Terms and conditions • Compado

Effective Date: January 16, 2024

Context
The present terms and conditions (“Terms and Conditions”), together with any insertion order(s) and/or offer(s) accepted by the advertiser constitute the service agreement (“Agreement”) between the advertiser (“Advertiser”) and Compado GmbH, a limited liability company under the laws of Germany, registered with the commercial register (Handelsregister) of the local court of Charlottenburg (Amtsgericht Charlottenburg) under no. HRB 166101 B, having its business address at Uhlandstraße 171-172, 10719 Berlin, Germany (“Publisher”). The Publisher and the Advertiser are jointly referred in the Terms and Conditions to as the Parties and, individually a Party.

The Publisher develops automated ranking and recommendation technology for commercial products. The Publisher specialises in consumer lead generation for advertisers by driving high quality traffic and leads to the advertisers’ websites.

In the event of a conflict between the Agreement, on the one hand, and the terms of any other prior communication from the Advertiser or prior agreements, contracts or understandings between the Parties, the Agreement shall supersede and replace any and all of them except for the agreed Performance Fees.

In the event of a conflict between the Agreement, on the one hand, and the terms of any post additional agreements, contracts or understandings that aim at completing the terms of the contractual relationship between the Parties, those additional agreements, contracts or understandings shall prevail.

Scope of services
The Publisher provides at least one of the two of the following services to the Advertiser (the “Services”):

providing traffic in order to generate sales and/or leads and increase the Advertiser’s database with users based on performance (“Performance-Based Services”); and/or
placing ads on the Publisher’s websites (“Ad Placement Services”).

Subject to Advertiser providing the relevant creatives, logo, images, subject title and/or content, available promotional materials, tracking links (the “Marketing Material”), the Publisher will publish the Marketing Material on sites and in placements as specified and agreed by the Advertiser.

It is agreed between the Parties that there is no restriction regarding the traffic sources to be used by the Publisher while providing the Services. More especially, the Publisher is allowed to use any tools or traffic sources created and operated by any of its affiliated companies. In case the Parties wish to define together some restrictions regarding traffic sources, they may do so in a separate agreement (email being sufficient).

Subject to the Advertiser communicating the wish to adapt the Performance Fees (so called payout changes), the Publisher will process the request within 72 hours.

Additionally, it may have been agreed in the Insertion Order entered into by the Parties that other services will be provided by the Publisher.

Term
The term of this Agreement shall commence (i) on the registration date of the Advertiser on the Publisher’s platform or (ii) on the signing date of the Insertion Order and shall remain in effect in both cases, unless terminated earlier in accordance with the provisions of this present clause (the “Term”).

For the Ad Placement Services, either Party may terminate the Agreement by giving written notice (email being sufficient) to the other Party of its intent not to renew for the following month at least 7 (seven) days prior to the end of an expiring month.

For the Performance-Based Services, either Party may terminate the Agreement at any time during the Term with immediate effect by giving written notice (email being sufficient) to the other Party within 48 (forty-eight) working hours.

IP rights
The Publisher agrees and acknowledges that the Advertiser is the sole owner or valid licensee of:

The Intellectual Property (IP) rights in the Marketing Material,
Any other Advertiser trademark, logos and all other IP rights used by the Advertiser in the course of its business.

During the Term and subject to this Agreement, the Advertiser hereby grants to the Publisher a worldwide, non-exclusive, non-transferable, royalty-free right and license to display, reproduce and distribute the Advertiser IP rights solely for the purpose of the Publisher performing its obligations under the Agreement.

The Parties hereby acknowledge that, except as specifically provided herein, nothing in this Agreement shall confer on either Party any right of ownership in the other Party’s IP rights. The Parties shall not alter, decompile, reproduce, or copy the other Party’s content, links, or trademarks, or otherwise utilise the other Party’s IP rights, except as permitted under the Agreement.

The Advertiser reserves the right to modify its content, links, or marks from time to time at its sole discretion, upon written notice to the other Party.

