Digistore24 GmbH General Terms and Conditions for Vendors and Affiliates

Preamble

Digistore24 GmbH (hereinafter referred to as “Digistore24”) offers products and services via the Sales Platform www.digistore24.com (hereinafter referred to as the “Sales Platform”). The ordering process available there enables the end customer to purchase software, services or other goods (hereinafter referred to as “Products”) from Digistore24. In addition, the Sales Platform also permits the providers of a product or third-party advertisers (hereinafter referred to as “Affiliates”) to advertise the provider’s product online (hereinafter referred to as a “Vendor”; Affiliates and Vendors are also referred to below as “Contractual Partners”), to review or in any other manner generate awareness for the respective product ( hereinafter referred to as the “Affiliate Program”) If an end customer decides to purchase a product, Digistore24 shall purchase the product offered by the Vendor in its own name and for its own account from the Vendor and sells it to the end customer in its own name and for its own account. The contract for the purchase of the product is always concluded between the end customer and Digistore24 on the one hand and Digistore24 and the Vendor on the other. There is no direct sale by the Vendor to the end customer.

Section 1 Scope

1.

The following General Terms and Conditions (hereinafter referred to as the “GTC”) govern the legal relationship between Digistore24 GmbH, St. Godehard-Straße 32, 31139 Hildesheim and the Vendor of goods and services, and the resale of these products to end customers as well as the legal relationship between Digistore24 and the Affiliates who participate within the framework of the Affiliate Program. The agreement is solely intended to apply to entrepreneurs within the meaning of section 14 of the German Civil Code (“BGB”) (hereinafter referred to as “Entrepreneur”), whereby an Entrepreneur refers to a natural or legal person or a partnership with legal personality who, when entering into a legal transaction, acts in exercise of their commercial or independent professional practice.

2.

These GTC apply likewise to all future business relationships even if they are not expressly agreed on again. Contrary confirmations by a Contractual Partner with reference to their own General Terms and Conditions are hereby expressly rejected.

3.

Use of the Digistore24 services is subject to the terms of this agreement provided the Contractual Partner confirms that they have read the provisions of this agreement and consented to its terms by ticking a checkbox during the Digistore24 registration process. Pursuant to these terms and conditions, Digistore24 shall grant the Contractual Partner a non-exclusive, revocable license – which may not be sub-licensed – entitling the Contractual Partner to use the Sales Platform, including the web server, computers, and networks available at www.digistore24.com, used to make this website available for purposes set out in the GTC.

Section 2 Affiliate Program

Affiliates may advertise a product and thus promote sales of such products (“Promotion”) within the framework of the Affiliate Program. For such activities, the Affiliate shall receive a commission from Digistore24 that is determined in each individual case for the respective product. Executing a promotion with the objective of receiving a portion of the sales price generated via the promotion (“Commission”) and using Digistore24 services or another online or offline channel or other medium for such purposes, is subject to the following terms and conditions:

1.

For the advertised products, no services beyond the return or cancellation terms and conditions of Digistore24 shall be offered by the Affiliate, whether explicitly or implicitly, without the prior written consent of Digistore24.

2.

When promoting a product, the Affiliate shall use any associated trademarks, logos and brand or service names that are either provided by Digistore24 or directly by the Vendor.

3.

The Affiliate shall refrain from any prohibited or unauthorized use or any other breach, infringement or misappropriation of intellectual property rights of third parties such as patents, copyrights, trademarks or personality rights, name rights, trade secrets or other rights to intellectual or protected property.

4.

The Affiliate shall refrain from the following acts:

  • Promoting violence;
  • Promoting sexually explicit content;
  • Promoting alcohol, tobacco and medication;
  • Promoting discrimination based on race, gender, religion, nationality, disability, sexual orientation or age, defamation of any person, including brands and/or brand names or any other contents subject to copyright protection, unless this is expressly permitted;
  • Including any variations or incorrect spellings of third-party brands and/or brand names in any domain names, usernames or other descriptions.
  • Use of the Affiliate Program as a rebate system

Even in cases where the Contractual Partner promotes a product as an Affiliate, the contract for the purchase of the product by the end customer is nonetheless concluded between Digistore24 and the end customer. In such cases, the Affiliate shall merely be compensated for their activities as an Affiliate. Such compensation shall be calculated on the basis of the sales price paid by the end customer to Digistore24. A commission can also consist of a fixed amount.

