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Terms and Conditions for Publishers

Preamble
1. Next Level S.L., Edificio Banco de Santander, 07002 Palma de Mallorca operates a Digital Performance Marketing Network (Imocash), which enables providers of any services and products (Advertiser) to advertise their services and products online using selected operators of websites and mobile applications (Publisher).

2. Imocash brings Advertisers and Publishers together. Within Imocash Publishers make websites or mobile applications available (Advertising Space) to Advertisers. Whereas Advertisers make banners, pop-ups, texts, graphics, videos, or animations (Advertising Material) available to Publishers.

3. These terms and conditions are the binding agreement governing the legal relation between Imocash and the Publisher.

4. By signing up as an Publisher the Publisher hereby acknowledges that it has read and understood and accepts each of the sections set forth herein.

Publisher
1. Imocash accepts a Publisher at its sole discretion. Imocash only accepts Publisher with the age of at least eighteen years.

2. During the term of this Agreement, Imocash engages Publisher as a nonexclusive Publisher and Publisher agrees to be engaged as such.

3. After being accepted as a Publisher, the Publisher is free to use Advertising Material made available by Advertisers within Imocash.

4. The Publisher shall only use the provided Advertising Material in accordance with the terms and conditions in this Agreement and in accordance with applicable law.

5. The Publisher shall at no time be permitted to alter, modify and/or expand the provided Advertising Material provided by Imocash in any way.

6.The Publisher is obliged and guarantees to maintain its Advertising Space in compliance with applicable law, especially with respect to media laws and regulations, especially but not limited to spam-laws, protection of minor law and criminal law. The Publisher also guarantees to keep its files and systems up to date at all times according to the communications and agreements made with Imocash.

7. Imocash will pay the Publisher a profit-related commission.

Publisher Commission
1. Imocash will pay to the Publisher a commission (Commission).

2. Commissions will be paid to the Publisher only following receipt by Imocash of payment from the Advertiser in question. Imocash may, in its sole discretion and from time to time, elect to advance to the Publisher part or all of the Commissions prior to receipt of payment from the Advertiser, but in no event will Imocash be obligated to do so.

3. The Publisher will supply all information and data that are relevant for the Commission and an invoice before payment will be made.

4. All invoices must include full legal details including VAT number where appropriate.

5. The Publisher acknowledges and agrees that payment of Commissions may be delayed where the Publisher has not provided the relevant data and an invoice and that in no case will Imocash be liable to the Publisher for any loss, costs or expenses directly or indirectly incurred by the Publisher as the result of such delay.

6. In no circumstance will Imocash be obligated to pay Commissions to a Publisher unless and until the aggregate amount of the Commissions due and payable to that Publisher exceeds One Hundred US Dollars.

7. Commissions due and payable by Imocash to a Publisher will not accrue interest.

8. Any Publisher to whom Imocash may pay regular or one off large sums of money may be asked to provide information in compliance with money laundering regulations. Failure to comply will result in monies being withheld until the relevant information and declarations are provided by Publisher.

9. The Publisher is responsible for the payment of all tax and national insurances.

10. If Imocash determines, in its sole discretion, that the Publisher is in breach of this Agreement, particularly if the Publisher has used Imocash in an invalid manner or if Publisher has provided any information that is untrue or inaccurate, not current or incomplete, the account of the respective Publisher may be deactivated effective immediately and with no notice to the Publisher pending further investigation. In this case Imocash may terminate the Publisher’s membership in Imocash and withhold due payments, not only restricted to those payments associated with the invalid activity.

Intellectual Property
1. All materials, in particular data, software, information, documents, signs, marks, symbols and data supplied to Publisher by or on behalf of Imocash shall be and remain the sole and exclusive property of Imocash.

2. Imocash owns all copyrights, trademarks, or any other intellectual Property Rights connected to the services, websites or software necessary for the execution of this Agreement.

3. All such property shall be delivered to Imocash by Publisher, immediately upon demand, or destroyed, as may be requested.

4. The Publisher shall not be entitled (a) to pass on to third parties or allow third parties access to the applications placed at its disposal via the Imocash network or, where applicable, the data contained therein, (b) to modify or otherwise process said applications and data, or (c) to transfer them to other formats and/or use them to set up a database and/or service operation of its own.

