1. Opening of a business account, participation as commercial provider to Fanmiles
- Fanmiles is a self-service loyalty platform, which permits commercial providers ("Partners") to create and administer campaigns for collecting or redeeming the digital loyalty currency "#fanmiles" by Fanmiles customers. In order to be able to take part as Partners in Fanmiles (via the Fanmiles account, Fanmiles AdFan or the Fanmiles Developers Program, which use the Fanmiles technology), opening a business account subject to acceptance of these general contractual conditions is required. One or several business accounts may be opened for each commercial provider (for different territories, for instance).
- Business accounts may only be created for domestic and foreign companies in accordance with section 14 of the German Civil Code (BGB), but not for consumers (section 13 of the German Civil Code).
- Registration of a business account is performed by natural persons with the Fanmiles account assigned to them, which thereby vouches that they may act for the company stated by them and represent it in legal transactions to the extent required for the use of the business account. The Fanmiles account of this person receives administrator rights for the business account set up with it.
- Upon establishment, a name must be chosen for a business account, which states the company name of the Partner. Common and appropriate abbreviations are permitted. Legal form suffixes, such as "GmbH" are not necessary. No information in addition to the company name may be entered.
- When registering the business account, a means of payment or billing address permitted by Fanmiles in the name of the Partner must be stated. The specified payment method must be maintained during the term of the contract and, if necessary, exchanged for another means of payment in the Partner's name. The other information on the Partner in the business account must be provided in full and truthfully and immediately updated continuously to the extent needed.
- Upon establishing the business account, the VAT ID number of the Partner must be stated for companies with their registered office outside Germany, but inside the EU. If this is not done, the Partner shall bear the risk of the VAT being calculated incorrectly.
- Fanmiles shall be at liberty to reject the application to open a business account without stating any reasons.
2. Using Fanmiles
- Upon opening a business account, the Partner can offer Fanmiles customers options via the functions offered by Fanmiles to collect #fanmiles ("earn campaigns") and to exchange #fanmiles against rewards ("burn campaigns"). Earn and burn campaigns shall be jointly known as "partner campaigns". The contractual partner of the Fanmiles customers as part of an earn or burn in this respect is always Fanmiles, which acts as service provider of the Partner. The functions offered by Fanmiles for partner campaigns are subject to technical further development. The Partner does not, therefore, have the right to the maintenance of a function (unaltered). Fanmiles informs administrators of business accounts by e-mail of planned changes.
- As part of its business account, the Partner can set up so-called apps (e.g. a partner page which is presented in the Fanmiles account, a connection with another webpage or applications that are integrated via corresponding interfaces in external systems, such as cash register systems, apps for mobile terminals or eCommerce shop systems) and set up partner campaigns in each of these. Apps in this respect are functionalities of the Fanmiles platform, not independent apps, such as those that can be offered in app stores. A partner page is created as standard app for each business account, which presents and offers the partner campaigns of the Partner for Fanmiles customers.
- The Partner must state whether an app created by it is to be accessible to Fanmiles customers worldwide or only to Fanmiles customers who have their stated place of residence in a particular region prescribed by Fanmiles.
- All partner campaigns are also accessible via the interfaces offered by Fanmiles (e.g. https://graph.fanmiles.com) to the corresponding users of the interface. The partner campaigns can be integrated into the interface users' own services via these interfaces (e.g. an app for mobile terminals). Fanmiles may provide the Partner if necessary with an individual control [determining] which campaigns are accessible to whom. If necessary, separate terms and conditions of use must be accepted by the Partner for the use of the interfaces.
- Fanmiles is always the contractual Partner of the Fanmiles customers when making use of a partner campaign. The Partner must reimburse Fanmiles for the #fanmiles offered by it as part of earn campaigns and to this extent issued by Fanmiles according to the regulations of these contractual conditions.
- By way of sharing, Fanmiles customers can recommend earn campaigns offered by the Partner to third party Fanmiles customers. If the latter take notice of the earn campaign through the recommendation, they receive the number of #fanmiles offered as reward for this by the Partner from Fanmiles. In addition, the recommending Fanmiles customer receives 5 #fanmiles for his successful recommendation. The Partner must also reimburse Fanmiles for the issue of these #fanmiles.
- Apps and partner campaigns offering or advertising products subject to statutory restrictions or special conditions with regard to purchase and/or advertising bans or restrictions in the approved region (e.g. in relation to tobacco, alcohol, drugs, gambling, betting platforms, lottery, medical products, weapons, erotic or pornographic products) are prohibited unless Fanmiles has first agreed to them. Apps and partner campaigns which do not comply with this requirement may be blocked by Fanmiles without prior notice. The Partner shall be informed of the blockage and reason.