Section 3 Product sales

1.

Products are offered for sale via Digistore24 as described below:

a. The Vendor creates an account at www.Digistore24.com, describes their product or, in the case of software, uploads it. The Vendor then receives a link from Digistore24 which the Vendor then integrates on their website next to the corresponding button (“order now”, “order now for a fee”, etc.).

b. In the event that the end customer decides to purchase a product on the Vendor’s website, the end customer clicks on the relevant button (“Order now”, “Order now for a fee”, etc.). The end customer is then directed to the Digistore24 website, www.Digistore24.com. Here, the end customer is guided through the purchase process. The end customer is informed via the online ordering process on this website that Digistore24 is the seller of the product. In order to buy the product using this ordering process, the end customer must provide personal information, select a payment method, provide the relevant payment information and then initiate the payment transaction. Digistore24 permits the end customer to select various forms of payment. The payment recipient and invoicing party is Digistore24

c. As soon as the end customer has completed the ordering process, Digistore24 buys the product offered by a Vendor in its own name and for its own account from the Vendor and sells it to the end customer in its own name and for its own account. As soon as the end customer has purchased the product from Digistore24, Digistore24 triggers a corresponding order to the Vendor via email or using an interface to the Vendor’s system. Digistore24 pays the Vendor the purchase price agreed between the Vendor and Digistore24 at the time the product is set up by the Vendor in accordance with the terms of the GTC. The Vendor shall be obliged to ship the product(s) purchased by the customer immediately in accordance with the shipping method selected by the customer or to provide the product(s) in accordance with the characteristics and features of the product(s). In this respect, the Vendor acts as a vicarious agent of Digistore24 vis-à-vis the customer.

2.

Products offered for sale via Digistore24 are subject to the following terms and conditions:

a. All products registered for sale via Digistore24, the offer and sale of these products via Digistore24, must comply with applicable laws.

b. Without additional conditions and restrictions, Digistore24 is authorized by the Vendor to list all products registered by the Vendor for sale via Digistore24 in a searchable online product marketplace operated by Digistore24 and to offer them for sale to buyers.

c. At any time, Digistore24 may, at its own discretion and without an indication of grounds, without any obligation to notify the Vendor and without any guarantee of contractual penalties or liability claims, delete and remove products from the Digistore24 marketplace list.

d. The Vendor must provide a valid email address through which Digistore24 can send inquiries that must be answered by the end of the next business day. Digistore24 must be guaranteed to receive a non-automated response within one business day. The Vendor must report all complaints based on a violation of terms and conditions or legal infringements that become known in relation to a product within two business days. This reporting obligation also applies to the threat of filing complaints.

e. The Vendor shall support Digistore24 in responding to any complaints by taking any necessary steps and appropriate actions at their own expense.

f. Upon the sale of a product or a service, Digistore24 shall withhold the tax due in accordance with applicable law (e.g. VAT and use taxes) and remit them to the appropriate authorities. However, if taxes due on a purchase or sale are not withheld or remitted by Digistore24, the Vendor shall bear this responsibility in accordance with relevant laws and regulations which may vary by country. If necessary, an accountant may determine whether any such obligation applies. The Vendor states that in the event any such obligation applies, they assume the full responsibility for the timely payment of any taxes due. If the Vendor specifies a reduced VAT rate (e.g. eBooks) when selling a product, the Vendor warrants that such a product qualifies for the reduced VAT rate. The Vendor indemnifies Digistore24 against all claims of third parties, in particular the tax office or the tax investigation authorities, including any penalties or fines, arising from a culpable misstatement of the tax rate.

g. In the event the Vendor uses the service to inform Affiliates of their products, the Vendor agrees to refrain from providing any false or misleading information about the products, from providing any incentives or promotions for Affiliates unless the Vendor intends to actually fulfil them, to forgo incentives or promotions for Affiliates without an express statement that they are exclusively provided by the Vendor and not by Digistore24.

h. The Vendor shall refrain from making any express or implied statement that the Product is recommended, approved or financially supported by Digistore24.

