This Contract complies with the rules of form and substance for the conclusion of a contract by electronic means resulting from the law against unfair competition. The proposed language for this Contract is French. The professional and commercial rules may be viewed on the website, at www.prelinker.com
The purpose of this Contract (referred to hereinafter as 'the Contract') is to outline the respective terms governing the collaboration between the Company and the Affiliate (referred to hereinafter as 'the Affiliation'). The Affiliate is the partner of an e-commerce site or commercial platform (referred to as Affiliator) by means of an affiliation programme. Within the framework of the contract connected to the affiliation programme, the affiliate receives a percentage of the turnover generated by the part of the dating website it is promoting (commission, qualified lead, visit) according to the visitors "sent" to the affiliator.
The Affiliate prescribes the Affiliator's products or services using various visual elements or promotional tools (widget, engine, etc.) which shall be provided by the Affiliator and which it inserts on its web pages.
It works like this: The Affiliate installs URL links on its website to the Company Part of the website that it may customise in advance:
It works like this: The Affiliate installs URL links on its website to the Company Part of the website that it may customise in advance:
- Insertion of its website logo.
- Change background colours, blocks and font.
- Choice of sections made available to it by the Company.
- All other improvements yet to be made.
Article 2 - The Affiliate's registration procedure
By double-clicking on 'I certify that I am over 18 and have read and accepted the Contract' followed by clicking on 'Registration', the Affiliate triggers the entry into force of this Contract provided that this registration is not cancelled by the Company without the latter having to provide any reason for its refusal and notably under the following circumstances:
- The Affiliate's website does not comply with legal requirements.
- The website does not comply with the Company's brand image.
- The website's publisher has been convicted criminally for illicit content.
The Affiliate acknowledges that its electronic signature constitutes proof of its acceptance. It may modify the data concerning it in this Contract by returning to the following address: www.prelinker.com
Article 3 - Obligations of the Company towards the Affiliate
From a technical perspective, the Company agrees to provide the Affiliate with the following:
URLs redirecting the user to the part reserved for the Affiliate.
Customisation interfaces for the Affiliate's Company part. An interface to display its statistics.
The Company undertakes to pay the revenue within contractual timeframes with the exception of the cases provided for in Article 18 of this Contract.
The Company undertakes to take all necessary steps for the proper function of its services. However, due to the very nature of the Internet, the Company cannot guarantee a 24/7 functioning of services. The Company also reserves periods for maintenance, updates and technical interventions, liable to result in interrupted access to its platform. In all the cases referred to in this paragraph, the malfunctions or periods of unavailability that result therefrom may not be considered periods during which the Company is not fulfilling its obligations, and no compensation shall be paid to the Affiliate regardless of any loss sustained by it or by third parties as a result of such malfunctions or periods of unavailability.
The Affiliate shall receive no instructions, orders or advice of any kind from the Company. Any responses that the Company might provide to the Affiliate shall be provided as a guide only and should not be considered to replace a consultation.
Article 4 - The Affiliate's obligations towards the Company
The present contract can only be accepted by a major Affiliate. In consequence, by ticking the box referring to the sentence, "I certify to be major and to have read and accepted the contract" at the moment of validating their registration form (form available here : https://www.prelinker.com, tab "register") the Affiliate confirms to be major and legitimately committed by his electronic signature.
All the links shall be put in place by the Affiliate under its sole and full responsibility. The Affiliate undertakes to not modify, in any way whatsoever, the 'html' source code communicated by the Company and more generally all the technical Affiliation elements.
The Affiliate undertakes to not show hypertext links in such a way as to create confusion in the mind of the public between its Affiliate website and the Company's websites.
The Affiliate undertakes to not deceive the end user as to the cost of the communications or subscriptions that has already been stipulated. The Affiliate vouches for any content it makes available on its website and guarantees that this content does not contradict the law or Internet usage policies, including, in particular, but not limited to the following:
- No content of a libellous, insulting, inappropriate, injurious, hateful, racist, xenophobic, paedophilic, homophobic or revisionist nature or that might represent an invasion of privacy or an attack on the honour or reputation of any other party, threatening a person or a group of people, or representing a breach of public order or of good moral standards.