- The Partner shall advertise its apps and partner campaigns in the context of its communication to an appropriate extent and in the customary manner at its discretion with the objective of creating the greatest possible attention for them and in this laying the foundation for its economic success. Fanmiles can advertise the apps and the partner campaigns as part of the communication of its product offer and for this purpose is entitled to use the rights transferred to it by the Partner under these contractual conditions.
3. Impermissible content for apps and partner campaigns
- The apps and partner campaigns shall be designed by the Partner taking account of the legal requirements and the design options afforded by Fanmiles. Apps and partner campaigns are in particular not permitted in this respect that breach statutory regulations applicable in the region for which the particular or partner campaigns have been approved. Sections 4 and 6 of the Interstate Treaty on the Protection of Minors in the Media (Jugendmedienschutz-Staatsvertrag) must particularly be observed in the case of apps and partner campaigns accessible in Germany.
- It is furthermore prohibited to directly or indirectly include the following content in an app or a partner campaign unless Fanmiles has given its consent:
- advertisements or the mention of third parties in return for payment or sponsoring in integrated videos (neither pre, mid nor post roll) as well as paid product placement in such videos;
- advertisements in integrated images;
- marketing for third parties in the texts on the partner page;
- graphic overlays, logos, watermarks or other processing or alienation of videos or pictures integrated in the partner page;
- implementation of or advertising of gambling or raffles unrelated to Fanmiles and in which participation is not possible via this website or other channels provided by it;
- which directly or indirectly facilitate the option to download or stream legally protected contents without the holder of these rights having consented to this.
- Fanmiles may demand that modifications be made to an app or partner campaigns insofar as this is necessary in order to comply with the requirements of these Terms and Conditions or for technical reasons in order to maintain the operation of Fanmiles. In urgent cases, such modifications may also be carried out by Fanmiles itself if required by Fanmiles' legitimate interests and a delay would not be reasonably acceptable (e.g. the presence of illegal content on the partner page). Fanmiles shall inform the Partner without delay of any such modifications by Fanmiles.
5. Remuneration of #fanmiles issued
- The Partner must reimburse the #fanmiles issued on his behalf by Fanmiles.
- Each 1,000 #fanmiles begun cost 1.30 euros net plus valid VAT.
- The Partner may only offer #fanmiles via channels provided by Fanmiles. He may in particular not sell #fanmiles to Fanmiles customers or other transfer to third parties or otherwise in return for a separate fee. The Partner shall not be authorised to accept #fanmiles as a means of payment unless this is done via a functionality provided by Fanmiles.
- The Partner may generate additional income from the activity of Fanmiles customers through so-called cross-promotions. By means of a cross-promotion, the Partner can grant third party partners of Fanmiles the option via the functions offered by it in connection with the apps of the Partner to advertise its own partner campaigns or to reward actions of a Fanmiles customer.
- The decision whether the Partner in general permits cross-promotions and which other Fanmiles partners it wishes to permit this is solely at its discretion and requires explicit its approval. Approval in this regard always refers to all campaigns of the other approved partner. Fanmiles is expressly not permitted to facilitate cross-promotion with an app of the Partner to other partners which the Partner has not approved.
- If a Partner approves cross-promotions and crediting of #fanmiles occurs at the Fanmiles customer through the interaction of a Fanmile customer with a cross-promotion, the Partner receives a mediation commission of 15 % of the income that Fanmiles generates for the #fanmiles credited in this respect.
- Marketing of cross-promotions occurs in the name and on account of Fanmiles.
- Cross-promotions have an indeterminate term and can be terminated at any time by the Partner involved.
7. Rewards - provision, purchase and shipping
- The Partner is entitled to offer the exchange of #fanmiles against rewards on its partner page or in its apps (so-called burn campaigns). It can once again remove rewards introduced with future effect at any time from the product offer. The rewards offered have to be available and be capable of delivery for this stated period. Only those rewards may be offered that may be distributed legally by Fanmiles in the region where the reward can be redeemed without infringing on the rights of third parties.
- When creating a reward in Fanmiles, the Partner determines the net payout that Fanmiles must pay it upon purchase of a reward. With the exception of VAT, this shall be quoted as an all-inclusive price and shall, in particular, include shipping costs as well as any customs duties and any other ancillary services. The Partner is entitled to alter the sales price at any time with effect for the future. Where the Partner is responsible for shipping the reward, the Partner shall state the length of the shipping period in compliance with the legal requirements. If the reward is subject to VAT, the Partner shall state the appropriate percentage when registering the reward. Fanmiles is entitled to deduct input tax so that a reverse charge procedure may apply for the payment of VAT.
