General Terms and Conditions Chat Portal

WEBMASTER

Preamble

The general terms and conditions shall regulate the relationship between mSALES GmbH, Albert-Nestler-Str. 24, D-76131 Karlsruhe, (hereinafter referred to as mSALES) and the subscriber of the mSALES webmaster system (hereinafter referred to as "WEBMASTER").

mSALES shall offer the WEBMASTER a partner program for its brand “SMS Contacts” to promote its services, provide advertising material in cooperation with the partners and administer and disburse any commission claims arising from the promotion of said services.

mSALES cannot guarantee the permanent accessibility to the webmaster system in question, to the partner program and to its servers due to technical aspects regarding the Internet. mSALES shall endeavor to adapt the system capacity to the respective requirements and to keep down times as short as possible. Furthermore, mSALES has no influence whatsoever regarding the accessibility and operational capability of the respective mobile communication networks.

mSALES operates SMS – Chat portals in various countries for entertainment purposes. mSALES explicitly offers no services whatsoever aimed at any real life encounters between end customers (e.g. services of dating portals or partner search agencies).

The services provided by mSALES have the sole purpose of providing entertainment for end customers on a premium SMS basis. To this end, mSALES shall provide the technical requirements to provide communication for entertainment purposes between end customers, as well as between end customers and operators on a premium SMS basis.

The WEBMASTER shall receive a commission for any premium SMS that is sent for a fee, which is generated via the mSALES system by an end customer acquired by the WEBMASTER.

The commission claim shall depend on the respective country, in which services are rendered. The current amount of commission in a particular country is included in the respective list of valid commissions.

Clause 1: Conclusion of Contract

mSALES shall enable the WEBMASTER to register to the system free of charge by using an online form. The WEBMASTER is obligated to provide accurate and truthful information in the online form. If the information provided is determined to be inaccurate or untruthful, mSALES shall be authorized to terminate the contractual relationship immediately and without notice.

By logging in, the WEBMASTER submits an offer to mSALES to enter into an affiliate contract.

The contract becomes effective through the acceptance of this offer by mSALES. The acceptance may be stated in writing, via e-mail or by activating the offer.

The WEBMASTER shall not have any claim to the acceptance of offer by mSALES.

In order to provide its services, mSALES shall be authorized to employ a third party to transfer obligations owed under contract in part or in full to a third party or have a third party provide said services.

Clause 2: Inclusion and Alteration of terms and conditions

Sending the online form confirms that the terms and conditions were read and accepted by the WEBMASTER.

mSALES is entitled to alter the terms and conditions at any time and shall notify the WEBMASTER in an appropriate way and manner of such alterations, typically by sending an information e-mail. The WEBMASTER may object to such alterations of the terms and conditions within a period of two weeks from the date the information e-mail was received. If the WEBMASTER fails to object in due time, the alterations shall be considered approved and shall become part of the contract.

In the event that such alterations are objected, the WEBMASTER is obligated to terminate the use of the system immediately and to discontinue the promotion of its programs. Additionally, advertising materials are to be removed as well.

Clause 3: Use of Advertising Materials, Link Codes, Unauthorized Advertising

Upon activation by mSALES the WEBMASTER may log on to the private area of the webmaster system at http://www.mbucks.biz/login and commence promoting the programs vailable to and activated for him/her.

The advertising material of the programs shall be conceived by mSALES and its partners in such a manner that the correct integration of codes shall result in the pre-configuration of all allocation parameters for the WEBMASTER. Manipulating parameters or link codes may result in errors when allocating commissions. mSALES shall not be liable for any damage, especially losses of commissions, insofar as the damage was caused by such manipulations. The disclosure of access data and codes is expressly prohibited. Any transfer of user rights to a third party of any kind is prohibited.

In order to clearly determine matters regarding payment, the WEBMASTER receives an HTML tag with a banner and his/her own landing page. The URL of the landing page contains a unique ID for every webmaster. The HTML tag and the URL of the landing page shall not be altered, otherwise an allocation of end customers to the respective WEBMASTER, and thus the allocation of commissions, would no longer be technically possible.

