Terms of Use and license for Cooperation Partners

These Terms of Use (the “Agreement”) set forth the terms and conditions that apply to your access and use of certain software systems and related services through which brandTURBO GmbH (“BT”) provides access to you to a dedicated brand Account Management and Content Delivery software platform for a variety of sponsored/branded end user applications and other online services through which content can be delivered to certain end users on various devices on mobile, PC and other applications (collectively, the “Service”).

By using (and in return for us providing) the Service, you agree to be bound by this Agreement. The term “you” refers to your company and its employees and any other party who is given access to your Account Management System. The term “we” or “us” or “our” refers to BT.

BY CLICKING REGISTER YOU REPRESENT THAT YOU HAVE THE CAPACITY AND AUTHORITY TO BIND YOUR COMPANY AND ARE ACTING APPROPRIATELY AND WITH DUE AUTHORITY ON ITS BEHALF.

THIS AGREEMENT CONTAINS (1) AN ARBITRATION PROVISION; AND (2) A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGES AGAINST US THAT MAY ARISE OUT OF YOUR USE OF THE SERVICE. BY USING THE SERVICE, YOU AFFIRM THAT YOU AGREE TO THESE PROVISIONS.

Description of Service.

The Service is provided to you by BT as a free service. The Service enables you to communicate with certain end users who will receive your Content through the Service at your direction. We work on your behalf with the aim of obtaining advertisements that can be delivered to end users receiving your Content. Revenues generated are shared with you per our revenue share terms, as set forth below.

Advertisers and third party links.

The Service may direct advertisements to end users who are receiving your Content through the Service, including display, search or third party links from advertisers, and the display of their offers and products to end users.

We sometimes use specially formatted links for which we receive a commission on resulting sales or clicks from affiliate partners (“Affiliate Links”).

The Affiliate Links will provide links to other websites belonging to advertisers and other third parties. BT does not endorse, warrant or guarantee the products or services available through the sponsored Affiliate Link or other advertisements.

BT is not an agent, distributor, re-seller, broker or otherwise responsible for such third-parties or the activities or policies of those websites or the products or services available on them.

In addition, BT will not and cannot monitor, verify, censor or edit the content of any third-party site or service. BY USING THE SERVICES, YOU RELEASE AND HOLD US HARMLESS FROM ANY AND ALL LIABILITY ARISING FROM ANY THIRD-PARTY WEBSITE OR SERVICE.

Your Use of the Service

Your right to access and use the Service is personal to you and is not transferable by you to any other person or entity unless the person is an employee or agency that works for you to manage the Service. You are only entitled to access and use our Service for lawful, purposes.

Subject to your compliance with this Agreement, BT hereby grants to you, a worldwide, non-assignable, non-sub-licensable, non-transferrable right to: access the Account Management System for the limited and sole purpose of managing content for delivery to end users; and to monitor user and advertisement data relevant to your account as made available to you.

In order for the Service to function effectively, you must also keep your Registration Information up to date and accurate. If you do not do this, the accuracy and effectiveness of the Service to you will be affected.

Your access and use of the Service may be interrupted from time to time due to third-party failures outside of our control (such as unavailability of general Internet infrastructure). Access and use may also be interrupted for periodic updating, maintenance or repair of the Service by BT.

You represent, warrant, and agree that you will not direct or provide or contribute any content to or otherwise use the Services or interact with the Services in a manner that:

  1. Infringes or violates the intellectual property rights or any other rights of anyone else (including BT);
  2. Violates any law or regulation or this Agreement;
  3. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
  4. Jeopardizes the security of your account or anyone else’s (such as allowing someone else to log in to the Services as you);
  5. Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services; or
  6. Circumvents, removes, alters, deactivates, degrades or thwarts any technological measure or content protections of the Service.

If you violate or infringe any of the rules above, we may immediately terminate your right to use or access the Services.

Rules for Posting Content

YOU ARE RESPONSIBLE FOR ALL CONTENT YOU SUBMIT TO THE SERVICE AND COMMUNICATIONS WITH ANY END USERS VIA THE SERVICE. BT SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY THEREFORE.

By submitting any content to the Service (the “Content”) for display via the Account Management system, you represent that you have all necessary rights thereto, and hereby grant to us a perpetual, worldwide, irrevocable, non-exclusive, royalty-free, sub-licenseable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the Content, but only in connection with the provision of the Service, including without limitation for promoting and redistributing and advertising your brand and the existence of branded content and portions of the Service to end users in any media formats and through any media channels.

You also hereby grant each end user a non-exclusive license to access and use your Content through the Service, and to use, reproduce, distribute, prepare derivative works of, display and perform such Content as permitted through the functionality of the Service and under this Agreement. You hereby acknowledge and understand, that Content, once delivered via the System to an end user, may not be retrievable or removable from that end user’s systems and/or devices and thus may continue to be accessible to that end user even after termination of your use of the Services.

You may not post or transmit any message, data, image or program that would violate the intellectual property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks or other marks registered or otherwise not owned or validly licensed by you, in an infringing fashion.

Disclaimer of Representations and Warranties

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH THE SERVICE OR PROVIDED THROUGH THE SERVICE (WHETHER OR NOT SPONSORED) ARE PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. BT MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO OPERATION OF THE SERVICE OR OF THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.