- Fanmiles shall at its discretion determine the number of #fanmiles required to redeem a reward.
- When entering a reward on the website, the Partner, by making entries in the appropriate fields of the input screen or through another method specified by Fanmiles, shall provide all information necessary in order for Fanmiles to legally promote the reward on the Internet and/or on the mobile terminals. If mandatory information required by law cannot be entered, the Partner shall not display the reward on the website and shall immediately inform Fanmiles of the information that it was unable to enter.
- Fanmiles shall become contractual Partner of a Fanmiles customer when exchanging a reward against #fanmiles. For this purpose, Fanmiles shall automatically acquire the reward from the Partner at the moment of the exchange. At this moment, a purchase agreement shall come about between the Partner and Fanmiles regarding the exchanged reward at the purchase price stated by the Partner. It shall not be necessary for the Partner to receive a corresponding declaration of intent or for the Partner to make a separate declaration of acceptance in order to conclude the corresponding contract. The Parties hereby declare that they agree to conclude the such contracts.
- If this involves a digital reward, which the Partner has already deposited in the Fanmiles system or which he has provided to it automatically via an interface used by it, the despatch or provision of the reward shall occur via Fanmiles.
- The despatch shall occur by the Partner for all rewards not covered by paragraph 6) above. The Partner shall ship the reward without delay and no later than within the period which the Partner has stated for the shipping of this reward in Fanmiles. The corresponding consignment shall not be accompanied by an invoice for the reward from the Partner, and the Partner shall agree on the design of the delivery note with Fanmiles within the framework of what is technically possible for the Partner. If a reward cannot be shipped within the stated delivery period, Fanmiles must be notified without delay stating the reason and indicating the new delivery date, which may not be more than two weeks after the end of the two-day period. If the new delivery date is also not met, Fanmiles shall have the right to withdraw from the respective contract.
- The transport risk of the reward to the Fanmiles customer, who exchanged it, shall be with the Partner as sender. The Partner shall insure rewards that it ships for Fanmiles without a separate fee for it to the full value of the goods. Fanmiles must be notified once shipment has taken place, including the tracking number, via the submission function or interface that it provides for this purpose.
8. Rewards - Partner's liability
- The Partner shall be liable for the rewards which it sells Fanmiles according to the statutory provisions. Section 377 of the German Commercial Code shall not apply. § 478 BGB shall find (corresponding) application to the purchase of the reward of Fanmiles at the Partner.
- Where Fanmiles is liable to the end user of the reward for installation, de-installation or transport costs, the Partner shall fully indemnify Fanmiles against these costs. This shall not apply if Fanmiles offers the reward knowing that it is defective.
9. Use of the Connect API
- The Connect API ("Connect") offered by Fanmiles may only be used for the purpose described by Fanmiles in the technical description of Connect. The Partner shall be obliged when using Connect and all transactions triggered via Connect (especially so-called earns and burns) always to act in conformity with the respective Fanmiles customers affected and the currently applicable statutory provisions.
- The access data transferred to the Partner (app ID and app secret) for Connect must be kept secret by it and may not be transferred to any unauthorised third party. If the Partner suspects that unauthorised parties are aware of its access data, it must immediately inform Fanmiles.
- Transactions that a Partner provides for Connect may not be designed in a confusing or deceptive manner. No transactions may be triggered for which no demand by a Fanmiles customer is available to the Partner. The Partner may not demand any separate fee from Fanmiles customers for triggering a transaction via Connect.
- The Partner must observe all requirements of the technical documentation for Connect published by Fanmiles for the use of Connect.
- The Partner must inform the Fanmiles customers in its data protection information, according to the statutory information, what data is collected on them and how and for what purpose provided this is connected with the use of Connect. Statutory claims related to personal data must be granted to the Fanmiles customer in this respect.
- When using Connect and with regard to the collection of data via Fanmiles customers, the Partner must observe the currently applicable data protection laws. If the Partner transfers transaction data in connection with customer campaigns of Fanmiles, which the Partner may design freely (so-called free text fields), these may not contain any data which would represent personal data of the particular Fanmiles customer for Fanmiles or would permit Fanmiles to draw conclusions on behaviour or omissions of the Fanmiles customer involved (e.g. information on purchased products).
- The data of Fanmiles customers transferred by Connect from Fanmiles to the Partner must be protected according to the statutory requirements against unauthorised knowledge or use. The Partner may not transfer this data to third parties if it has not been expressly permitted to do so by the respective Fanmiles customer or is necessary to fulfil a contractual obligation vis-a-vis the Fanmiles customer. This also applies to aggregated or otherwise summarised or deduced data of Fanmiles customers.
