TERMS AND CONDITIONS
GENERAL PROVISIONS – Affiliate advertising conditions
ZinQ Media B.V.
These general conditions shall apply to all quotations, offers and agreements of ZinQ Media BV, a private company with limited liability, and of its subsidiaries and other affiliated companies referring to these general conditions, hereinafter to be referred to as ZinQ.
By entering into an agreement with ZinQ, the other party waives the applicability of any general conditions used by it, howsoever denominated, so that all our agreements shall exclusively be governed by the conditions as used by ZinQ.
These general conditions comprise general provisions and include the following specific condition(s) and further definition(s) to:
2. Affiliate advertising conditions: meaning any communications, announcements and/or advertisements of any nature whatsoever, included and/or inserted in an information carrier of publisher and/or attached thereto.
Offers, Formation and Amendment of Agreements
All quotations and offers issued by ZinQ shall be without engagement. Only after written (order) confirmation or factual performance by ZinQ the agreement shall come into effect. Amendments to assignments shall be binding on ZinQ only to the extent confirmed in writing or factually performed by ZinQ.
In no event shall any agreed delivery dates be deemed to be firm, unless expressly agreed otherwise. Therefore, in the event of an untimely performance, ZinQ shall not be in default until given written notice of default.
Any quotations and/or statements by ZinQ with respect to its services, the address database, numbers of leads, lead quality, transmission issues etc. shall be issued to the best of ZinQ’s knowledge but shall not be binding. Therefore, ZinQ expressly makes reservations regarding any discrepancies and/or changes of any nature and scope whatsoever. At all times ZinQ reserves the right to change, at its discretion, the format, frequency and way of offering and/or distributing, without granting the other party the right to modify or terminate the agreement.
Without any obligation arising on the part of ZinQ, ZinQ may dissolve all or part of its agreement with the other party with immediate effect, by registered letter and without any judicial intervention being required, in the event that:
the other party files for a moratorium on payment of its debts or insolvency or is declared insolvent or offers its creditors a composition outside insolvency or in the event that any of its assets are attached;
the other party ceases its activities, ceases to pursue its objects according to its articles of association, resolves to wind up its company, otherwise loses its legal personality or transfers or merges its business;
the other party fails (properly) to perform any of its obligations ensuing from the relevant agreement, or fails to perform any such obligations in good time, and fails to cure such default within seven calendar days of written summons by ZinQ;
ZinQ ceases the provision of the relevant service.
The provisions of this paragraph shall not affect ZinQ’s other legal rights in the event of non-performance by the other party, such as the right to claim performance and/or payment of full damages.
Intellectual Property Rights
The intellectual property rights and similar rights, including copyrights, trademark rights, patent rights, neighbouring rights, rights to protection of performance, including database rights, in all publications issued and other information services provided by ZinQ are owned by ZinQ and/or its licensors. Nothing in ZinQ’s publications or information services may be reproduced and/or disclosed without the express prior written consent of ZinQ and/or its licensors.
All information provided by ZinQ to the other party, including all information with respect to ZinQ’s services, any documentation, software and applications provided by ZinQ, shall be deemed confidential information. The other party shall:
treat this information strictly confidential and shall not disclose this information, or provide this information to third parties unless the other party is obliged to do so under a judicial order or at the order of a supervisory authority;
only use this information for the purpose for which it was provided to the other party.
ZinQ records data of natural persons for the purpose of performance of the promotional service and whenever such persons contact ZinQ in connection with the provision of services. These data will be used for the performance of an agreement and to inform persons of relevant products and services of ZinQ, its operating companies and carefully selected third parties, which may be of interest to them. If the natural person involved does not wish to receive any such information, he/she may give written notice to that effect to: [email protected]
If, in ZinQ’s reasonable opinion, non-faulty performance by ZinQ is or will be impossible due to force majeure, meaning circumstances beyond its control, it shall be entitled to terminate all or part of the agreement or to suspend performance of the agreement temporarily, without any obligation arising on its part to pay compensation.
Force majeure shall include, but not be limited to, threat of war, war, insurrection, molest, strike, boycott, business interruption, traffic or transport interruption, (data) network interruption, government measures, scarcity of raw materials, natural disaster, fire, nuclear reaction, machine breakdown and otherwise all circumstances under which, according to the principles of reasonableness and fairness, ZinQ cannot be required to perform all or part of the agreement.
In the event that upon occurrence of the situation of force majeure ZinQ has already performed part of its obligations or can perform only part of its obligations, it may invoice the part performed or the part it will be able to perform separately and the other party shall pay such invoice as if it related to a separate contract.