Data protection

In the event that the processing of personal data is required for the performance of the Agreement, the Publisher shall process such personal data for the sole purpose of the Agreement.

Payment of the Fees – Common rules to all Services

In consideration for the Services, the Advertiser agrees to pay the Publisher the fees at the rate agreed by both Parties in a separate agreement (email being sufficient) for the Performance Fee and the Ad Placement Fee (the “Fees”).

The Fees shall be paid by the Advertiser to the Publisher within 7 (seven) days of receipt by the Advertiser of a corresponding invoice. Any other agreement on this payment term condition may be made between the Parties in a separate agreement (email being sufficient).

Without prejudice to any other right or remedy that it may have, if the Advertiser fails to pay the Publisher any sum due under this Agreement on the due date:

The Advertiser shall pay the following fees:

A penalty equal to €25 after the first reminder sent to the Advertiser within 7 (seven) days of the due date (the “First Fee”);
A complementary penalty to the First Penalty that is equal to €50 after the second reminder sent to the Advertiser within 14 (fourteen) days of the due date (the “Second Fee”);
A complementary penalty to the First and Second Penalties that is equal to €90 after the third reminder sent to the Advertiser within 21 (twenty-one) days of the due date (the “Third Fee”).

The Advertiser shall pay interest on the overdue amount at the rate of 5% on the invoice’s overall amount on a yearly basis. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
Moreover, the Advertiser shall pay the different fees described in the previous paragraph (i) and the interest described in the previous paragraph (ii) together with the overdue amount.
The Publisher may suspend all or part of the Services until payment has been made in full.

Fees – Rules applicable only to the Performance-Based Services

7.1. For Performance-Based Services that are based on leads

In consideration for the Services, the Advertiser agrees to pay the Publisher the fees at the rate agreed by both Parties via email for all leads that are obtained as a direct result of the Services (the “Performance Fees”).

The Advertiser shall track and report to the Publisher the number of conversions using the conversion tracking system agreed on between the Parties in a monthly report until the 2nd (second) working day of the following month (the “Reporting Deadline”).

For clarity purposes, two hypotheses should be distinguished depending on the sending by the Advertiser of the numbers within the Reporting Deadline: (a) if the Advertiser has reported its numbers within the Reporting Deadline, or (b) if the Advertiser has not reported its numbers within the Reporting Deadline.

In the event the Advertiser has reported its numbers within the Reporting Deadline

If, upon receipt of the Advertiser’s numbers within the Reporting Deadline, the Publisher notices discrepancies between its own numbers and the Advertiser’s reported numbers, the following process will be respected:

The Publisher will issue to the Advertiser an invoice with the Performance Fees’ amount to be paid, such invoice will be based on the Publisher’s numbers.
After the sending of the invoice, the discrepancies that appeared between the Parties’ numbers shall be cleared out by the Parties during the month of the sending of the invoice. It is understood and agreed by the Advertiser that the check of the numbers may not enable a postponement of the payment of the Performance Fees.
In the situation it appears that the Publisher has invoiced the Advertiser with a higher amount than it should have, a credit note will be issued to the Advertiser’s benefit and taken into account by the Publisher with the following invoicing cycle.

If the Publisher’s numbers and the Advertiser’s perfectly match, there will be no need to further check the numbers and the Publisher will issue to the Advertiser an invoice based on the Advertiser’s numbers.

In the event the Advertiser has not reported its numbers within the Reporting Deadline

In such a hypothesis, the Publisher will issue an invoice to the Advertiser with the Performance Fees’ amount basing itself on its own numbers.

It is agreed between the Parties that the Advertiser may still send its numbers after the Reporting Deadline. In case of discrepancies existing between the Parties’ numbers, they shall be cleared out by the Parties during the month of the sending of the invoice.

As described in Section 7.1.(a).3 above, if the Publisher has invoiced the Advertiser with a higher number than it should have, a credit note will be issued to the Advertiser’s benefit and taken into account by the Publisher on the following invoice.

