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General Terms & Conditions for the Swiss Cupping AG affiliate program

§ 1 Ambit

(1) These General Terms & Conditions (hereinafter "T&Cs") apply to the contractual relationship between Swiss Cupping AG, Kirchstr. 7, LI-9490 Vaduz, E-mail: cGFydG5lckBzd2lzc3NhbmEuY29t (hereinafter "Swiss Cupping AG") and the affiliates (hereinafter "affiliates") of the PHALLOSAN ® forte affiliate program (hereinafter "affiliate program").
(2) Swiss Cupping AG solely provides services subject to these General Terms & Conditions. The affiliate's Terms & Conditions require the express written approval of Swiss Cupping AG and therefore also do not apply if not objected to by Swiss Cupping AG.
(3) The subject matter of the contract is the participation in the Swiss Cupping AG affiliate program intended to increase sales of the penis enlarger by Swiss Cupping AG through the affiliate's website.
(4) These T&Cs are solely aimed at business as defined by § 14 German Civil Code. Consumers are excluded from participation in the affiliate program.

§ 2 Conclusion of Contract

(1) An contract between Swiss Cupping AG and an affiliate for placing advertisements is solely concluded through the application process of Swiss Cupping AG, in which the affiliate uses to submit an offer to participate in the affiliate program and along with it accepts these T&Cs.
(2) Presenting the affiliate program on the Swiss Cupping AG website does not constitute a binding application for conclusion of contract. It is rather a non-binding request to submit an offer for participation in the affiliate program. An contract is only concluded when Swiss Cupping AG expressly accepts the offer or provides the applicant login information for the affiliate area.
(3) There shall be no entitlement to participation in the affiliate program and conclusion of contract with Swiss Cupping AG.
(4) Only businesses as defined by §14 German Civil Code can become an affiliate.

§ 3 Subject Matter of the Contract

(1) The subject matter of this contract is the participation in the affiliate program of Swiss Cupping AG intended to increase sales of the penis enlarger by Swiss Cupping AG through the affiliate's website. Swiss Cupping AG provides the affiliate with a range of advertising materials (banner ad, text links, videos and pictures) through the affiliate program for this purpose.
(2) The affiliate shall use this advertising material for his website(s) registered for the affiliate program (hereinafter "affiliate website") on own responsibility. The affiliate is free to decide if and for how long to show the advertising material on the affiliate website. He shall be entitled to remove the advertising material at any time.
(3) The affiliate shall receive a commission for advertising and successfully placing transactions (e.g. purchase orders) which is based on the scope and actual value of the service.
(4) The affiliate program does not constitute any other contractual relationship between the parties beyond the scope of this contract.
(5) Swiss Cupping AG reserves the right to change these T&Cs at any time. The affiliate shall be notified of changes via e-mail. In the event the affiliate does not agree to the changes, he shall be entitled to notify Swiss Cupping AG within four weeks from receipt of the notice of changes. In the event such notice is not received within this time frame, the changes shall be considered accepted and become effective upon expiration of the deadline.

§ 4 Affiliate program operating system

(1) Swiss Cupping AG shall provide an affiliate identification number which allows the web server to identify visitors opening the page from an affiliate website. This automatically takes place at the start of the contract between Swiss Cupping AG and the affiliate.
(2) When registering for the program the affiliate will further be prompted to choose a password which, along with the affiliate number, provides access to a user interface. This user interface provides statistics about customer traffic from the affiliate website to Swiss Cupping AG along with information on purchase orders placed through the affiliate.
(3) The affiliate is responsible for embedding this identification in its links to Swiss Cupping AG on its website.

§ 5 Swiss Cupping AG Obligations

(1) Swiss Cupping AG covenants to process purchase orders, invoice, despatch the products, maintain customer contact, process complaints along with providing an information system with the results of the program for the affiliate.
(2) Swiss Cupping AG shall provide the affiliate with a range of advertising means (banners) which routinely must be adapted to the product range. The affiliate may request Swiss Cupping AG at any time to adapt the colour and text of the advertising material to the affiliate website.
(3) Swiss Cupping AG shall operate its website along with the services offered through it, such as providing product data within the technical means available to it. Swiss Cupping AG does not owe error-free and uninterrupted website availability in this respect. The quality and correctness of the products and advertising material offered on the Swiss Cupping AG website is at the sole discretion of Swiss Cupping AG.