- No content inciting discrimination against or hatred towards a person or group of people due to their origin or their belonging or absence of belonging to any given ethnic group, nation, race or religion or advocating war crimes or crimes against humanity INSERT INTO translation (translation_model_id,locale,text) values (incitation of hatred or violence), representing a breach of public order or of good moral standards.
- No content designed to encourage, help, spread or disseminate in any way any rumours and/or violating the private nature of correspondence and consequently breaching any third-party rights, intellectual property rights or copyright or infringing upon people's private lives.
- No contents that constitute infringement INSERT INTO translation (translation_model_id,locale,text) values (infringe copyrights, performing rights, intellectual property rights, etc.).
Consequently, the Affiliate undertakes to take personal responsibility for any claims and/or proceedings, irrespective of the form or nature thereof, made against the Company and which are directly or indirectly connected with content.
To this end, the Affiliate undertakes, inter alia, to pay directly to the originator of the claim any amounts that said originator might demand from the Company, to intervene voluntarily, if necessary, in any proceedings instigated against the Company, and to guarantee it against any claims and convictions that might be brought against it at such a time.
Furthermore, the affiliate shall guarantee to declare his incomes to the tax / administrative services corresponding to his type of activity.
Article 5 - Term and termination
This Contract comes into force on the date the Affiliate double-clicks on 'I certify that I am over 18 and have read and accepted the Contract' and on 'Registration', and shall be in force for an initial period of one (1) year. After this period, this Contract shall be tacitly renewed for successive periods of one (1) year, while a revenue is owed to the Affiliate and/or until termination of this Contract by either Party.
Termination by either Party is possible at any time, with no prior notice. It may be carried out either by a letter with acknowledgement of receipt, or by an email subject to acknowledgement of receipt of the same. Termination shall be effective on the date the notice is received and the balance shall then be sent to the Affiliate against invoice.
Assuming the number of registered users generated by the Affiliate would experience a significant annual decline of at least ten percent (10%), the Company reserves the right to terminate immediately and without compensation this contract without any further formality being required.
In the event that the Affiliate is guilty of malicious and disrespectful actions against the Company (including, for example, negative talk on forums, blogs or any other behavior that may affect the Company etc. .), the Company reserves the right to terminate this Agreement without delay and in particular to retain future and already generated revenues.
Termination of this Contract shall not release the Parties from their rights and obligations, in particular but not limited to, confidentiality obligations, intellectual property and limitations of warranty and liability. The said rights and obligations shall continue on termination of this Contract.
Article 6 - Affiliate's Remuneration
It is recalled that the amounts owed to the Affiliate are not permanent or recurring revenue and are based on the location of the hypertext link, its visibility and the way the Affiliate communicates around this link. Revenue is also dependent on the level of traffic and the number of registrations and subscriptions. For this reason, the Company cannot guarantee a particular level of revenue. Revenue is paid to the Affiliate on a monthly basis from 25th of the month.
Payout rates are outlined on www.prelinker.com. These rates can vary over time and are therefore not guaranteed.
Should the number of registrations generated by the Affiliate's website see a significant drop, it is expressly agreed that the Company reserves the right to terminate this Contract.
The significant drop in the number of registrations is assessed by the Company in terms of the Affiliate's profession and its related characteristics.
Any Swiss or foreign Company or association that publishes a website may become a partner.
The Affiliate mandates the Company to create and issue, in its name and on its behalf, invoices relating to affiliation services provided. The Affiliate undertakes to provide the Company, within the time allowed, with all necessary information the Company needs to meet the monthly declaration deadlines. The Affiliate undertakes, furthermore, to notify the Company of any modification to be taken into account for the creation of its invoice. The Affiliate is also required to declare any revenue it has received from the Company to the relevant authorities, including the tax authorities. It retains full responsibility for its legal and fiscal obligations in matters of invoicing, namely the original invoices issued in its name and on its behalf by the Company under the present agreement, especially as regards VAT obligations. The Company shall not, under any circumstances, be held responsible for failure to declare said revenue.