- Fanmiles customers must be offered an easily recognisable and sensible way of making contact with it by the Partner, so that they can contact the Partner directly in the event of questions or problems with transactions conducted by the Partner via Connect.
- The functional scope of Connect is subject to technical development, regarding which Fanmiles shall continuously inform the Partner.
- Fanmiles shall settle the claims that Fanmiles has against the Partner and the claims that the Partner has against Fanmiles under this contract each calendar month after the fact, and for the sake of simplicity shall already set off any mutual claims in this invoice.
- Fanmiles is entitled to prepare and send invoices or credit notes in electronic form (especially as a PDF file).
- Income from cross-promotions shall be credited to the Partner after receipt of the payment of the approved Partner.
11. Assignment of rights to Fanmiles
- The Partner shall assign to Fanmiles all rights to all contents (especially its name, logos, name and appearance of rewards, texts, images or videos) that it places or otherwise integrates in Fanmiles, which Fanmiles needs in order to be able to conduct and offer the partner campaigns associated with these contents. This shall in particular include their contractual use as part of fanmiles.com and apps of the Partner and to use, exploit, store, process, expand, distribute, duplicate publicly reproduce, transfer to other data-carriers, reproduce in image and sound and modify to the extent technically required the contents for this purpose.
- The assignment of rights shall occur in time for the period of this Contract and without restriction in location.
- If Fanmiles grants the Partner the option to advertise partner campaigns through a function of Fanmiles via third party websites (e.g. in the profile of the Partner on Facebook), the Partner shall assign with use of this option for the corresponding campaign to Fanmiles, restricted to this specific purpose, the rights required for this purpose, with the authority to assign the rights to the operator of the third party website. If the Partner also grants Fanmiles in this context advertising on third party websites for its own purposes (e.g. on the Fanmiles Facebook page), the above assignment of rights shall apply correspondingly.
- Fanmiles must remove the Partner's partner page from the publicly accessible Fanmiles service when this contract comes to an end. However, Fanmiles shall not be obliged to recall physical or digital materials that have been published using the rights granted by the Partner.
12. Term of the contract
- This agreement may be terminated by either Party with three months' notice with effect at the end of a month.
- This shall not affect right to terminate the contract for cause. The following reasons, in particular, shall be deemed cause if they apply to the other Party:
- the breach of fundamental contractual obligations by the other Party, if the breach is not cured despite a reminder and the setting of a reasonable deadline. the reminder and the setting of the deadline shall not be necessary if this is unreasonable;
- late payment of an amount of more than EUR 1,000 with a delay of more than 60 days;
- if a Party files for insolvency, if insolvency proceedings are opened and if the insolvency proceedings are refused for lack of assets;
- the initiation of liquidation.
- The Partner's liability and that of Fanmiles shall be based on the legal requirements unless otherwise agreed hereinafter.
- In the case of a breach of fundamental contractual obligations due to ordinary negligence, liability, in terms of the amount, shall be limited to the damage that was foreseeable on forming the contract and is typical for the type of contract. Fundamental contractual obligations are obligations which have to be fulfilled in order for the contract to be properly performed at all and which the injured Party may regularly rely on being fulfilled.
- The limitation period for the claims referred to in para. 2) is one year.
- Para. 2) does not apply to claims arising from bodily injury, injury to health, loss of life, fraudulent acts, the assumption of a warranty and claims under the Product Liability Act.
14. Final provisions
- This contract represents the entire agreement between the Parties in relation to its subject matter. Any differing side agreements or earlier agreements concerning the subject matter hereby become invalid unless they are simultaneously or subsequently concluded in text form (a written form not requiring a personal signature).
- Amendments and additions to this contract shall require text form unless the law stipulates a stricter form. This shall also apply to the waiver of the written form requirement.
- This contract may be supplemented by special terms and conditions of Fanmiles that apply to special offers. They shall apply upon being accepted by the Partner. The special terms and conditions shall have precedence over these General Terms and Conditions in case of conflict.
- If any provision of this contract should be or become entirely or partially invalid, ineffective or unenforceable or if a necessary provision should be missing, this shall not affect the validity and enforceability of the remaining terms of this contract.
- The contract shall be exclusively governed by the law of the Federal Republic of Germany. International private law and the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the extent that it is not mandatory.
- The sole place of jurisdiction for all disputes between the Parties in connection with this Agreement or any further agreements shall be Berlin. The sole place of jurisdiction for all disputes between the Parties in connection with this Agreement or any further agreements shall be Berlin.