The services provided by mSALES are solely aimed at providing end customers with the possibility of communicating with other end customers or operators for entertainment purposes on a premium SMS basis.

mSALES does not provide any kind of services similar to those of a dating portal or partner search agency. The WEBMASTER shall refrain from any kind of advertisement and/or representation of services, which may suggest to the end customer that the services offered by mSALES may be similar to those offered by a dating portal or a partner search agency or any such similar institution.

In this context the WEBMASTER is especially prohibited from:

  • arranging real life encounters between end customers, between end customers and operators or having such encounters arranged by a third party
  • referring to the services provided by mSALES as those of a dating portal or a partner search agency or the like, or having a third party refer to the services provided as such
  • promoting the services provided by mSALES as those of a dating portal or a partner search agency and the like or having a third party promote the services provided as such
  • employing similar advertising tactics that may suggest that the services offered by mSALES may be those of a dating portal or a partner search agency or any such similar institution or having a third party employ such tactics.

Clause 4: Alteration the Contact Information of the WEBMASTER

The WEBMASTER is obligated to notify mSALES immediately of any alteration of address, e-mail or bank information. The WEBMASTER shall be liable for any disadvantage resulting from the failure to comply with such obligations. The WEBMASTER authorizes the storage and subsequent processing of all information recorded by the WEBMASTER on the mSALES webmaster system, insofar as such information is required for payment purposes and system operation.

Clause 5: Disbursement of Commissions

Commissions earned in a given month through the promotion of services shall be disbursed by mSALES on a monthly basis between the 15th and the 18th of the following month. The payment period shall be one full month. The minimum amount paid to the WEBMASTER shall be 50 € and shall be deposited via bank transfer. The WEBMASTER shall bear the costs of the respective method of payment. If the amount to be paid does not meet the minimum payment amount, the full amount of commissions shall be carried over to the following month.

Any value added tax (VAT) shall only be disbursed after submitting a VAT ID number, insofar as the transaction is subject to such taxation. Retroactive VAT payments cannot be disbursed. The WEBMASTER is obligated to pay taxes on the paid commissions according to legal regulations.

The Webmaster is authorized to hire third parties as additional webmasters. The Webmaster will then receive 10% commission and, in the event that the third party hires another webmaster, the Webmaster shall receive a 5% commission from these subsequent sales. The Webmaster is prohibited from hiring himself or herself and from being hired by third parties. Payment will be made at the same time as other commissions. In the event that a hired webmaster terminates his or her duties, all applicable commissions no longer apply.

Clause 6: Billing and Cancelation Fees

The WEBMASTER receives a commission for every SMS message sent (MO - Mobile Originated). mSALES bears the fees for billing (costs of the respective method of payment on the end customer's side) and in the event of cancelation the full amount of applicable cancelation fees. In the event of cancelation, the WEBMASTER's claim to commission may be reduced by the amount of the commission for the canceled sales. Deductions shall be settled with the following disbursement of commissions.

Clause 7: Responsibilities of the WEBMASTER, Legal Costs

The WEBMASTER shall be liable for the links and contents of the websites administered by the WEBMASTER. Upon entering into the contract regarding subscription to the partner program, the WEBMASTER is obligated to design the contents of his/her website according to applicable legal requirements. In particular, the provisions of criminal law, the laws on competition and the protection of minors shall be observed.

The WEBMASTER shall indemnify mSALES and its partners from any claims raised against mSALES by a third party, due to the violation of legal or contractual provisions by the WEBMASTER, his/her vicarious agents or his/her customers. This includes any necessary legal costs, especially the costs for an appointed lawyer.

The WEBMASTER undertakes to pay a contractual penalty in the amount of 5,100.00€ to mSALES for any violation of provisions included in Clause 3 and 7. This provision shall be without prejudice to any assertion of claim for damages by mSALES.

Clause 8: Duration and Termination of Contract

The contract shall be entered into for an indefinite period of time.

The contract may be terminated at any time by mSALES as well as by the WEBMASTER without any statement of reason. Remaining claims for commission shall be settled within a stipulated period of time.

This provision shall be without prejudice to the right to terminate the contract for cause.

