Affiliate terms - MailBlue

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Affiliate Terms and Conditions

Version 2.0 - December 2023

The following terms and conditions apply to the agreement between MailBlue, registered at the Chamber of Commerce under number 68740077 (hereafter “MailBlue”) and its contracting party (hereafter the “Affiliate”).

By registering on MailBlue’s Affiliate dashboard, the Affiliate agrees to these terms and conditions and becomes part of MailBlue’s Affiliate Programme.

Clause 1. DEFINITIONS

The terms written with an initial capital letter in these affiliate terms and conditions have the meanings set out below (whether singular or plural):

Affiliate Dashboard: MailBlue’s dashboard, accessible at https://login.mailblue.nl/, where Affiliates can access promotional materials, payment statements and other items relevant to the Affiliate Service.
Affiliate Service: the services to be performed by the Affiliate under the Agreement, which consist of recruiting identified Visitors who wish to enter into an Agreement with MailBlue.
Affiliate Link: a link generated by MailBlue with special characteristics of the Affiliate, from which MailBlue can deduce how many Visitors have entered MailBlue’s website via the Affiliate or have purchased MailBlue’s services and/or products.
Affiliate Terms and Conditions: these present terms and conditions.
Visitor: any visitor who accesses the MailBlue website via the website(s) and/or other services under the management of the Affiliate via the Affiliate Link.
Intellectual Property Rights: all intellectual property rights and related rights, including in any case copyrights, database rights, rights to domain names, trade name rights, rights to know-how, trademark rights, design rights, neighbouring rights and patent rights.
Agreement: the agreement between the Affiliate and MailBlue in the context of the Affiliate Service.
Transaction Agreement: the agreement between MailBlue and the Visitor formed as a result of the Affiliate’s promotion.

Clause 2. Nature of the Affiliate Service

MailBlue offers a software-as-a-service (SaaS) solution for email marketing automation, where Visitors can find out information and/or enter into agreements with MailBlue for the services that MailBlue offers.
If Visitors enter into a Transaction Agreement thanks to the Affiliate Service, it is with MailBlue and not with the Affiliate.
The Affiliate will perform Affiliate Services for MailBlue for which MailBlue will pay the Affiliate a fee for each concluded Transaction Agreement.
By entering into this Agreement, the parties expressly are not forming a professional partnership, general partnership, public partnership, joint venture or similar collaborative arrangement. Neither party is authorised to make commitments on behalf of the other.
The parties recognise that numbers of interested Visitors and revenues cannot be guaranteed and the parties do not claim exclusivity.
When applying, the Affiliate must fill in the data requested by MailBlue, such as name, address, VAT number, account number and suchlike, fully and truthfully via an online form on the website: https://login.mailblue.nl. MailBlue has the option to apply a selection procedure for applications. MailBlue is entitled to refuse an application without giving reasons.
After conclusion of the Agreement, MailBlue provides the Affiliate with access to the Affiliate Dashboard that allows the viewing of promotional materials, payout information and fees due. The Affiliate is obliged to keep the password strictly confidential. MailBlue is not responsible for misuse of the password and may assume that everything that happens with the username and password provided to the Affiliate is at the Affiliate’s responsibility and risk.

Clause 3. Promotion by the Affiliate

The Affiliate will undertake promotion for MailBlue, which is at its own discretion within the scope of this Clause. However, promotion may only be on or in websites, advertisements, flyers, leaflets and other services managed by the Affiliate. The Affiliate will place Affiliate Links on the websites and other services managed by the Affiliate in the context of MailBlue’s campaigns.
In the promotion, the Affiliate may use self-produced materials such as texts and images, and the Affiliate will not use materials from MailBlue, subject to the exception in Clause 3.3. In this regard, the self-produced promotional materials should be prepared on the basis of MailBlue’s house style manual. This manual can be accessed via the Affiliate Dashboard.
The requirements that Clause 3.2 attaches to self-produced promotional materials do not apply to materials designated as promotional by MailBlue or to MailBlue’s trade name, trademark and logo. The latter may be used but in unmodified form, and MailBlue may impose conditions on the manner of their presentation. MailBlue indemnifies the Affiliate in respect of third-party copyright claims relating to the promotional materials.
Other obligations of the Affiliate:
1. The Affiliate will submit the materials it wishes to use for the Affiliate Service to MailBlue in advance for approval. MailBlue may give instructions which must be followed before approval is granted.
2. The Affiliate will not make any statements that could potentially harm MailBlue.