i. Digistore24 must be notified in full immediately with respect to any changes to previously approved sales pages, products, or even thank you pages.

j. The Vendor shall be obliged to provide correct product information, in particular with regard to tax. The Vendor shall refrain from making untrue statements of any kind in the product description, in particular statements regarding the possibility of an unlimited use of memberships (so-called lifetime access). The Vendor shall indemnify Digistore24 against all damages or claims by third parties resulting from culpable false declarations.

k. The Vendor shall be obliged to transmit evidence (e.g. delivery notes) for cross-border goods traffic electronically to Digistore24 upon request. If the Vendor culpably fails to comply with this request, the Vendor must compensate Digistore24 for the resulting disadvantages.

l. As for the rest, the current service specifications of Digistore24 apply, which can be found at https://www.digistore24.com/page/vendor_pricelist/1.

Section 4 Joint Venture

1.

Various Vendors and/or Affiliates have the opportunity to form a joint venture with Digistore24. The joint venture partners decide themselves in which relationship the individual services are provided (internal relationship). The entirety of the services of the joint venture partners are provided exclusively to Digistore24 (external relationship).

2.

The creation of a joint venture requires registration in the designated mask at www.digistore24.com. The joint venture partners must provide correct and complete information. They also undertake to regularly check that the information is correct and up to date. The information provided in the mask in the back office is significant for Digistore24, especially with regards to the payment of the purchase price and any commissions. Digistore24 does not carry out any checks on the individual details.

3.

Digistore24 reserves the right to refuse joint venture partnerships.

4.

The payment modalities regulated in 6 of these GTC shall apply in accordance with the ratios stipulated in the joint venture. As long as the claims have been assigned to individual joint venture partners in the internal relationship, Digistore24 shall pay the respective joint venture partner exclusively in the name of the assignee.

Section 5 Sending emails

1.

Digistore24 assumes no warranty or liability for the accuracy, completeness, relevance or timeliness of the contents of emails received by the Contractual Partner in connection with the direct or indirect advertisement, sale of a product or the use of a Digistore24 service.

2.

Digistore24 assumes no responsibility for the contents, in particular for cash prizes, rewards, or other incentives offered by other Contractual Partners.

3.

Information provided by Contractual Partners by email is voluntary and is not controlled by Digistore24.

4.

The following actions are prohibited:

  • Sending, initiating or instigating the dispatch of emails to persons who have not expressly requested receipt of such communications, for example, when sending unsolicited mass emails, carrying out so-called email blasts or mass emails, or overwhelming public forums, for example, blogs, message boards, private lists, auction websites and Oldnet, Newsnet, and Newsgroup or other services;
  • Sending, as well as initiating or instigating the dispatch of emails to persons who have expressly stated that they no longer wish to receive communications from the Contractual Partner or the Contractual Partner’s company;
  • The use of false or misleading information related to the identity of the Contractual Partner or regarding the intentions, content or origin of a message or the intentional omission of accurate information regarding the identity as well as the intentions, content or the source of an email.
  • The use of incomprehensible, invalid, misleading, false or manipulated headers in messages;
  • The use of mouse traps or windows that are in all cases only displayed by opening new windows or that cannot be closed;
  • The exploitation of documented and undocumented security loopholes on clients or servers;
  • The omission of clear, valid and identifiable information regarding the sender and the subject of the email;
  • The omission of a functioning reply address (or a functioning hyperlink) in the email address via which the recipient may state, for at least 30 days after dispatch, that they do not want to receive any further emails from the Contractual Partner;
  • Identifying email addresses by automated means and/or sending emails to addresses that were identified in such a manner;
  • Sending emails from any random address that is used to register multiple emails or online user/customers via script or other automated methods or for the subsequent sending of unsolicited misleading emails;
  • Sending or forwarding emails from a protected computer or network that is accessed without appropriate authorization.

Section 6 Termination/Blocking

1.

At its own discretion, Digistore24 shall be entitled to temporarily block the Contractual Partner’s customer account if there are grounds to believe that the Contractual Partner is involved in any of the following activities:

  • Consumer fraud, banking fraud, credit card fraud, sending unsolicited advertisements (spamming) or other illegal sales activities that violate legal regulations, etc.;
  • Breach of third-party property rights;
  • False or misleading statements that violate consumer protection rights as well as competition rights
  • False or misleading statements made to Digistore24.