The liability of ZinQ, its employees and the persons for whom ZinQ is responsible and/or liable shall:
in all events be excluded, save in the event of intent or gross negligence on the part of the senior executive staff of ZinQ; and
in case ZinQ is nevertheless held liable, ZinQ’s liability shall in all events by limited to compensation which is attributable to ZinQ up to the invoice value of the part of the agreement from which the liability ensues, and ZinQ shall in no event be liable for indirect or consequential compensation (including compensation due to delay or lost profits).
All (exchanged) information, including recommendations, ideas, opinions and/or instructions, has been composed with due care and to the best of ZinQ’s knowledge, however, ZinQ cannot in any way warrant the correctness and completeness of the information. Therefore, ZinQ waives any liability for damage, of any nature whatsoever, resulting from any acts and/or decisions based on such information. The other party is emphatically recommended not to use such information out of context, but to rely on its professional knowledge and experience and to verify the information to be used. The contents of own advertisements have been composed by or on behalf of advertisers and their correctness, completeness and lawfulness are not verified by ZinQ. Therefore, ZinQ waives any liability for the contents and design of advertisements.
Any complaints, as to the agreement, shall be submitted to ZinQ in writing prior to the performance of the agreement between the other party and ZinQ, however in any event within three days of the date on the agreement and/or closure date.
Any complaints, as to ZinQ’s performance of the agreement, shall be submitted to ZinQ in writing as soon as possible, however in any event within three days of discovery of a defect in the performance, or within three days of the time at which the defect in the performance should have been discovered, in the absence of which all rights of the other party vis-à-vis ZinQ shall be forfeited.
Compliance with laws and regulations
The other party shall comply with all applicable laws and regulations including any applicable codes of conduct. If assistance is needed. ZinQ can provide such assistance when there is a similar relevance with the services provisioned by ZinQ.
These general restrictions apply to every network partner applying to an offer. For the purposes of compliance, every network partner shall commit himself to adhere to all relevant laws and regulations, including all applicable codes of conduct (mobile, e-commerce, lead generation), carrier rules and the below restrictions, related to generating traffic to the applied offer.
These restrictions are here, but not limited to:
Direct pop traffic
It is not allowed for a network partner to generate traffic via distribution channels such as by automatically opening windows or similar traffic channels. It is also strictly not allowed to use internet scripting, frames or programs to generate apparent false clicks/leads/sales on any campaign. Upon request the network partner will need to disclose the application that is used to push the traffic notifications.
Network partners are strictly not allowed to use incentives as traffic to promote our campaigns which only benefit the traffic visitor. Any use of this kind of traffic is subject to prior, explicit approval. Please discuss this matter with your campaign manager.
Content unlocking traffic is only allowed when screen capture of the source is provided to your campaign manager for prior, explicit approval.
Phishing, spamming or the use of spider and robot are under no circumstance allowed or can never be (silently) approved.
Networks are forbidden from conducting any form of illegal activity with end-users via information derived from the campaign or any type of illegal substance or similar activities. The campaigns cannot be associated with, or used to entice users to access content that is associated with any illegal practices such as copyright violations or piracy.
Targeting at minors (persons younger than 18) or children (persons younger than 12) is also a strictly forbidden form of marketing and therefore not allowed.
Portrayal of national celebrities in / from The Netherlands.
‘Instant winner’ advertisings.
ZinQ may assign its rights and obligations under the agreement to a business with which it is affiliated in a group, or assign such rights and obligations to a third party in connection with transfer of ZinQ’s business or any part thereof, or as part of the transfer of a title, a product or a service of ZinQ, without any further consent of the other party being required. By entering into an agreement with ZinQ, the other party consents in advance to such a transfer. ZinQ shall timely inform the other party of such a transfer.
ZinQ may amend the present conditions. Amendments shall also apply to agreements already entered into, starting from the time indicated by ZinQ. ZinQ shall announce any such amendments well in advance in a way to be chosen by ZinQ, which may be, in the case of small amendments, the publication of the amended conditions on the ZinQ website, and/or reference to the amended conditions in the correspondence of ZinQ. Only if the amendment of the conditions has drastic consequences for the rights and obligations of the parties, the other party shall be entitled to request ZinQ to continue the agreement on the basis of the unchanged current conditions rather than on the basis of the amended conditions.
In the event of changes to the name and/or address details, the other party shall notify ZinQ in writing of both the former and the new details at least fourteen days prior to the date on which the change will take effect.