In the event of the Affiliate failing to comply with this Contract, the Company reserves the right to demand that said Affiliate reimburse the amounts received since the opening of its account. In the event that the Affiliate does not claim payment of its revenue within twelve (12) months following the transaction responsible for generating said revenue, the Affiliate will be considered to have relinquished its accounts receivable from the Company and the Affiliate's account will then be closed.
Article 7 - Sponsorship clause
When an Affiliate sponsors another Affiliate, the “Sponsoring” Affiliate has a choice of two sponsorship programmes:
Receive, for a period of twelve (12) months, remuneration amounting to 10% of the monthly revenue generated by the “Sponsored” Affiliate. At the end of the twelve (12) months, the “Sponsoring” Affiliate will no longer receive any remuneration based on the revenue generated directly by the “Sponsored” Affiliate, excluding any bonuses.
Receive, for as long as the sponsorship relationship continues between the “Sponsoring” Affiliate and the “Sponsored” Affiliate, remuneration amounting to 3% of the monthly revenue generated directly by the “Sponsored” Affiliate, excluding any bonuses.
The purpose of this remuneration is to reward the “Sponsoring” Affiliate’s sponsorship commitment to the “Sponsored” Affiliate, as stated in our Sponsorship Charter.
Article 8 - Ownership of the content of the Company's websites
The Company enables the Affiliate to advertise the pages that said Affiliate has customised (containing its username) within the scope of the terms and conditions outlined in this Contract.
This Contract and, in particular but not limited to, access to the programmes used, in addition to the data and information on the Company's website, implies no transfer of ownership in favour of the Affiliate and confers on it no right over such programmes, data, information and trade marks, which remain the exclusive property of the Company or its beneficiaries; this latter reserves the right to assign ownership thereof or to grant preferential rights and security interests over them, to any third party of its choosing.
The members registered through the Affiliate and the information collected on these members belong exclusively to the Company. The Affiliate may not use the Company's trade marks in any way that denigrates its products and services, or which represents its products and services in a false, unfair, unlawful or depreciating manner.
Each Party shall retain full and entire ownership of its website. The logos and other elements connected to the technical affiliation elements are and shall remain the Company's exclusive property.
The Company guarantees that on the date this Contract is signed, it knows of no dispute with a third party alleging that the programmes used under this Contract infringe the property, material or intellectual rights of said third party.
This Contract does not imply any assignment of any kind of any intellectual property rights, including industrial property rights (trade marks, drawings, models etc.) and literary and artistic property rights (websites, software, graphics, drawings, texts, logos etc.) or any other element belonging exclusively to the Company.
It is prohibited from using domain names resembling the Company's trade marks and domain names. The Affiliate is also prohibited from purchasing adwords or other advertising products relating to the Company's trade marks and domain names, in particular but not limited to the following names: Easyflirt, easyrencontre, carasexe, caramec, erotilink, forcegay, destidyll.
This Contract only confers on the Affiliate a right to use the technical elements.
The Affiliate declares that it holds the rights to the website on which the link is created and holds all rights permitting it to enter into this Contract. In this regard, the Affiliate shall guarantee the Company against any proceedings, claim, upset, demand, objection and eviction whatsoever by anyone invoking an intellectual property right or any other proprietary right or right relating to anyone alleging they have been harmed by the performance of this Contract.
Article 9 - Miscellaneous provisions
The Company reserves the right to unilaterally modify this Contract at any time. The modifications to this Contract shall come into force as soon as they are posted online by the Company and shall prevail over any earlier version.
The Affiliate is solely responsible for operating its website and its content. Both Parties recognise that the Company's websites and the Affiliate's website may be temporarily disconnected due to causes outside the operational control of the Parties.
The Affiliate accepts that the links placed on its website and directing the user towards the Company may be modified or made temporarily unavailable in the event of a problem of a technical or any other nature. The Affiliate grants the Company a non-exclusive right to use its brand, its URL, its name and potentially its logo for the entire duration of the Affiliation in order to promote the Company's affiliation programme.