§ 6 Affiliate Contractual Obligations

(1) The affiliate is obligated to embed the links to Swiss Cupping AG with his respective identification number so the program can monitor sales through this website.
(2) The affiliate is expressly prohibited to use any advertising material not provided by Swiss Cupping AG or to modify these independently. The advertising materials provide by Swiss Cupping AG must only be used for the purpose specified in this contract.
(3) The affiliate himself is responsible for the contents and continuous operation of his affiliate website and shall not display any contents on it during the term of this contract which violate the applicable law, moral standards or third party rights or which may otherwise harm the reputation of Swiss Cupping AG.

Any distribution of contents which constitute, pertain to or contain

  • Specific medical diagnoses, advice or treatment
  • Racism
  • Glorification of violence and extremism of any type
  • Appeals and inciting offences and contraventions, threats against the life, limb or property
  • Stir hatred against individuals or businesses
  • Statements violating personal rights, defamation, libel and slander of users or third parties as well as violations against the unfair competition law
  • Contents violating copyrights or other violations of intellectual property rights
  • Sexual harassment of users and third parties

are specifically prohibited. Such contents must not be mentioned on the affiliate website itself or the affiliate website link to such contents on other websites.
(4) Any type of abuse, i.e. generating leads and/or sales through unfair practices or inadmissible means violating the applicable law and/or these T&Cs is prohibited. The affiliate is particularly prohibited from either himself or through third parties attempting to use one or more of the following practices to generate leads and/or sales and assigning sales to the affiliate:

  • Fabricating leads or sales which did not actually take place, e.g. through unjustified indication of third party data or specifying incorrect or non-existent data for purchase orders for goods on the Swiss Cupping AG website or purchase orders from the partner or his affiliates and/or purchase orders placed on the Swiss Cupping AG website by persons on the request of the partner.
  • Use of advertising means which doe allow tracking but does not, indiscernibly or does not show the advertising material provided by Swiss Cupping AG in the specified form and/or size
  • Cookie Dropping: Cookies must not be set when opening the website, but only when the user of the affiliate website first voluntarily and knowingly clicked on the advertising material
  • Any other forms of affiliate fraud (particularly cookie spamming, forced clicks, affiliate hopping) along with the use of layers, add-ons, iFrames and postview technology to ensure increased leads
  • The use of terms protected by Swiss Cupping AG or third parties under law, particularly trademark law, such as in search engines, place advertisements or advertising the affiliate website without the express prior written approval of Swiss Cupping AG. The affiliate is prohibited to hold internet websites which may be confused with Swiss Cupping AG or products offered by Swiss Cupping AG. The affiliate particularly must not copy the website, landing pages or other sites of Swiss Cupping AG or copy graphics, texts or other contents from Swiss Cupping AG. The affiliate must avoid giving the impression of the affiliate website being a project of Swiss Cupping AG or that its operator is in any way economically linked to Swiss Cupping AG beyond the affiliate program and this contract. Any affiliate use of materials or contents from the Swiss Cupping AG site along with its logos or brands requires the prior written approval of Swiss Cupping AG.

(5) The affiliate agrees to also otherwise operate the affiliate website in keeping with the applicable law and to particularly provide proper company information.
(6) E-mail advertisement containing advertising material of Swiss Cupping AG or otherwise promoting Swiss Cupping AG may only be used after obtaining consent to e-mail advertisement from all recipients and verifying and documenting the e-mail address through a double opt-in process.
(7) The affiliate shall promptly remove advertising material of Swiss Cupping AG from the affiliate website when prompted to do so by Swiss Cupping AG. This also and particularly applies to websites where Swiss Cupping AG does not or no longer wishes embedding the advertising material of Swiss Cupping AG for any reason.
(8) The affiliate shall abstain from referencing Swiss Cupping AG and the products of Swiss Cupping AG when advertising the affiliate website. The affiliate shall particularly not use context-based advertisements (particularly Google AdWords or AdSense) containing the term "Phallosan" or "Swiss Cupping AG" or which are listed upon use of the keyword "Phallosan" or "Swiss Cupping AG". The same applies to the name of other products of Swiss Cupping AG.
(9) The affiliate agrees to refrain from any electronic attacks of any type on the tracking system and the websites of Swiss Cupping AG. Electronic attacks particularly refers to attempts to defeat, bypass or otherwise suspend the safety mechanisms of the tracking system, the use of computer programs to automatically export data, the use and/or distribution of viruses, worms, Trojans, brute force attacks, spam or the use of other links, programs or methods which may harm the tracking system, the affiliate program or individual participants in the affiliate program.
(10) The affiliate is prohibited from holding internet websites which may be confused with the Swiss Cupping AG website. The affiliate is prohibited from mirroring these or copying graphics, texts or other contents from the Swiss Cupping AG website. The affiliate must particularly avoid giving the impression the affiliate website is a project of Swiss Cupping AG or that the operator is in any way economically linked to Swiss Cupping AG beyond the affiliate program and this contract. Any affiliate use of materials or contents from the Swiss Cupping AG website along with its logos or brands requires the prior written approval of Swiss Cupping AG.

