TERMS AND CONDITIONS
This agreement govern the relationships between the Affiliate (as defined in the Order) and Advice Global ltd, with its registered offices in CMS House, Third Floor, St. Peter’s Street, San Gwann, SGN, 2310 MALTA, VAT MT23269314 (hereinafter, “Advice Global“). The Affiliate and Advice Global are below jointly indicated as the “Parties”.
- In certain cases, Advice Global needs to spread the number of recepients of its marketing campaigns; as a consequence, Advice Global allows third parties that operate in the sector of digital marketing, among those there is the Affiliate, to adhere to a partnership agreement that offers a variable remuneration on the basis of the services offered by the affiliates to Advice Global aimed at promoting the marketing campaigns run by Advice Global with the purpose to spread the number of recepients of such campaigns (“Services”).
- The Services include both the sending of promotional e-mails and the adoption of so-called display campaigns, such as those that are based on banners ads.
The Services provided by the Affiliate include the sending of promotional e-mails to data subjects whose personal data, including the e-mail addresses, are processed by the Affiliate in its quality of data controller (“Data Subjects”). Said promotionals e-mails may contain, from time to time, materials indicated by Advice Global or deliberately identified by the Affiliate, with exception of the so-called footer (i.e. the wording the is present at the bottom of each promotional e-mail), which shall reproduce, in any case, the indication of the company name of the sole Affiliate, which acts as data controller and shall display as the sender of the communication.
- In the context of the Services, Advice Global does not have access, in any case, to personal data relating to Data Subjects, whose data are, in fact, exclusively processed by the Affiliate in its quality of data processor, as well as from potential third parties appointed by the Affiliate such as its data processors or designated persons for the processing. At any time Advice Global may become autonomous data controller in respect of personal data relating to the Data Subjects, such as when the latters should spontaneously provide Advice Global with their data and consent for its own purposes following a communication received by the Affiliate.
- The Parties are willing to ensure the protection of the Data Subjects, by means of the most stricter approach in respect of the laws on the protection of personal data, including the including the Maltese Legistlation (“Privacy Code”), the Regulation (UE) 679/2016 (“GDPR”), any other national provision implementing GDPR that may be applicable in relation to the Services, including, by merely way of example and not limited to, the legislative decree adopted on the basis of article 13 of Law no. 163/2017 (“National Laws Implementing GDPR”) and, finally, the Decision no. 330/2013 issued by the Italian Data Protection Authority containing Guidelines on Marketing and against Spam (“DPA Decision”). The Privacy Code, the GDPR, the National Laws Implementing GDPR and the DPA Decision are together and hereinafter defined as the “Privacy Laws”.
Having that said, the Parties agree to come to this agreement (“Agreement”).
- COMPLIANCE WITH LEGISLATION ON THE PROTECTION OF PERSONAL DATA
1.1 The Affiliate declares and warrants the following:
1.2 All Data Subjects have received adequate notice pursuant to Articles 13 and/or 14 of the GDPR (“Privacy Notice”).
1.3 The Data Subjects have been informed about their rights pursuant to the applicable Privacy Laws, about the Privacy Notice within the terms indicated by the Privacy Laws and/or at the first communication, with particular regard to provisions of GDPR.
1.4 Modalities in which consent for processing has been collected by the Data Subjects, including the consent for commercial purposes, do comply with principles of transparency. Data Subjects have not been deceived and misled for obtaining their consent. Privacy Laws have been respected in this regard.
1.5 The Affiliate is able to demonstrate and adequately prove the acquisition of the Data Subjects’ consent, including the consent for marketing or profiling pruposes, where applicable, and the compliance with the Privacy Laws.
1.6 In case of exercise of Data Subjects’ rights, including, by merely way of example, the right to object from processing of personal data for commercial purposes, the Affiliate undertakes to comply with provisions issued with Privacy Laws, as applicable. Moreover, the Affiliate undertakes to do not involve Advice Global in requests submitted to the Affiliates by Data Subjects, since the Affiliate shall respond as sole data controller in respect of processing activities carried out by the Affiliate itself.
1.7 The Affiliate shall not involve Advice Global, in any case, in any dispute, both judicial or not, in which it is involved against Data Subjects, where their data have been processed by the Affiliate as sole data controller, arising from communications sent by the Affiliate within the scope of the Services, including proceeding of any kind initiated before a data protection authority that is from Malta or a Member State of the European Union.
1.8 If the Affiliate should involve third parties in the provision of the Services, such as, by way of example but not limited to, its sub-contractors or sub-affiliates, it will undertake to impose on such third parties appropriate contractual measures to ensure compliance with the Privacy Laws with respect to the data processed by such third parties, for whatever reason.
1.9 Advice Global may, at any time, carry out sample audits/checks of the compliance of the Affiliate or its delegates, including its subcontractors and/or sub-affiliates, in respect of the Privacy Laws. Therefore, Advice Global shall have the right, at any time, to request the Affiliate to immediately provide the documentation proving the existence and suitability of the consent of the recipients of the communications sent by the Affiliate and/or by third parties appointed by it for this purpose (e.g. sub-suppliers and/or sub-affiliates).