5. Imocash hereby grants Publisher a non-exclusive, non-transferable, revocable and royalty free, worldwide License to use the Advertising Material provided by the Advertiser in order to fulfill the purpose of the present agreement, in particular for placement on its Advertising Space and, where applicable, supply to their Sub-Publishers.

6. The Publisher shall not be permitted to process, reproduce or disseminate the Advertising Material to any extent in excess thereof.

7. All rights granted pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement.

Advertising Space Restrictions
1. Advertising Space made available by Publisher must not promote, advocate, facilitate or otherwise include any of the following:
– Racial, ethnic, political, hate-mongering or otherwise objectionable content;
– Investment, money-making opportunities or advice not permitted by law; Violence or profanity;
– Material that displays any telephone numbers, street addresses, last names, URL’s, e-mail addresses or any confidential contact of any third person;
– Material that impersonates any person or entity;
– Material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation;
– Content which is inappropriate or harmful to children;
– Promotion of terrorism or terrorist related activities, sedition or similar activities;
– Software pirating;
– Hacking or Phreaking;
– Any material that contains software viruses or any other computer code, files or campaigns designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.

Fraud
1. If Imocash determines, in its sole discretion, that the Publisher has engaged in any activity that Imocash considers to be fraudulent or which might bring the reputation or standing of Imocash into disrepute either with the general public or with the Clients or potential Clients of Imocash, or otherwise that the Publisher has engaged in activities which might be considered fraudulent, Imocash may but will not be obligated to
(a) suspend or terminate the Publisher’s membership in Imocash, without notice and (b) release to any third party, information relating to the identity and location of the Publisher if required to do so in order to enforce these terms and conditions and any other applicable law.

2. In the event of a suspension or termination, any Commission due and payable to the Publisher at the time of suspension or termination will be deemed to be forfeited.

3. For the purposes of this Agreement, fraudulent activity includes but is in no way limited to:
(a) activity by the Publisher or anyone for whom in law the Publisher is responsible which is directly or indirectly intended to inflate the Commissions payable to the Publisher unlawfully,
(b) the generation of leads other than by a mechanism approved by Imocash,
(c) activity which is determined by the respective Advertiser, in its discretion, to be fraudulent.

4. Imocash may at any time audit Publisher for compliance purposes. Publisher agrees to provide Imocash with any reasonable information necessary to conduct an investigation into Publishers compliance with this Agreement and with the applicable law.

Termination
1. The contract for participation in the Imocash Network is concluded indefinitely.

2. Either party may terminate this Agreement without cause with immediate effect at any time.

3. If the Agreement is terminated the Publisher must cease to use the licenses, sites and services of Imocash immediately.

4. Imocash is entitled at its sole discretion to terminate its websites and services at any time without notice.

5. Notwithstanding termination of this Agreement for any reason, the Publisher covenants and agrees that it will continue to be bound by the terms set out in Sections: Indemnification, Limitation of Liability, Force Majeur, Confidentiality, Applicable Law and Competent Courts of this Agreement.

Indemnification
The Publisher covenants and agrees to indemnify and save harmless Imocash, its parent company and their respective shareholders, directors, officers, and employees (Indemnified Group) from and against any and all claims or judgments, including all associated legal fees, expenses and disbursements actually incurred, arising out of any breach of this Agreement by the Publisher or the exercise by the Publisher of any right under this Agreement or any act or omission of the Publisher, a Sub-Publisher or anyone for whom the Publisher is in law responsible, including without limitation any damages, losses, consequential or otherwise, arising in any manner (including those arising from or incidental to any liability or other lawsuit, claim, demand or other action brought) as a consequence of any act or omission of the Publisher or any person for whom the Publisher is in law responsible, whether or not the Indemnified Group or any of them are named as a party defendant in any such proceedings and whether or not the Indemnified Group or any of them are alleged to be negligent or otherwise responsible for any damage or injury to persons or property. The obligation of the Publisher to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. Imocash may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Publisher. Imocash may participate in the defense of all claims as to which it does not assume defense and control, and Publisher shall not settle any such claim without Imocash prior written consent.

Limitation of liability
1. Imocash disclaims all conditions and guarantees with respect to any matter, whether express or implied (including without limitation any warranty of profitability, satisfactory quality, merchantability, fitness for any particular purpose, title and non-infringement).