On no account shall the Company's liability be incurred in the event of a technical error committed by the Affiliate when creating links. Each Party assumes responsibility for the content of its website and is solely responsible for information and elements of all kinds disseminated on the Internet by means of its website. The Affiliate is responsible for any loss and any unauthorised access to the Affiliate's data available on its own system.
The Affiliate is responsible for the communication posted on its website regarding the programme and affiliation technique implemented with the Company. Each Party is responsible for referencing its own website.
Except with the express consent of the Company, the Affiliate may not use the terms 'easyflirt' 'easyrencontre' 'carasexe' 'caramec' 'erotilink' 'forcegay' 'destidyll' as a meta tag or in its domain name. Consequently, the Affiliate undertakes to take personal responsibility for any claims and/or proceedings, irrespective of their form or nature, instigated against the Company and which are directly or indirectly connected to the information and elements posted online or within the framework of its website referencing.
The Affiliate represents and warrants to the Company that it carried out, and/or shall carry out, at its expense and under its sole responsibility, all of the administrative formalities required of it, including with the tax services and social agencies of any kind that might be made necessary due to the acceptance and obligations arising from this Contract, such that on no account may the Company's liability be sought in this respect, by any third party whatsoever. The Affiliate represents and warrants to the Company that on no account shall it divert the intent of the Company's rights by generating fraudulent clicks.
The Company reserves the right to subcontract, to any company of its choosing, all or part of the fulfilment of its commitments arising from this Contract, in particular but not limited to, the Affiliates' payout function without the Affiliate's prior consent.
Article 12 – Assignment – Transfer
Given that this Contract is entered into 'intuitu personae', the Affiliate is prohibited from assigning to a third party the rights and obligations that it holds under the Contract, for any reason and in any form whatsoever, for valuable consideration or free of charge, without the Company's prior written consent.
In the event of the assignment or transfer of this Contract by the Affiliate and accepted by the Company, the transaction shall be the subject of an addendum signed by the Parties and by the beneficiary of the assignment or transfer and via which said beneficiary shall undertake to perform all of the provisions of this Contract.
By virtue of this Contract, the Affiliate's agreement is presumed to have been given in the event of the assignment or transfer of this Contract by the Company.
Each of the Parties is formally prohibited, except under the express permission of the other Party, from communicating, referring to or disclosing to third parties, by any means whatsoever, any confidential information it becomes aware of regarding the other Party's activity (hereinafter referred to as the 'Confidential Information').
Confidential Information means any details or information of a technical, commercial, financial or accounting nature or connected with intellectual property, in any form whatsoever, that each Party might know about the other Party or its clients, regardless of whether such Confidential Information has been directly communicated by the other Party or not.
The Parties undertake to take all necessary precautions and measures, in particular vis-à-vis their employees or subcontractors, to preserve the confidential nature of this information.
The provisions on confidentiality outlined in this Contract shall apply for the duration of said Contract and for one (1) year after its expiry or termination irrespective of the cause.
However, the Parties authorise each other to report the existence of this Contract in their sales communication.
Finally, the information collected within the framework of this Contract may be communicated to subsidiaries and companies affiliated to the Company in the event of the assignment provided for in Article 12 of this Contract and to any company to which the Company outsources some of its activity.
Article 14 - Non-solicitation of personnel
The Affiliate is prohibited from directly or indirectly seeking or accepting offers to employ an employee of the Company. This prohibition is valid throughout the duration of this Contract and for twelve (12) months after its expiry or termination, for any reason whatsoever.
Should the Affiliate not fulfil this commitment, it shall be liable ipso jure, towards the Company, for a fixed indemnity equal to twelve (12) months' gross salary of the employee concerned.
Article 15 - Intellectual Property
The Company retains all the intellectual property rights and/or titles relating to all the texts, information, data, photographs, trade marks, images, drawings and graphics reproduced under this Contract and any technical element, right or solution offered by the Company in accordance with this Contract (hereinafter referred to as 'the Elements') in addition to any document or information of a commercial, accounting, financial or technical nature liable to be provided to the Affiliate within the framework of negotiating and performing this Contract.