§ 7 Remuneration

(1) The affiliate shall receive a performance-based remuneration from Swiss Cupping AG for sales on the Swiss Cupping AG website placed by affiliate leads.
(2) Entitlement to remuneration is subject to the following requirements:

  • Advertising by the affiliate resulted in a sale by Swiss Cupping AG to the end customer
  • The sale has been recorded ("tracked") by Swiss Cupping AG
  • The sale was approved and confirmed by Swiss Cupping AG and no abuse as defined by Item 6.3 of these T&Cs has occurred.
  • A sale is a purchase order completed and paid for by an end customer on the Swiss Cupping AG website. Reverse transactions – regardless of the reason – do not constitute a sale if the end customer did not pay or his payment was refunded. Reverse transactions taking place more than 8 weeks from the end customer's payment are disregarded.

(3) Purchase orders placed by the affiliate or his family members are not subject to remuneration.
(4) Purchase orders generated based on affiliate leads through affiliate websites or other advertising space where Swiss Cupping AG requested the affiliate to remove the advertising material are not subject to remuneration.
(5) Whether a sale is based on an affiliate lead is determined by the Swiss Cupping AG tracking system. Unless otherwise specified in the affiliate program or individual campaigns the principle "Last Cookie Wins" applies to 14 day cookie terms. Swiss Cupping AG is not obligated to remuneration if the Swiss Cupping AG, an agent of Swiss Cupping AG or third parties cause the tracking system to fail or otherwise malfunction.
(6) Notwithstanding section 5 above, purchase orders are not eligible for remuneration, if
- the respective purchase order was placed during a limited time discount offer or comparable limited time promotion associated with more favourable conditions (particularly a discounted purchase price)
and/or the respective end customer
- was redirected to the Swiss Cupping AG website via AdWord link
or
- a Swiss Cupping AG AdWords link was already clicked on or the Swiss Cupping AG website was visited within 14 days prior to the partner lead being generated (for technical implementation, end customers are blocked for tracking cookies for 14 days after clicking on a Swiss Cupping AG AdWords link or visiting the website).

Swiss Cupping AG will provide the affiliate with a statement of remuneration claims under the customer account. The affiliate shall promptly review the statement. Any affiliate objections to a statement shall be submitted to Swiss Cupping AG in writing within one week. After this deadline the statement is considered correct.
(7) Remuneration claims shall be due for payment two months from the end of the month in which a payment for the respective sale was received from an end customer. Remuneration claims are only due after reaching a minimum payout of 300 €/USD. The amount of Remuneration can be found in your partner account.
(8) Payments are transferred via PayPal with discharging effect using the PayPal information the affiliate provided under the customer account. Any PayPal/bank charges are payable by the affiliate. The specified commission is deemed a gross remuneration and is paid out including the respective value-added tax. The agent is responsible for paying value-added tax. The respective tax authority of the agent's place of residence is authoritative.

§ 8 Liability

(1) Unlimited liability: Swiss Cupping AG is fully liable for intent and gross negligence and as specified by the Product Liability Act. In the case of ordinary negligence Swiss Cupping AG shall be liable for injury to life, limb and the health of persons.
(2) The following limited liability applies to all other cases: In the case of ordinary negligence Swiss Cupping AG shall only be liable for violation of a material contractual obligation the proper fulfilment of which is essential to the contract and the observance of which the affiliate can normally rely on (cardinal duty). Liability for ordinary negligence is limited to the amount of damages foreseeable on conclusion of contract which must typically be expected to occur.
(3) Swiss Cupping AG shall be excluded from further liability.
(4) The above limitation of liability also applies to the personal liability of employees, representatives and agencies of Swiss Cupping AG.

