assumes unlimited liability for damages resulting from injury to life, body or health which are based on a breach of duty by Team Internet or a legal representative or vicarious agent.

6.2

Team Internet is furthermore liable without limitation for damages caused by Team Internet or a legal representative or vicarious agent intentionally or through gross negligence, as well as for damages caused by the absence of a quality guaranteed by Team Internet.

6.3

In the case of a slightly negligent violation of essential contractual obligations, Team Internet's liability is limited to the amount of the contract-typically foreseeable damage. Essential contractual obligations are such obligations, the fulfilment of which makes the proper execution of a contract possible in the first place and on the observance of which the contracting parties may regularly rely.

6.4

The liability according to the German Product Liability Act (ProdHG) remains unaffected.

6.5

Any further liability for damages is excluded, especially any liability regardless of negligence or fault. Team Internet and its vicarious agents are also not liable for disturbances of any kind caused by circumstances beyond their control. This applies in particular to a failure or disturbance of the telecommunications line or power supply.

6.6

The limitation period for claims for damages against Team Internet is one year. The foregoing shall not apply in respect of damages intentionally caused by Team Internet, its legal representatives or vicarious agents, or in respect of claims based in tort, or in respect of claims under the Product Liability Act.

6.7

Team Internet shall, in particular, bear no liability for the correct functioning of infrastructures and transmission pathways of the internet or of the information transmitted thereby (for completeness, correctness or timeliness or for ensuring that such information is free of third party rights) where such information is beyond the scope of Team Internet’s responsibility. In further and other respects, Team Internet shall likewise bear no liability for usage outages caused by third parties beyond the scope of Team Internet’s responsibility.

6.8

The provisions set forth above shall also apply in favour of Team Internet’s staff members and other vicarious agents.

6.9

The Publisher shall indemnify and hold Team Internet harmless against all third-party claims arising as a result of breaches of these Terms and Conditions for Publishers and/or an infringement of third-party rights by Publisher. The Publisher shall bear all reasonable costs incurred due to such a breach and/or infringement, including the reasonable costs incurred for legal defence. All further rights, as well as claims for damages by Team Internet, remain unaffected. The foregoing obligations of the Publisher shall not apply insofar as the Publisher is not responsible for the respective breach and/or infringement.

7. Data Protection

7.1 Platform Users

Team Internet processes Personal Data made available in the context of the creation of an account relating to users of the platform (surname, first name, email address, telephone number, password, payment data) and personal data related to the usage of the platform (log files). This personal data is processed by Team Internet as a Controller in order to enable the users to use the platform and to ensure traceability of the usage of the platform. This personal data is processed for the fulfilment of the contract between Team Internet and the Publisher, legal basis accordingly is Art. 6 (1) lit. b) GDPR.

Team Internet shall be entitled to use anonymized data related to the usage of the platform for internal business and/or operating purposes, including, but not limited to, in order to analyze the usage of the platform and to enhance the platform.

Further details on Team Internet’s data protection practices can be found in Team Internet’s Privacy Policy, accessible at https://teaminternet.com/en/privacy.

7.2 Usage of the Platform (Data Processing Addendum)

By using the platform, Publisher collects, processes and/or uses personal data relating to users, including, but not limited to IP addresses, session-based browsing behaviour, geolocation data and device identifiers.

Unless otherwise explicitly agreed, Publisher shall be the Controller of such personal data and Team Internet shall be a Processor. The processing of such Personal Data shall be governed by the Data Processing Addendum between the parties.

8. Confidentiality

8.1

“Confidential Information” means: (i) business or technical information, including product plans, designs, source code, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the services provided by Team Internet, including the platform (current or planned), are Team Internet’s Confidential Information, and all of the foregoing as they relate to Publisher’s business, are Publisher’s Confidential Information); and (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole would reasonably be deemed to be confidential. Confidential Information includes information disclosed prior to or during the term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without the use of any of disclosed party’s Confidential Information and by persons without access to such Confidential Information.

8.2

Publisher and Team Internet each agree not to use any Confidential Information of the other party for any purpose other than as necessary to perform its obligations under the agreement between the parties. During and after the term of such agreement, neither receiving party will disclose any Confidential Information of the disclosing party to any third party without the prior written consent of the disclosing party, except (i) where such disclosure is necessary for the performance of the receiving party’s obligations under the agreement; or (ii) as may be required by laws (provided that the party obligated to make the disclosure shall give the other party advance notice of such requirement to the extent legally permitted). Each receiving party shall be responsible for compliance with the obligations under this section and applicable provisions of the agreement by its employees and contractors, and shall obtain the agreement by each employee and contractor to keep the Confidential Information of the disclosing party confidential and to use it solely as required for the performance of the receiving party’s obligations hereunder.

9. Place of Performance, Jurisdiction and Venue; Applicable Law

The place of performance is the registered office of Team Internet. Exclusive jurisdiction and venue, to the extent permitted by law, shall lie with the courts of Munich, Germany, for all disputes arising out of the parties’ contractual relations. Team Internet may also file suit in the court with jurisdiction over the Publisher.

With respect to contracts and claims arising therefrom made by Team Internet on the basis of these Publisher Terms and Conditions, irrespective of the type thereof, the sole governing law is the law of the Federal Republic of Germany but excluding application of German international private law and of the United Nations CISG.

10. Miscellaneous

10.1

No oral ancillary agreements exist. Amendments or addenda to this contract shall only be valid if made in written form. The foregoing shall also apply to any amendment to this written form requirement.

10.2

The Publisher may not assign the rights and obligations under the agreement to a third party except with the prior written consent of Team Internet.

10.3

Team Internet may make amendments to these Terms and Conditions for Publishers where these become necessary due to changed circumstances (e.g. changes in legislation or court jurisprudence) and are not unreasonable to the Publisher. Team Internet shall notify the Publisher of such changes in written or electronic form (normally in the form of a new version of these Terms and Conditions for Publishers). Such amendments shall be notified to the Publisher in a timely manner before they take effect (wherever possible, two months in advance). The Publisher is authorised to object to such amendments within 14 days of receipt of the notice of the amendment. Objection by the Publisher is deemed to constitute notice of termination of the agreement to the next possible date of termination. Where the Publisher does not object, amendments are deemed to have been accepted.

10.4

Should individual provisions of these Terms and Conditions for Publishers be or become invalid, this shall not affect the validity of the remaining provisions. The parties undertake to replace an invalid provision with a valid provision which comes as close as possible in its content to the economically intended meaning and purpose of the invalid provision. This shall apply mutatis mutandis to any loopholes in the contract.

10.5

In the event of a conflict between any provision of these Terms and Conditions for Publishers and any additional agreement (e.g. in respect of Feed Integrations) or order form referencing these Terms and Conditions for Publishers, the terms of the additional agreement or order form shall prevail with respect to the matters covered by the applicable additional agreement or order form.