2.

Digistore24 shall be entitled to terminate the contractual relationship with the Contractual Partner with immediate effect and without notice in the case of contractual breaches and may revoke the right to access Digistore24 services or to otherwise participate in any such services. In the event of such a termination, the Contractual Partner shall immediately cease to use all Digistore24 services.

Section 7 Contract Formation Sale/Invoicing/Payout Rules

1.

As soon as a purchase agreement is concluded between Digistore24 and the end customer, Digistore24 purchases the product offered by the Vendor via Digistore24 as described in section 3.1.

Digistore24 pays the Vendor a purchase price for products sold to the end customer which is calculated as follows: the Vendor specifies a non-binding price recommendation for the purchase price in their account. The purchase price that Digistore24 pays to the Vendor is calculated based on the non-binding price recommendation plus the VAT incurred for the specific sale to the end customer (“sales price”) minus the Digistore24 margin pursuant to the respective Digistore24 price list or individual agreement with the Vendor in relation to a specific Product and minus any applicable commission for the Affiliate.

2.

The payment of the purchase price to the Vendor shall constitute payment for the following services:

  • For physical products:
    • Purchase of the product through Digistore24
    • Delivery of the product to the end customer by the Vendor
  • For digital products;
    • Licensing and delivery to the end customer (e.g. through downloaded products)
    • Granting access to the end customer in member areas
  • For services/workshops:
    • Performance of the service/workshop vis-à-vis the end customer
  • Additionally for all services:
    • Intermediary services of the Vendor
    • First level support (answering questions from end customers, providing help pages).

3.

Digistore24 shall only state the applicable VAT in the invoice if the Contractual Partner has provided Digistore24 with a valid VAT ID number in good time prior to the creation of the invoice. There is no right to a subsequent correction of any invoice.

4.

Digistore24 reserves the right to only make payouts to Contractual Partners who have provided a valid tax number or VAT ID and a valid telephone number.

5.

The Contractual Partner shall be obliged to inform Digistore24 immediately of any changes in address, business name or other comparable changes in connection with the Contractual Partner’s details required for performance of the contract.

6.

As a rule, Digistore24 pays 90% of the purchase price to the Contractual Partner on the next possible payment date, at the earliest 14 days after a successful transaction, subject to payment by the end customer. 10% shall be paid out as a security deposit after 60 days. Digistore24 reserves the right to extend the payment of the 90% of the purchase price for products purchased by Digistore24 from the Contractual Partner to 30 days if the price of the product is more than €300.00. Digistore24 reserves the right, at its own discretion, to withhold payment of all or part of the purchase price to the Contractual Partner in the event of suspicion of any of the actions listed under 5, as well as in the event of the sale of products with malfunctions, insufficient product access or insufficient support. The Contractual Partner shall be informed immediately by Digistore24 of the circumstances that lead to a withholding.

7.

Digistore24 shall make purchase price payments to the Vendor above a minimum amount of €50.00. In the event this minimum amount is not reached, the purchase price shall be retained until the minimum amount is reached. In the event that the contractual relationship between Digistore24 and the Contractual Partner is terminated prior to reaching the minimum amount, a payment shall be made even if it is less than €50.00.

8.

The demand on the payment of the purchase price pursuant to 6.5. and 6.6. arises under the condition precedent of full payment of the purchase price by the end customer to Digistore24. The amount payable to the Vendor shall be reduced accordingly if it is only partial payments, installments or installments are paid by the end customer.

9.

The amount of the Affiliate’s commission is based on the marketed product and is agreed on individually. Depending on the individual agreement, Digistore24 shall pay the resulting commissions weekly, bi-weekly or monthly.

10.

There is no entitlement to a commission if an Affiliate is also a Vendor and purchases their own Product at the same time. There is also no right to a commission with a self-purchase, meaning, if the Affiliate purchases a product via their own Affiliate link.

11.