- OTHER OBLIGATIONS OF THE AFFILIATE
2.1 The Affiliate undertakes to:
2.2 Provide the maximum cooperation and collaboration for the performance and providing of the Services.
2.3 Not to assign this Agreement or part of it, free of charge or for a fee, and not to allow third parties, even qualified ones, to carry out the activities of the present contract, without the prior authorization of Advice Global.
2.4 Not to start any campaign without the explicit acceptance of any conditions additional to or different from those agreed in this Agreement without the prior written consent of Advice Global.
- OBLIGATIONS OF Advice Global, REMUNERATION AND CALCULATION CRITERIA
3.1 Advice Global may use any technology that is useful in order to monitor the results and track the performance of the Services provided by the Affiliate. At the Affiliate’s request, Advice Global will inform the Affiliate of the progress of the activities agreed within the Services, providing the documentation that was agreed with the Affiliate.
3.2 Advice Global shall pay the Affiliate, for the activities carried out within the scope of the Services, the fee agreed from time to time in the order, in the manner previously agreed.
3.3 Advice Global will pay the fees that have accrued only after acceptance of the generated traffic and/or of the so-called “lead” and/or clicks and/or the actual number of promotional communications sent and/or banners displayed (in case of a so-called display campaign), which will be verified by Advice Global directly or by Advice Global’s customers. Upon completion of this verification, Advice Global will send the Affiliate a request to forward the corresponding accounting document. Payment shall be made within 60 (sixty) days of receipt of the said accounting document.
3.4 The amount of the fees accrued for the Services rendered by the Affiliate will be calculated on the basis of the criteria set out in the order form and will be due once it reaches the minimum amount of Euro 100.00. In the event that this minimum threshold has not been reached, payment of the consideration shall be suspended until the consideration accrued does not exceed the aforesaid overall amount.
- RIGHT TO COMPENSATION
4.1 The Affiliate agrees and acknowledges that the payment of the fees agreed for the Services may be offset against the credits accrued by Advice Global to the Affiliate, for any reason, prior to, during or after the conclusion of this Agreement, regardless of the period in which the Services are provided.
- SUSPENSION, MONITORING AND TERMINATION
5.1 Advice Global may, at its sole discretion, carry out checks to identify the generation of fictitious and/or invalid leads, which will be promptly communicated to the Affiliate.
5.2 Where fictitious traffic volume or leads is identified in the amount exceeding the 10% (or the different percentage indicated in the order) of the total traffic and/or the cd. leads that have been generated by the Affiliate, and being saved the right to termination provided by this agreement, Advice Global may suspend any collaboration and to correspondingly reduce the amount of the accrued fees.
5.3 If the Affiliate fails to comply with any of the provisions of this Agreement, the Privacy Laws and any other applicable law, including, but not limited to, consumer protection law, the Affiliate irrevocably acknowledges Advice Global’s unquestionable right to suspend any payment that may be due to the Affiliate and/or to terminate and/or cancel the collaboration with the Affiliate in the most serious cases, without prejudice to the right to exercise the immediate termination of the agreement in accordance with the provisions of this agreement as well as the right of compensation for the damages suffered by Advice Global or by its directors, employees, agents and customers (such as, by way of example, its advertisers).
6.1 This Agreement is valid for twelve months from the date of subscription or from the date of acceptance of the order. Upon expiration, it will be deemed implicitly renewed for a further twelve months, unless expressly terminated by one of the Parties. In this case a notice shall be sent to the other party by registered mail letter with receipt and however with prior notice of two months.
7.1 The Affiliate shall fully indemnify Advice Global, its directors, employees, agents and customers (such as, for example, its advertisers) from any direct and / or indirect injury, claims for damages, both direct or indirect, including claims arising from the Affiliate or from a third party, loss, damage, cost and / or expense (including legal costs and / or other costs for consultants that may be necessary) arising from the Services provided. This indemnification shall also apply to damages arising from the violation of legislation other than the Privacy Laws, including, by merely way of example, the legislation protecting the rights of consumers, even in cases where the Affiliate’s liability derives from contents provided by Advice Global which the Affiliate has not verified before using it.
- EXPRESS TERMINATION CLAUSE
8.1 Advice Global, without prejudice to its right to compensation for damages, may terminate this Agreement, in accordance with and for the purposes of art. 1456 of the Civil Code, notifying the Client, in any form, his intention to make use of this express termination clause. This express termination clause shall apply in the case of a breach by the Client of any of the following provisions:
(a) COMPLIANCE WITH LEGISLATION ON THE PROTECTION OF PERSONAL DATA
(b) OTHER OBLIGATIONS OF THE AFFILIATE
(c) CLAUSE 5.2
(d) CLAUSE 5.3
- GOVERNING LAW AND JURISDICTION
9.1 This Agreement and any other dispute arising out of this Agreement shall be governed by the laws of Malta. In addition, all disputes arising out of this Agreement shall be submitted to the exclusive jurisdiction of the Court of Valletta.
Pursuant to the Maltese Civil Code, the Affiliate declares to have read and to explicitly and specifically approve the following provisions of this Agreement with the Affiliates: 1.7 (limitation of liability), 1.8 (involvement of third parties), 2.3 (assignment), 3.3 and 3.4 (payments), 5.2 and 5.3 (suspension and termination), 6.1 (duration), 7.1 (indemnity), 8.1 (express termination clause), 9.1 (jurisdiction and applicable law).