This Agreement is made between Xara GmbH of Quedlinburgerstrasse 1, Berlin 10589, Germany (“Xara”) and you, the affiliate (“Affiliate”).
You may participate in the Xara Affiliate Program if you are at least 18 years old and have full legal capacity. By submitting an application to this Affiliate Program you are agreeing to the following Terms & Conditions.1. In the Agreement the following words are defined:
the agreement set out in this document including any amendments agreed in writing;
Websites, social media channels and mailings belonging exclusively to the Affiliate and excluding any third party sites or mailings whatsoever
information (however recorded or preserved) acquired by a party under the Agreement which is confidential to the other party because it:
a. concerns its business, affairs, customers, clients, suppliers, plans, intentions, market opportunities, operations, processes, product information, know-how, designs, trade secrets or software and the terms of any agreements including this Affiliate Agreement; or
b. has been developed by the other party under the Agreement;
any unique End User who pays for the Xara services resulting directly from promotion of the Xara services by the Affiliate. For the avoidance of doubt, an End User shall not qualify as a Converted Lead if that End User has previously paid for any Xara services;
any person (individual, partnership, company or other organization) who makes use of a web browser to access and view web pages;
the Xara services sold on www.xara.com
Xara’s trade names, Website, trade or service marks, trade dress, logos, domain names, coupon codes, banner ads, graphics, descriptions of the Xara services, associated key words, and links, or other copy or content of any type that is provided by Xara to the Affiliate for the purposes of this Agreement. Promotional Content and Website links
2. The Affiliate is authorized on a non-exclusive basis to promote the Xara services to its user base solely through its Affiliate Channel using the Promotional Content.
3. Xara agrees to provide the Affiliate with the Promotional Content solely for the purposes of promoting Xara services. Use of the Xara’s Promotional Content is subject to the restrictions of this Agreement and Xara can object to any use of Promotional Content if it deems the use to be inappropriate or inaccurate or for any other reason in its absolute discretion.
4. Each Party retains sole and exclusive ownership and control over its websites and is solely responsible for maintaining and updating its own website.
5. Xara is not liable in any way for any claims relating to use of the Promotional Content by the Affiliate and the Affiliate agrees to indemnify Xara against all and any claims, damages, losses, liabilities, costs and expenses relating to the Affiliate’s use of the Promotional Content.Tracking of End Users and Compliance
6. The Affiliate will use and implement tracking mechanisms provided by Xara, in order to permit Xara to accurately track Converted Leads.
7. In performance of its obligations under this Agreement, the Affiliate a) will comply with all applicable laws and regulations, including consumer protection and unfair trading regulations and b) will not engage in any fraudulent activities such as cookie stuffing or link interception c) will not design their website in a manner that could be mistaken for Xara’s website or give the impression that it could be Xara d) will not incorporate Xara material that is not provided as part of the affiliate program without permission e) will not incorporate the Xara trademark or tradenames in their domain name or meta text, or use them in any search keyword advertising or targeting f) will not use the Promotional Content outside the Affiliate Channel g) use the tracking mechanisms to place orders on their own behalf. In the event of breach of any of these restrictions Xara will be entitled to terminate the agreement without further notice and cancel all commission acquired through such a breach.
8. The Affiliate undertakes and covenants that at all times he will comply with the requirements of all relevant data protection regulations including the General Data Protection Regulation (Regulation (EU) 2016/679 in respect of recording End User’s details or obtaining or making use of email addresses.
9. Affiliate warrants that its Affiliate Channel does not:
a. promote sexually explicit materials;
b. promote violence;
c. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
d. promote illegal activities; or
e. incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law.Commission Calculation & Payments
10. Xara will pay the Affiliate a fee equal to 20% of net revenue (after sales tax and discounts) of the initial payment of an End User subscription for each Converted Lead that has come through a recognized tracking method provided by Xara. Xara reserves the right to reclaim commission in the event of full or partial refund of the original purchase or chargeback, or if an excess payment has been made for other reasons. Commission will not be paid where conversions occur in violation of any of the terms of this agreement, or after termination of this agreement. The fee is exclusive of any VAT payable by Xara to the Affiliate. Xara will request an appropriate invoice before paying commission. Approval and acceptance of any Converted Lead shall be at Xara’s sole discretion, and Xara may reject any such Converted Lead or any acceptance for any reason.
11. Commission payments are made by Xara through its chosen payment processor, currently Paypal. The Affiliate is responsible for creating and maintaining a payment processor account and passing correct and current account information and contact information to Xara for the purpose of receiving commission payment. Xara is not responsible for any commissions not received due to suspension or termination of the Affiliate’s Paypal account.