2. Notwithstanding any other provision of this Agreement, Imocash additionally disclaims all obligations and liabilities on the part of Imocah and those for whom it is in law responsible for any damages, including, but not limited to, indirect, special, and consequential damages, attorneys’ and experts’ fees, and court costs (even if Imocash has been advised of the possibility of such damages, fees or costs), arising out of or in connection with this Agreement.

3. In no circumstance will Imocash be liable to the Publisher or any third party (including, without limitation, any customers obtained through Publisher’s marketing efforts) for any consequential, indirect, special, punitive or incidental damages or lost profits of the Publisher or the Publisher’s successors or assigns (including without limitation claims for loss of goodwill, use of or reliance on the services provided hereunder, stoppage of other work or impairment of other assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise.

4. The preceding liability exclusions and limitations apply to the same extent in favor of management bodies, shareholders, legal representatives, employees and other vicarious agents of Imocash.

5. The liability of Imocash 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 preceding liability exclusions and limitations.

Force Majeur
1. Imocash shall not be liable or responsible for any failure or inability to perform or delay caused by reason of one or more so called “force majeure” contingencies as fire, earthquake, hurricane, natural disaster, strike, labor disturbance, civil commotion, acts of Government, any Law, action of any labor union or association affecting a Party or the industry within which the Party is engaged, delays in the delivery of materials or supplies, terrorist attack, any act of sabotage, etc.

Noncompetition
The Publisher shall not for any reason, carry on, or be engaged in, or be concerned with, or interested in, or employed by, any person or company engaged in or concerned with or interested in a business which is the same as, or substantially similar to, or in competition with, the businesses of Imocash.

Confidentiality
1. The parties undertake to treat all confidential information, for example of a technical, commercial or organizational 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 authorized 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
(a) 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);
(b) 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
(c) was received from a third party with an unrestricted right to disclose the information.

2. 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.

3. 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.

Data Protection
1. Imocash 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) and all relevant European Data Protection Directives, in Particular Directive 95/46/EC.

2. Imocash shall be entitled to collect and use the Publisher’s person-related data (name of contact partner, address, other contact information, bank details) insofar as this is necessary to enable the Publisher to participate in the Imocash 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 Imocash such use.

3. The Publisher 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.

Applicable Law and Competent Courts
1. These Terms and Conditions and any contracts entered into between Imocash and the Publisher will be interpreted, construed and enforced in all respects in accordance with the laws of the Federal Republic of Germany excluding its conflict of law rules and under exclusion of of the UN Convention on the International Sale of Goods (CISG).

2. If the Publisher is a corporation, limited liability company or commercial partnership or otherwise operates a commercial business (Kaufmann within the meaning of the German Commercial Code) or is a legal entity or special fund organized under public law, the courts in Hannover (Germany) shall have exclusive jurisdiction in respect of all disputes arising out of or in connection with the relevant contract or in connection with these Terms and Conditions.

General
1. All the services, offers and agreements or contracts between Imocash and the Publisher shall be subject exclusively to these Terms and Conditions.

2.Terms and conditions of the Publisher which are in conflict with or differ from these Terms and Conditions shall not be applicable. This shall also apply if Imocash has been informed of such other contractual terms and conditions and has enabled access to the Imocash network in knowledge of such contractual terms and conditions. Any conflicting confirmations by the Publisher on the basis of its own terms and conditions will not be recognized.

3. Imocash may assign this Agreement without the Publisher’s prior consent. The Publisher may not assign this Agreement without the express written consent of Imocash.

4. From time to time, Imocash may amend, supplement or replace this Terms and Conditions in part or in whole, on Notice to the Publisher. If within ten buisness days following Notice of such amendment, supplement or replacement the has not terminated this Terms and Conditions, the Publisher will be deemed to have consented to the same.

5. Any notice or other communication permitted or required by this Terms and Conditions will be in writing and given by personal delivery or transmitted by facsimile or electronic mail to the receiving party at the address provided to Imocash by Publisher. Any such Notice will be deemed to have been received on the date on which it was transmitted by facsimile or electronic mail or delivered.

6. The invalidity of individual provisions of these Terms and Conditions 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 or unregulated matters.

7. These Terms and Conditions constitute the entire agreement between the parties with respect to the subject matter of this agreement, supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.

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