The Affiliate's commission claim arises upon receipt of the purchase price by Digistore24. If only part of the purchase price is received, the commission claim corresponds to the proportion of the amount received. The commission claim expires if the underlying purchase contract is reversed and Digistore24 repays the purchase price to the buyer. If the Affiliate has already received the commission at the time of the reversal, they are obliged to reimburse it. Digistore24 shall be entitled to offset this repayment amount against current commissions (offsetting).

12.

The contractual partner shall be obliged to check settlements, statements or overviews immediately after they become available. Objections with regard to the content must be raised in text form at the latest within 60 days. If the Contractual Partner does not object to errors in a credit note or invoice within 60 days after it has been issued, the credit note, or invoice shall be deemed to be correct. The credit note, or rather the invoice, shall be deemed to have been approved. Further complaints are then excluded. In particular, the Contractual Partner has a duty of regularly checking the credit notes and invoices in the Digistore24 back office.

13.

The Contractual Partner agrees that the invoices may only be sent electronically.

Section 8 Intellectual property rights

1.

The Contractual Partner is not permitted to use the name, trademarks, service marks or intellectual property rights belonging to Digistore24 in any form that implies an association with or approval by Digistore24 without the express, prior and written consent of Digistore24.

2.

Any authorization granted by Digistore24 may be revoked at any time.

3.

Digistore24 grants the Contractual Partner limited, revocable authorization to use the name Digistore24 and Digistore24.com exclusively as set out below:

  • As a watermark;
  • In a descriptive text on a website as a keyword;
  • As a search term;
  • As a seeding element on an internet search engine;
  • In metatext or in a hidden text;
  • As a sub-domain or a domain name at a secondary or third level;
  • To identify products or in connection with advertisement

4.

The Vendor guarantees Digistore24 that it is the owner of all rights of the product and that it is the holder of all rights of the marketing materials that supplement the product, e.g. product descriptions, product information, customer reviews, images and other materials from the Vendor (hereafter referred to as the “Work”).

5.

For the duration of their collaboration, the Vendor grants Digistore24 a free, non-exclusive, irrevocable, global right to use and exploit the work in a comprehensive manner, in particular for the purpose of commercial marketing. This grant expressly includes all forms of offering and promoting the products online, in particular the integration within fee-based or free online services, price search engines, blogs and websites.

6.

If the product or work on offer is a digital product, the Vendor shall also grant Digistore24 the following additional rights of use:

  • Authorization to permit the end customer to permanently store the work;
  • The right to reproduce, make publicly accessible and distribute the work, i.e. the right to reproduce, make publicly accessible or publicly perform the work with the aid of any available technical capabilities, in particular by means of digital integration into a website operated by Digistore24;
  • The right to make the work available on demand, i.e. the right to store the work, to hold it ready for public access, to transfer it to one or more persons who seek access and also to analogue or digital electronic databases, electronic data networks, and telecommunications services networks;
  • The right to public performance;
  • The right to modify the Work itself or have it modified by third parties subject to copyright laws, in particular for purposes of integrating the work into the Digistore24 website.

7.

In connection with the performance of this contract, the Vendor grants Digistore24 the right to use the respective title of the works as well as names, logos, images, trademarks and company symbols of both the Vendor and author of the work including expressly for promotional purposes.

8.

The Vendor likewise grants Digistore24 the right to grant sub-licenses in connection with the rights of use granted above.

Section 9 Data Protection and Non-disclosure Obligation

1.

The Contractual Partner may be granted access to confidential information as part of the parties’ collaboration. In this context confidential information includes, but is not limited to, the identity of other Contractual Partners, information about buyers, information about physical security and data security, technical data, Digistore24 marketplace statistics and sales data, know-how, information about business processes, methods and marketing strategies. With the exception of fulfilling its obligations within the scope of the parties’ collaboration, the Contractual Partner may not disclose such confidential information to third parties or use such confidential information for their own benefit or the benefit or a third party without the express and prior written consent of Digistore24.

2.

The confidential information may not be used to urge Digistore24 customers to use other services, or to cause them to be so urged, or to advertise for the sale of products that directly or indirectly compete against Digistore24 or Digistore24 services, including the function of the marketplace.

3.