12. All payments will be made in EUROs at the end of the month after the tracked sale, subject to a minimum of EURO 20. Affiliate may request payment in a different currency, in which case the conversion rate will be determined by Paypal’s usual procedure. The Affiliate is responsible to Paypal for any conversion fees. Limited licence
13. Xara hereby grants the Affiliate, for the term of this Agreement, a limited, revocable, non-exclusive, non-transferable, royalty-free licence to:
a. use and reproduce the Promotional Content in strict compliance with this Agreement; and
b. display the Promotional Content on the Affiliate’s website and with such other guidelines as may be identified by Xara from time to time solely for the purpose of marketing Xara services as provided in this Agreement.
14. The Affiliate must not alter or permit alteration of, or remove or modify or permit removal or modification of, any of the Promotional Content, or other identifying marks placed by Xara or its agents on the services or associated documentation or literature, without Xara’s prior written approval. Except as specifically provided in this Agreement, nothing in this Agreement gives the Affiliate any right, title or interest in any of the Promotional Content, services, any underlying intellectual property, or goodwill of Xara. The Affiliate acknowledges that the Promotional Content, services, any underlying intellectual property, and any related goodwill are the sole and exclusive property of Xara. The Affiliate must not, during the term of this Agreement and afterwards, challenge or assist others to challenge the Promotional Content or its registration or attempt to register any trademarks, service marks, marks, trade names or domain names that are in any way confusingly similar to the Promotional Content.
15. The Affiliate agrees to comply with Xara’s quality standards and trademark guidelines in usage of the Promotional Content, and will use them exclusively for the benefit of Xara.
16. The Affiliate agrees that it will cease using the Promotional Content immediately upon request, and this license terminates automatically when this Agreement terminates.Termination
17. A party can terminate the Agreement for any reason by giving the other 7 days' notice.
18. A party can terminate the Agreement immediately by giving written notice to the other party if that other party:
a. does not pay any sum due to it under the Agreement within 30 days of the due date for payment;
b. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied;
c. persistently breaches any term of the Agreement;
d. is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
e. is a company over any of whose assets or property a receiver is appointed;
f. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986); or
g. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation.
19. Termination of the Agreement does not affect either party’s rights (including rights to be paid) or remedies as at the date of termination. Other than as set out in the Agreement, neither party has any further obligation to the other under the Agreement after its termination.
20. On termination of the Agreement for any reason, the Affiliate must permanently remove all Promotional Content from its Affiliate Channel.Confidentiality
21. Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
a. where required by law, court order or any governmental or regulatory body;
b. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
c. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
d. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
e. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.Limitation of liability
22. The Agreement constitutes the entire agreement between the parties and replaces all prior discussions, arrangements or agreements that might have taken place. All warranties, conditions and other terms implied by statute or common law are excluded from the Agreement to the fullest extent permitted by law, without in any way limiting or excluding liability for personal injury, fraud or fraudulent misrepresentation.
23. The total liability of Xara to the Affiliate in relation to any event or series of related events is limited to the fees due to the Affiliate under this Agreement.
24. No party will be liable to any other party under the Agreement (except where required by law) for any:
a. special, indirect, consequential or pure economic loss, costs, damages, charges or expenses;
b. loss or corruption of any data, information, database or software;
c. loss of profits;
d. loss of business;
e. depletion of goodwill and/or similar losses;
f. loss of anticipated savings.Changes to Xara services
25. Xara can change any terms of Xara services including pricing, commission rates, payment terms and services included in the Affiliate Program. Should the Affiliate deem a change unacceptable then the Affiliate may terminate the agreement, continuing to participate in the Affiliate Program after such changes shall be deemed acceptance. The Affiliate must immediately replace existing Promotional Content with any updated Promotional Content as provided by Xara.Data protection
26. Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) the General Data Protection Regulation and any national implementing and supplementary laws, regulations and secondary legislation. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements. The Affiliate must not sell or pass on any Converted Lead data to any third party.General
27. No Party may assign, transfer, sub-contract or otherwise make over to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other Party.
28. Both Parties and the signatories to this agreement warrant that they are authorized and permitted to enter into this agreement, and have obtained all necessary permissions and approvals.
29. Affiliate is an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between Affiliate and Merchant.
30. No third Party has any right to enforce or rely on any provision of the Agreement.
31. If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
a. Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid post or sent by email to the email address notified by the other Party. Notices:
b. sent by post will be deemed to have been received, on the tenth business day following the date of posting;
c. sent by email will be deemed to have been received on the next business day after sending.
32. It is the responsibility of the Affiliate to ensure that contact information in the Affiliate account is at all times accurate and up to date. Notifications sent to the email address or postal associated with the Affiliate account will be deemed to have been received even if they are no longer current.Governing law and jurisdiction
33. This Agreement will be governed by and interpreted according to German law. All disputes and claims arising under the Agreement (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the Court of Berlin.