Any copy, fixation, reproduction, representation, use, dissemination, publication, edition, modification, transformation, adaptation or any other exploitation by any means and on any medium, known or unknown at this time, of all or part of the Elements and, in particular but not limited to, promotional codes and/or tools provided by the Company, is strictly prohibited and constitutes an infringement, except with the prior written consent of the Company. Any failure to fulfil this obligation shall be liable to an immediate termination of this Contract.
The obligations stipulated in this Contract shall apply for the full duration of the Company's intellectual property rights and for any country, including after termination of this Contract.
Article 16 - Independence of the Parties
The Parties acknowledge that they each act on their own account as independent traders and shall not be considered each other's agent.
This Contract constitutes neither an association, nor a franchise, nor a mandate given by either Party to the other.
Neither Party may make a commitment in the name and on behalf of the other Party. Furthermore, each of the Parties shall be solely responsible for its acts, claims, commitments, services, products and personnel.
ARTICLE 17 - PROOF, STORAGE AND FILING
The Affiliate's checking of the box indicating 'I certify that I am over 18 and have read and accepted the Contract', when validating its registration form, signifies acceptance of this Contract and constitutes an electronic signature which has, between the Parties, the same value as a handwritten signature. The same shall apply in the event of acceptance of the modified Contract.
The computerised registers kept in the Company's IT systems under reasonable security conditions shall be taken as proof of communications that have taken place between the Affiliate and the Company.
The Contract accepted by the Affiliate under the conditions outlined thereby is filed on a reliable and durable medium in order to provide a true and long lasting copy. In case of conflict between the Company's computerised registers and any document in written form or on electronic file belonging to the Affiliate, it is expressly agreed that the Company's computerised registers shall take precedence over the Affiliate's documents and shall be the only ones taken as proof.
18.1 Definition of force majeure
Force majeure is considered to be an external, unforeseeable, inevitable and unavoidable event, i.e. a circumstance outside the control and despite the actions of the Parties, who could not reasonably foresee its occurrence when entering into this Contract, nor prevent its effects and which prevents, in good faith, the total or partial performance of the Contract.
By express agreement between the Parties, the following shall be considered events of force majeure, when they have the aforementioned characteristics: [a] war (declared or not), armed conflict or serious threat of armed conflict (including, but not limited to, aggression, blockade, military embargo), hostilities, invasion, act of a foreign enemy, large-scale military mobilisation; [b] civil war, riot, revolution, rebellion, military force or usurpation of power, insurrection, social disorder or chaos, crowd violence, act of disobedience against the authority of the State; [c] act of terrorism, sabotage or piracy; [d] act of authority, whether legitimate or not, submission to any law or order, rule, regulation or directive issued by a government, curfew, expropriation, dispossession, seizure of property, requisition, nationalisation; [e] calamity, plague, epidemic, natural disaster, including but not limited to, severe thunderstorm, cyclone, typhoon, tornado, blizzard, earthquake, volcanic eruption, landslide, tidal wave, tsunami, flood, damage or destruction caused by lightning, drought; [f] explosion, fire, destruction of machinery, equipment, plants and any types of installations; [g] general social conflicts, including but not limited to, boycott, strike and lock-out, work-to-rule, occupation of plants and premises.
18.2. Effects of force majeure
If an event of force majeure occurs, which prevents a Party from performing some or all of its contractual obligations, or which prevents a third party that it had instructed to perform said obligation(s), it must inform its co-contracting party immediately by any means whatsoever (telephone, email, fax), detailing the nature and the circumstances of the event of force majeure, in addition to its effects and anticipated duration.
In the case whereby the other Party has been verbally informed of this event, the Party so prevented shall confirm it in writing.
At the same time, it must take all steps to avoid or limit the consequences of the event on performance of this Contract.
Subject to the provisions of Article 10 of this Contract, the Parties cannot be held liable for any consequence of a characteristic feature of force majeure.