All suggestions, submissions, comments, ideas, concepts, informational materials and feedback sent to Digistore24 by the Contractual Partner shall be deemed non-confidential. The Contractual Partner grants Digistore24 and the licensees a global, permanent, non-exclusive, royalty-free, and transferable license, which may be sub-licensed, to reproduce, publicly display, distribute, perform, broadcast, edit, modify, alter and publish, sell, commercially exploit, use or disclose such non-confidential information for any purpose and in all forms and media currently known.

Section 10 Duty to Indemnify and Hold Harmless

1.

The Contractual Partner shall be obliged to indemnify Digistore24 with respect to all compensation for damages and liability, claims, and costs (including the costs of legal investigation and defense as well as reasonable attorney’s fees, litigation, and court costs) in the event that claims are asserted against Digistore24 in connection with the use of Digistore24 services by the Contractual Partner and/or products or promotions.

2.

The Contractual Partner shall be obliged to indemnify Digistore24 with regard to all compensation for damages and liability, claims and costs (including the costs of legal investigation and defense as well as reasonable attorney’s fees, litigation and court costs) asserted by a third party against Digistore24 on the basis of a defect in the product regardless of whether the claim relates to compensation for direct, incidental or indirect damages, penalties, statutorily prescribed damages or comparable damages.

3.

In the event that the aforementioned claims are based on the Contractual Partner performing or being involved in the following actions, Digistore24 shall be entitled to offset payment obligations owed to the Contractual Partner, if any, against the aforementioned right to indemnification and to withhold the corresponding payments:

  • Consumer fraud, banking fraud, credit card fraud, sending unwanted advertising (spamming) or other illegal sales activities that violate applicable provisions of law, etc.;
  • Breach of third-party property rights;
  • False or misleading statements that violate consumer protection rights or competition law.

Section 11 Availability and Limitation of Liability

1.

Digistore24 provides the Contractual Partner with various information and other services for temporary use. The content and scope of such services are specified in the relevant contractual agreement and otherwise based on the functions available at any given time on the portal.

2.

Available services may also include third-party services for which Digistore24 merely facilitates access. Regulations that deviate from or supplement these terms and conditions of use may be applicable to the use of any such services. In all other respects, the right to use available services is limited to the scope of Digistore24’s technical and operational capabilities. Digistore24 endeavors to make the services available without interruption to the greatest extent possible. However, technical malfunctions (e.g. interruptions in power supply, hardware or software errors, technical problems in the data lines) may result in temporary limitations or interruptions.

3.

Liability on the part of Digistore24, irrespective of legal grounds, is excluded unless it concerns the breach of an obligation, the fulfillment of which renders it possible to perform the contract in the first place and the performance of which the Contractual Partner may normally rely upon (“material contractual obligation”) as well as for damages related to an injury to life, body or health. In such cases, liability on the part of Digistore24 is unlimited.

4.

The limitations on liability set out in section 10.3 of these GTC also apply in favor of Digistore24’s employees, representatives and agents.

5.

In all other cases, the duty to indemnify is limited to foreseeable damages. Insofar as legally permissible, the exclusion of liability for Digistore24 applies in particular to system failures and the associated lost income or commissions. In the case of liability due to a system failure, liability is limited to recovery costs that would have been incurred had proper backups on data been made by the Contractual Partner.

6.

Similarly, insofar as legally permissible, Digistore24 is not liable for lost income or commissions in the event of a tracking error.

Section 12 Referencing by Digistore24

1.

The Contractual Partner grants Digistore24 the right to name them as a reference customer within the scope of commercial activity, regardless of the transmission, carrier and storage technologies, using its company logo.

2.

The right shall be granted for a limited period of time for the contract duration, without any restrictions in terms of content and territory. It shall entail the right to describe the services of Digistore24 including, if applicable, verbatim quotations in whole or in part. Digistore24 shall also be entitled to use the name, logo, brand or trademark of the Contractual Partner for advertising purposes, particularly in electronic media.

3.

The Contractual Partner may revoke this consent for good cause. The revocation must be issued at least in text form.

Section 13 Final provisions

1.

The place of performance for all claims arising under the contractual relationship is Hildesheim.

2.

Insofar as the Contractual Partner is a registered trader within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a public sector fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Hildesheim.

3.

German law shall apply subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

4.

The contractual language is German.

5.

Any modifications to this agreement must be made in writing. This written form requirement likewise applies to any waivers of this written form requirement.