If and to the extent that pursuant to the law any provision of these conditions is deemed unreasonably onerous vis-à-vis a party being a consumer (i.e. a natural person not acting in the course of a profession or business), and such other party nullifies such provision, the nullified provision shall be superseded by a provision which is not unreasonably onerous but promotes ZinQ’s interests to the extent possible.
Disputes and Applicable Law
Any disputes with respect to the agreements entered into by ZinQ shall be submitted to the competent court in Amsterdam, or – at the discretion of ZinQ if it submits a dispute – to another competent court having territorial jurisdiction pursuant to the law.
All agreements entered into with ZinQ shall be governed by the laws of the Netherlands. The applicability of the Vienna Sales Convention is excluded.
2. Affiliate advertising conditions
(Affiliate) Advertisements: any communications and/or announcements and/or advertisements of any nature whatsoever, included and/or inserted in an information carrier of Publisher and/or attached thereto.
Insertion Order: any agreement and/or insertion order on which ZinQ undertakes to place one or more Advertisements.
All agreements, quotations and/or offers of ZinQ with respect to Advertisements, as defined in this section, shall be governed by the below advertising conditions, all in addition to the general provisions.
Payment to publisher
Publisher will invoice ZinQ on a monthly basis at the payout rates reflected in the Insertion Order subject to the present advertising conditions, and for the minimum amount threshold of €1000,- per month. Invoices with a value under €1000,- per month cannot be accepted, but accumulate to the threshold, unless otherwise agreed in advance. The publisher’s invoice will reflect delivery of final lead numbers that are based upon numbers reported by ZinQ to publisher pursuant to the present advertising conditions and ZinQ’s administrative numbers, unless otherwise agreed in advance.
Publisher will be paid on a delivered per lead basis. In the case of any dispute between the parties as to the number of leads ZinQ’s validated data are decisive.
ZinQ will verify each lead transmitted through Publisher. Upon receipt, all Leads will be checked for data validity (i.e. containing valid data inputs for the fields specified in the designated Advertisement) and uniqueness of data (i.e. that the Leads are not present in ZinQ’s database for the designated Advertisement in the past 60 days) and opt-outs (i.e. that the Leads are present in ZinQ’s database with an unsubscribe status in the past 60 days).
Editing of ZinQ’s creative is strictly not allowed without prior written approval by ZinQ. Creative includes, but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the campaign including survey questions and answers. Any changes to the Advertisement, without prior written permission, shall result in the loss of payment of Leads.
ZinQ will actively monitor publisher-activity using a combination of its software and/or third party monitoring services. It is the obligation of publisher to prove to ZinQ that they are not committing potential fraud. ZinQ will hold payment in ‘pending status’ until publisher has satisfactorily provided evidence that publisher is not defrauding the system. ZinQ flags accounts that:
Have click-through rates that are much higher than industry averages and where solid justification is not evident;
Have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;
Have shown fraudulent leads as determined by our subscribers or
Use fake redirects, automated software, and/or fraud to generate clicks or leads.
If publisher is unable to prove to ZinQ that publisher is not committing fraud, the publisher will forfeit its entire commission for all programs and publisher’s account will be terminated. ZinQ reserves sole judgment in determining fraud.
In the event of responses to Advertisements the publisher shall observe the normal care in respect of receiving and forwarding responses that may be expected of a reasonable publisher. Any responses to Advertisements, including registered or express letters, shall be forwarded as regular letters. Publisher respects when opening and/or reading incoming responses, if applicable, to undertake and observe confidentiality as regards the contents thereof.
In addition to the general provisions on liability in the related general provisions below, the following applies to Advertisements in this section:
if, in relation to placing Advertisements, any functionalities are used for the placing of cookies and/or the reading out of data on any peripheral equipment of an (end) user, the other party is fully responsible for the use of such functionality. The other party is responsible for the use of such functionalities being fully compliant with the applicable laws and regulations;
ZinQ has no obligation to inform the other party and/or advise the other party on the applicability of any laws and regulations with respect to the functionalities as set out in the first bullet point directly above. If ZinQ does provide any information on this matter, the other party may not derive any rights from such information;
ZinQ does not accept any liability for any compensation suffered by a third party which is caused by or in any way related to a non-compliance of the functionalities as set out in the first bullet point directly above with the applicable laws and regulations in relation to such functionalities. The other party is liable for any related sanctions imposed on ZinQ by a supervisory authority;
the other party shall indemnify ZinQ and hold ZinQ harmless for all liability vis-à-vis third parties which is caused by or in any way related to non-compliance with the applicable laws and regulations in relation to the functionalities as set out in this first bullet point of this section.
ZinQ Media B.V.