Regardless of the reporting within the Reporting Deadline and presence of discrepancies or lack of, the Performance Fees shall be paid by the Advertiser to the Publisher within 7 (seven) days of receipt by the Advertiser of a corresponding invoice.

It is agreed between the Parties that the Advertiser may mention to the Publisher cancellations of transactions within the Reporting Deadline. If cancellations of transactions are invoked after the Reporting Deadline, cancellations will not be taken into account.

7.2. For Performance-Based Services that are based on events other than leads (sales and other)

In consideration for the Services, the Advertiser agrees to pay the Publisher the fees at the rate agreed by both Parties via email for all sales and/or other events that are obtained as a direct result of the Services (the “Performance Fees”).

The Advertiser shall track and report to the Publisher the number of conversions using conversion tracking system agreed on between the Parties in a monthly report until the 2nd working day of the following month (the “Reporting Deadline”).

In the event the Advertiser has reported its numbers within the Reporting Deadline

The Publisher will issue to the Advertiser an invoice with the Performance Fees’ amount to be paid, such invoice will be based on the Publisher’s numbers.
After the sending of the invoice, the discrepancies that appeared between the Parties’ numbers shall be cleared out by the Parties during the month of the sending of the invoice. It is understood and agreed by the Advertiser that the check of the numbers may not enable a postponement of the payment of the Performance Fees.
In the situation it appears that the Publisher has invoiced the Advertiser with a higher amount than it should have, a credit note will be issued to the Advertiser’s benefit and taken into account by the Publisher with the following invoicing cycle.

In the event the Advertiser has not reported its numbers within the Reporting Deadline

In such a hypothesis, the Publisher will issue an invoice to the Advertiser with the Performance Fees’ amount basing itself on its own numbers.

As described in Section 7.2.(a).3 above, if the Publisher has invoiced the Advertiser with a higher amount than it should have, a credit note will be issued to the Advertiser’s benefit and taken into account by the Publisher on the following invoice.

It is agreed between the Parties that the Advertiser may invoke cancellations of transactions within 45 (forty five) days of the expiry of the month the transaction has occurred (the “Period of Invokable Cancellations”). If cancellations are invoked within the Period of Invokable Cancellations, such events may be taken into account by being deduced from subsequent invoices. However, the Parties may not deduce any cancellations of transactions from subsequent invoices if those cancellations have not been reported to the Publisher within the Period of Invokable Cancellations.

Additional Fees

Depending on the scope of Services agreed on between the Parties, the Advertiser may have to pay the Publisher an ad placement fee whose amount is agreed on by both Parties via email for the Ad Placement Services. The fee may be charged together with the Performance Fee (the “Ad Placement Fee”).

In case other services have been decided between the Parties (as mentioned in Section 2 of the present Terms and Conditions), corresponding fees will apply and be charged to the Advertiser. Such fees will be described in the Insertion Order entered into between the Parties.

No guarantees and acceptance of risk

The Advertiser acknowledges that the Publisher has not made and does not make any guarantees with respect to the results of its Services including, but not limited to, level of audience or traffic of any website or any minimum number of impressions. By way of emphasis, if the Publisher provides the Advertiser with any projected traffic statistics or search engine rankings, it does so only as a courtesy to the Advertiser and will not be held liable for any claims relating to said projections.

Representations and warranties

The Advertiser represents and warrants that:

It is duly authorised to enter into this Agreement and to perform all obligations herein,
The execution of this Agreement and the performance of its duties and obligations under this Agreement does not and shall not violate any law or regulation to which the Advertiser is subject to or by which it is otherwise bound,
No Marketing Material contains any computer viruses or other damaging code nor violates any rights of any third parties, including but not limited to copyrights, trademarks, patents, trade secrets, rights of privacy, right of publicity and civil rights,
Marketing Material comply with all applicable laws and regulations. The Advertiser remains solely responsible for the contents of the ads or branded content and for compliance with any laws regulating such advertising or branded content

The Publisher represents, warrants and covenants:

To fulfil its obligations under the Agreement with appropriate care, skill and diligence,
That it shall not modify, alter nor deviate from the Marketing Material provided by the Advertiser, and only display and/or distribute Marketing Material, content and/or offers in the form provided by any locations agreed with the Advertiser,
That all locations and media on which any Marketing Material is placed through the Agreement must not contain any indecent, harmful, abusive, obscene, defamatory or unlawful content,
That it uses and will continue to use commercially reasonable efforts to ensure that there is no slavery, human trafficking, and/or child or forced labour in any part of its business,
That it has not been convicted of any offence involving slavery, human trafficking, and/or child or forced labour,
That it has not currently and has not in the past been the subject of any investigation, inquiry or enforcement proceedings in relation to an alleged offence in connection with slavery, human trafficking, and/or child or forced labour,
That the Services provided and execution of the campaign will comply with all relevant laws, regulations applicable.

Confidentiality

During the Term of the Agreement and after termination or expiration of the Agreement, a Party (the “Receiving Party”) who has had information of a confidential nature (the “Confidential Information”) disclosed to it by the other Party (the “Disclosing Party”) may not use such Confidential Information for a purpose other than the performance of its obligations under the Agreement and may not disclose Confidential Information to any person except with the prior written consent of the Disclosing Party unless:

The Receiving Party has shared the Confidential Information with its directors, other officers, employees to the extent that disclosure is reasonably necessary for the purposes of the Agreement, in which case it shall ensure that the disclose complies with the Receiving Party’s obligations of confidentiality under the Agreement as if it was the Receiving Party,
Required to do so by law or by a compelling order from a competent regulatory authority, provided that it gives notice to the Disclosing Party of the disclosure as soon as practicable.

This does not apply to Confidential Information which:

Is at the signing date of the Agreement, or at any time after that date, becomes, publicly known other than by the Receiving Party’s or Receiving Party’s disclosee’s breach of the Agreement, or
Can be shown by the Receiving Party to the Disclosing Party’s reasonable satisfaction to have been known by the Receiving Party before disclosure by the Disclosing Party to the Receiving Party.

Reservation of rights

The Publisher, in its sole discretion, may at any time and for any reason, without notice, modify or remove from or refuse to publish any Marketing Material on any platform or website over which the Services are distributed, such as in the case that the platform or website has been compromised. The Publisher shall make reasonable effort to notify the Advertiser of any such actions and explain reasons for removal or refusal to publish.

Without limiting the foregoing, the Publisher reserves the right to preserve and disclose any Marketing Material or other information as Publisher reasonably believes is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of the Publisher and the public.

In the event that the Publisher has to remove the Marketing Material, the Advertiser shall not pay the Fees for the period the Marketing Material has been removed from the platform or website.

Notices

Any statement or other declaration based on or in connection with this Agreement (collectively Notices) shall be made in writing, unless a stricter form is required by mandatory law. The Notice shall be delivered by hand, by post or courier or as PDF copy by email.

Changes to the present Terms and Conditions

The Publisher reserves the right to change any of the present Terms and Conditions at any time without request of consent made to the Advertiser. The Publisher will notify the changes to the Advertiser via email.

Governing law and jurisdiction

This Agreement shall be governed by German law. Exclusive place of jurisdiction shall be Berlin, Germany.

Miscellaneous

The invalidity of any provision of this Agreement shall not affect the validity of other provisions of this Agreement. Any invalid provision shall be deemed replaced by a valid provision which best accomplishes, as far as possible, the economic purposes of the invalid provision. The same shall apply to any omission or gap in this Agreement. The legal principle contained in sec. 139 German Civil Code shall not apply, irrespective of the allocation of the burden of proof.

The Agreement shall supersede any previous written or oral agreements between the Parties in relation to the matters dealt with in this Agreement and constitutes the whole agreement between the Parties relating to the subject matter of the Agreement.

The Publisher shall not assign any of the rights granted under this Agreement without the prior written consent of the Advertiser (such consent to be at the Advertiser’s sole discretion).