The ground for exoneration will have the effect of suspending performance of the obligation(s) that has/have become impossible, as well as any corresponding obligation(s), for the duration of such circumstances, without it being possible to seek the liability of the Party so prevented due to the damages resulting from its contractual non-performance. On no account shall the occurrence of an event of force majeure suspend, delay or prevent payment for services already carried out on the date said event of force majeure occurs or for those which may be carried out.
Finally, the Affiliate may never be exonerated from its obligation to pay the amounts due under this Contract by invoking a case of force majeure.
If, as a result of one of these events, the performance of this Contract is prevented for a period of ninety (90) days, the Parties shall come together to find a solution that satisfies their respective interests, but on no account may the Contract be terminated by operation of law.
The Parties hereby agree to perform their obligations under this Contract with the utmost good faith.
The Affiliate undertakes to use the promotional tools made available to it by the Company solely within the framework of this collaboration.
The Affiliate is prohibited from using any promotional means made available to it by the Company and, more generally but not limited to, data and content of members registered on the Affiliate's website for advertising or Internet referencing purposes.
In case there is an interpretation problem resulting from a contradiction between any one of the clause headings and any one of the clauses, the headings shall be declared nonexistent.
This Contract expresses all of the Parties' obligations in respect of its purpose.
It supersedes any prior document or agreement entered into between the Parties and may only be modified by way of an addendum signed by the Parties.
No other general or specific condition shown in the documents sent to or received by the Parties can be included in this Contract.
If one or more provisions of this Contract is/are deemed to be invalid or declared as such pursuant to a law, a regulation or further to a final decision rendered by a competent court, the other provisions shall retain their full legal force and scope.
If one or more clauses of this Contract are declared invalid pursuant to a law, a regulation or further to a final decision rendered by a competent court, the other clauses shall retain their full legal force and scope.
The Parties mutually agree that the fact one of the Parties tolerates a situation does not have the effect of granting the other Party any acquired rights.
The Parties declare that the present commitments are sincere. To this end, they state that, to their knowledge, they possess no information which, had it been communicated, would have changed the consent of the other Party.
Article 25 - Applicable law - Jurisdiction
This Contract is subject to Swiss law.
In the event of a dispute relating to the formation, interpretation, performance or termination of this Contract, the Parties shall endeavour to settle their dispute amicably.
If, on expiry of a reasonable time limit, assessed in terms of the nature of the difficulties, circumstances and potential urgency of the present case, the Parties have failed to bring an end to their dispute or if it is clear that they will be incapable of doing so, the dispute shall be finally settled, on the request of the first Party to take action, by the Court of First Instance of Geneva, notwithstanding multiple defendants or introduction of third parties, including for emergency or protective measures in a summary procedure or petition.
The notices provided for in this Contract shall be issued in writing and sent to the representatives and to the addresses indicated on the second page of this Contract or to any other address indicated at a later date by either Party to the other. Any form of written communication is recognised as valid and enforceable in the relations between the Parties (letters, emails, faxes, etc.) unless this Contract requires a particular form of communication (recorded delivery letter with acknowledgement of receipt).
In accordance with the Swiss Federal Act on Data Protection (LPD) no. 235.1 of 19 June 1992, amended on 1 January 2014, the Affiliate has a right of access, which extends to all its data contained in a file in addition to the purpose and potentially the legal basis for processing and the categories of said processed personal data, file participants and data recipients. Unless the Affiliate objects, the Company may pass on to third parties the information held on the Affiliate. Any request for modification, deletion or objection should be made by sending an email or a letter to:
- FACTOR LEAD SA
- Chemin des Aulx 16
- 1228 Plan-Les-Ouates
Article 28 - Audits and checks
The Company reserves the right to ensure that the conditions outlined in this Contract are adhered to by means of checks and audits. These checks or audits may take any form and duration considered appropriate by the Company, including but not limited to:
- warning or request for an explanation sent to the Affiliate.
- suspension or termination of the contractual relations.
- legal proceedings...