The following instances are deemed extraordinary and entitle mSALES to terminate the contract:

  • Imminent or an incurred state of bankruptcy of the WEBMASTER
  • Violation of essential contractual and confidentiality obligations by the WEBMASTER
  • Violations of legal provisions, in particular violations of data protection regulations, by the WEBMASTER
  • Any crime or petty offense committed by the WEBMASTER in relation to the promotion of the program

The termination of contract shall be presented in writing (e-mail or fax shall meet the formal requirements).

Upon the termination of contract, the WEBMASTER shall immediately return or delete any provided documentation and advertising materials and present a corresponding written confirmation upon mSALES's initial request. The WEBMASTER shall discontinue any promotion of the partner program.

Clause 9: Liability of mSALES

mSALES shall only be liable for contractual and non-contractual claims due to damage caused by the WEBMASTER in the event of a malicious intent or gross negligence. This provision shall not be applicable for any violation of essential contractual obligations by mSALES, by any company affiliated with mSALES or by any vicarious agents. In this respect, the liability shall be limited to the foreseeable damages.

The limitation of liability shall be without prejudice to liabilities arising from product liability law.

Clause 10: Legal Form and Place of Jurisdiction

This contract and its construction shall be subject to the law of the Federal Republic of Germany, excluding international sales law. For any disputes arising from or in relation to the use of mSALES services, the parties shall agree upon Karlsruhe as the place of jurisdiction, provided that the WEBMASTER is a businessman and/or does not have any place of jurisdiction within the Federal Republic of Germany.

Clause 11: Severability Clause

In the event that any provision of this contract may be or becomes ineffective, the parties are obligated to replace such ineffective provisions with effective provisions, which correspond to the economic success of the ineffective provisions.

In the event that such corresponding provisions cannot be found, the ineffectiveness of one or several contractual provisions shall not have any influence on the effectiveness of the entire contract, unless the ineffective provisions are of such an essential nature to the contract that the parties cannot be reasonably expected to have entered into contract without the ineffective provisions in question.

Similar provisions apply to any legal gap.




Special Provisions for Affiliate Brand Portals

At the request of the WEBMASTER, mSales will provide the WEBMASTER with an affiliate brand portal. Affiliate brand portals contain designs that are adjusted to meet specific needs of the WEBMASTER and can be reached via a domain belonging to the WEBMASTER.

The content of the affiliate brand portal shall solely be provided by mSales.

The WEBMASTER is not authorized to use content from third parties under the domain or to provide third parties, especially end customers, with access to such information.

The WEBMASTER is obligated to provide an imprint in the affiliate brand portal domain, which indicates that the WEBMASTER is a service provider.

(1) Technical Requirements

The WEBMASTER registers a domain under his or her name and operates this domain by using the DNS (domain name server) on the mSALES server in the same manner as certain sub-domains defined by mSALES. The WEBMASTER must see to it that he or she has access to the appropriate managing tools needed for the respective domain specified by the affiliate brand portal. mSALES is not authorized whatsoever to use technical methods or resort to legal options to access the domain of the WEBMASTER, especially the DNS.

(2) Design

mSALES provides the WEBMASTER with a program, which assists the WEBMASTER in creating a design that meets his or her specific requirements.

(3) Imprint (Site Credits)

The WEBMASTER is obligated to provide an imprint on his or her Internet site. The imprint must indicate that the WEBMASTER is a service provider. For this purpose, the WEBMASTER shall use the model form provided by mSALES, in which the WEBMASTER shall simply provide all the necessary information indicating that he or she is a service provider.

(4) Functionality of Affiliate Brand Portals

In principle, affiliate brand portals contain the same functionality as the website operated by mSALES. However, affiliate brand portals do not provide end customers with the option of creating a user profile. End customers can only view existing user profiles and contact other users via the web phone. The web phone is a web-form that may be used by end customers to send up to two (2) free SMS text messages per day (this is not allowed in all countries and mSALES shall provide a list of these countries on request) to other portal users, thus allowing end customers to contact other users. Additional dialogues are carried out exclusively by using the Premium-SMS service.

(5) Supplementary Provisions

In all other respects, the provisions of the “General Terms and Conditions Chat Portal Webmaster” shall apply.

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