§ 9 Right of Recourse/Contract Penalty

(1) In the case of claims for alleged or actual infringement and/or violation of third-party rights through actions taken by the in connection with use of the affiliate program the affiliate releases Swiss Cupping AG and its employees or agents of any resulting third-party claims. The affiliate further agrees to replace any costs incurred by Swiss Cupping AG due to third-party claims. The eligible costs also includes the cost of suitable legal defence.
(2) In the event of abuse, pursuant to § 6 para. 4 the affiliate agrees to pay a contract penalty to be determined by Swiss Cupping AG using equitable discretion which in the event of dispute shall be reviewed by a court of law. The contract penalty shall not exceed the twelvefold of the affiliate's highest sales month during the prior six months before abuse. This provision does not affect further claims for damages by Swiss Cupping AG

§ 10 Usage Rights

(1) The contents covered by the contract are protected by copyright law/industrial property rights. For the term of this contract Swiss Cupping AG shall grant the seller the simple, non-exclusive right, limited to the authorised user, to use the contracted contents.
(2) The affiliate is obligated to protect the contracted contents from unauthorised access by third parties through suitable measures and provisions.
(3) Any modification, duplication, distribution or communication to the public of the contracted contents or a part substantial in form and extent beyond the scope specified in the above paragraph 1 requires the prior written approval of Swiss Cupping AG.

§ 11 Confidentiality; Data Protection

(1) The parties agree to keep all knowledge of company and trade secrets or other confidential information about the other party gained in line with the contractual relationship confidential indefinitely (including after expiration of this contract), only use these for the contracted purposes, and particularly not disclose these to third parties or otherwise exploit these. Any information marked confidential by a contracting party are irrefutably assumed to be company or trade secrets.
(2) Both parties shall keep the contents of this contract and related documentation confidential (as a company and trade secret).
(3) The parties shall obligate their employees and other persons engaged to perform its contractual obligations to confidentiality commensurate with the above paragraphs 1 and 2.
(4) The parties shall ensure compliance with the relevant data protection provisions when processing personal information (§ 3 para. 1 Federal Data Protection Act).

§ 12 Contract Period/Termination/Expiration of Contract

(1) The contract is concluded indefinitely and may be cancelled by either party at any time without notice and without specifying reasons.
(2) In addition and furthermore this does not affect the right of the parties to terminate the contractual relationship by termination for cause.
(3) For Swiss Cupping AG cause particularly exists in the following cases:

  • Violation of provisions under § 6 of these T&Cs;
  • Violation of a material contract obligation by the affiliate, e.g. contents in violation of the contract and directing the affiliate website or inappropriate use of Swiss Cupping AG communication material by the affiliate;
  • The use or existence of unlawful contents on the website or the use of materials or services without the creator's approval;
  • The use of unauthorised methods such as spam or methods where the sender is not clearly identified or which misleads the visitor.

(4) Upon expiration of the contract the affiliate shall promptly remove all links, connections, graphical material, logos or other types of information provided by Swiss Cupping AG from his website.
(5) Upon expiration of the agreement, Swiss Cupping AG shall compute and pay the commissions rightfully earned by the affiliate and update the commissions paid. From the time the termination becomes effective the affiliate will no longer receive remuneration, even if the affiliate does not remove the link or other advertising material from his website or otherwise acts for Swiss Cupping AG.

§ 13 – Trademark Protection and Registration

The Affiliate is expressly prohibited from applying for or registering the trademark “Phallosan,” or any similar or confusingly similar designation, including logos, slogans, or altered spellings, as their own trademark, domain name, company name, or any other protected identifier in any country or language. This prohibition also applies to translations or phonetic variations of the trademark.

Any violation will result in immediate termination of the affiliate partnership and may lead to civil and, where applicable, criminal prosecution, as well as claims for damages.

§ 14 Final Provisions

(1) In the event the contract contains invalid provisions, this does not affect the effectiveness of the contract as a whole.
(2) Services are solely provided subject to these General Terms & Conditions. The General Terms & Conditions therefore also apply to businesses for all future business relations, including when not expressly agreed again. We hereby object to including the General Terms & Conditions of an affiliate which contradict our General Terms & Conditions.
(3) Swiss Cupping AG reserves the right to change these T&Cs at any time. The affiliate shall be notified of changes via e-mail. In the event the affiliate does not agree to the changes, he is entitled to notify Swiss Cupping AG of within four weeks from receipt of the change notice. In this case Swiss Cupping AG shall have special right to termination. In the event such notice is not received within this time frame, the changes shall be considered accepted and become effective upon expiration of the deadline.
(4) This contract is solely subject to the German law to the exclusion of the CISG.
(5) If the affiliate is a merchant, body corporate organised under public law or public separate estate, LI-9490 Vaduz shall be the place of jurisdiction for any disputes arising from or in connection with contracts between Swiss Cupping AG and the affiliate.