BT MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON THE SERVICE OR OF THE SERVICE AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

BT MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE SERVICE IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION OF END USERS.

Your Indemnification of BT

YOU SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS BT AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS AND EXPENSES, INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES AND OTHER LEGAL EXPENSES, IN WHOLE OR IN PART ARISING OUT OF OR ATTRIBUTABLE TO YOUR USE OF THE SERVICE OR ANY BREACH OF THIS AGREEMENT BY YOU OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD-PARTY WHEN USING THE SERVICE, INCLUDING, BUT IN NO WAY LIMITED TO THE CONTENT YOU PROVIDE TO THE SERVICE.

YOU ARE RESPONSIBLE FOR ALL CONTENT YOU ADD TO THE SERVICE AND WILL INDEMNIFY US FOR ANY AND ALL CLAIMS BY THIRD PARTY FOR DAMAGES ARRISING FROM THE CONTENT.

Ending your Relationship with BT

This Agreement will continue to apply until terminated by either you or BT as set out below. If you want to terminate this Agreement, you may do so at any time by closing your account in the Account Management System. Such termination will take up to 5 business days to de-activate.

Upon de-activation or termination:

  • your account will be closed, and your ability to log in deactivated;
  • all Content displayed through the Services will cease to be disseminated by the Service (though any Content currently displayed may continue to exist on an end user’s device or systems, per above).
  • A final calculation of your revenue share through the date of termination will be made and a final statement will be issued in the ordinary course of business and on the same time frame as described in “revenue share” herein.

Modifications of these terms and conditions.

BT may modify this Agreement from time to time, to reflect: (i) technological developments; (ii) changes to the Service; and (iii) changes to law and regulation.

Any and all changes to this Agreement will be posted on the Account Management system, or you will be notified thereof via email. These changes will not be retrospective (i.e. they will only apply from the date notified, or any later date stated in the notification). If you do not agree to the changes, you are free to exercise your right to stop using the Service and terminate this Agreement (as above). YOU ARE DEEMED TO ACCEPT AND AGREE TO BE BOUND BY ANY CHANGES TO THE AGREEMENT WHEN YOU USE THE SERVICE AFTER THOSE CHANGES ARE POSTED, AND YOU HAVE SIGNIFIED YOUR AGREEMENT THERETO THROUGH OUR “CLICK TO AGREE” SYSTEM.

Your Registration Information

You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your Login ID, allows you to access the Service. By providing us with your email address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate.

If you become aware of any unauthorized use of your log in credentials, you agree to notify BT immediately.

Revenue Share

You shall receive 50% of Revenues (as defined below) generated and paid to BT from advertisements delivered by BT through the Service to end users displaying your Content (your “Revenue Share”)

Payment of your Revenue Share shall be delivered to you via the account you designate in the Account Management system, within 90 days of the close of the calendar month in which such advertisements where delivered and generated Revenues (provided BT is in receipt of payments for such advertisements from its advertisers within that time frame).

“Revenues” shall be defined as the final net amounts received by BT, less deductions, credits and offsets or refunds, and taxes collected, from advertisements directed by us to end users who are receiving your Content via the System. Provided however, that “Revenues” shall specifically exclude any amounts received by BT relating to end users who are receiving your Content, as a result of connection to the System which resulted from BT’s promotional efforts, as evidenced by the use of a tracking link from BT. Provided further that until such time as your Content is delivered to 1,000 daily active end users, no Revenue Share will be earned by you.

Revenue share payments will only be made to the extent the total Revenue Share exceeds 100EUR equivalent, and if the amount is below that threshold, such payment will be added to the following Revenue Share payment.

BT maintains the right to “recapture” Revenue Share, previously paid to you, in the event clawbacks credits or discounts are issued to an advertiser relating thereto.

ARBITRATION CLAUSE GOVERNING LAW AND FORUM.

YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD-PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE SERVICES, AND/OR CLAIMS RELATING TO THE CONTENT, SHALL BE FINALLY SETTLED IN ACCORDANCE WITH THE ARBITRATION RULES OF THE GERMAN INSTITUTION OF ARBITRATION (DIS) WITHOUT RECOURSE TO THE ORDINARY COURTS OF LAW. THE PLACE OF ARBITRATION SHALL BE BERLIN GERMANY. THE NUMBER OF ARBITRATORS SHALL BE ONE. THE LANGAGE OF THE ARBITRATION PROCEEDING SHALL BE ENGLISH. THE ARBITRATOR SHALL APPLY GERMAN LAW.

YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY COURT IN THE FEDERAL REPUBLIC OF GERMANY.

ANY PROVISION OF APPLICABLE LAW NOTWITHSTANDING, THE ARBITRATOR WILL NOT HAVE AUTHORITY TO AWARD DAMAGES, REMEDIES OR AWARDS THAT CONFLICT WITH THIS AGREEMENT.

Miscellaneous

If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.

You agree that if BT does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which BT has the benefit of under any applicable law), this will not be taken to be a formal waiver of BT’s rights and that those rights or remedies will still be available to BT.

All covenants, agreements, representations and warranties made in this Agreement shall survive your acceptance of this Agreement and the termination of this Agreement.