The Affiliate will not make any statements that could potentially harm MailBlue.

The Affiliate is not allowed to:
1. conduct promotion of an illegal nature on websites or services; conduct promotion by means of unsolicited electronic communication via email, SMS or a similar medium (“spam”), when done without the legally required opt-in;
2. display promotional or advertising messages that are erotic or pornographic in nature on websites or other media;
3. display promotional or advertising messages that are violent or extreme in nature on websites or other media;
4. provide promotional messages with inducements of any kind to visitors to click on the promotional materials or falsely present itself as a potential customer;
5. display promotional messages in a way that is or could reasonably be harmful to MailBlue’s reputation.
The Affiliate will not make any statements in relation to MailBlue’s offer that are false or that violate relevant legislation, such as laws on comparative advertising, unfair commercial practices or consumer rights.
If MailBlue reasonably suspects that the Affiliate is in breach of the provisions of this Clause, it will inform the Affiliate accordingly. The Affiliate will then cease or desist from the relevant action as soon as possible, failing which MailBlue may terminate the Agreement. The Affiliate will then cease or desist from the relevant action as soon as possible, failing which MailBlue may immediately terminate or suspend the Agreement and block the Affiliate’s access to the Affiliate Dashboard.

Clause 4. Fee for the Affiliate Service

As a fee for the Affiliate Services, MailBlue will be due an amount of 35% of the subscription price (excluding VAT) to the Affiliate for each identified Visitor who actually enters into a Transaction Agreement with MailBlue, unless otherwise agreed. The fee is based only on the Lite, Plus and Professional subscriptions that Visitors take out with MailBlue as a result of the Affiliate Service. Add-ons are not part of the fee calculation. See the website https://mailblue.nl/prijzen for more information on subscription types.
A fee is payable to the Affiliate when the Visitor’s first visit can be traced to the Affiliate through an Affiliate Link and a Transaction Agreement is concluded from this within thirty (30) days, unless otherwise agreed. If the visit can also be traced to one or more other affiliates, the fee will be sent to the most recently registered affiliate.
The fee will be paid for a maximum of twelve (12) consecutive months in the event that the Visitor purchases MailBlue’s services as referred to in Clause 4.1 for twelve consecutive (12) months or more than twelve (12) months, regardless of whether it is a monthly or annual subscription, unless otherwise agreed.
No fee will be payable if the Transaction Agreement is concluded after the date when this Agreement is terminated. However, a fee is payable if only the approval referred to in the next paragraph is given after this time. MailBlue may refuse (disapprove) a fee without giving reasons. If MailBlue does not disapprove a fee within thirty (30) days, the fee is deemed to be approved.
In case of fraud, such as artificial traffic generation, the Affiliate will be liable to pay an immediately due contractual penalty of €100 per incident, subject to a maximum of €15,000 per year.

Clause 5. Invoicing and payment

Payment of fees that are due will be made quarterly. However, MailBlue is entitled to suspend payment if the amount to be paid out is less than €50.
MailBlue will issue a credit invoice in the month following a completed quarter (April, July, October and January).
The payment term of the credit invoice is thirty (30) days after the date stated thereon.
If the Affiliate is not based in the Netherlands, MailBlue is entitled to require submission of a VAT number before making payment.

Clause 6. Maintenance and faults

MailBlue has the right to disconnect the Affiliate Service and the Affiliate Dashboard, associated websites or parts thereof temporarily for the purpose of maintenance, adaptation or improvement thereof and/or maintenance, adaptation or improvement of the associated software or other facilities. MailBlue will make every effort to have this disconnection of the service occur as far as possible out of office hours and to inform the Affiliate of the planned disconnection in good time if possible. However, MailBlue is never obliged to pay any compensation for damage in connection with such a disconnection.

Clause 7. Reports

For the purpose of determining the results, MailBlue will provide the Affiliate with access to a dashboard that can be examined via the website https://login.mailblue.nl/. This dashboard can be accessed via the Affiliate Dashboard.
The results as reported under the previous paragraph are binding unless the Affiliate can provide convincing evidence to the contrary.

Clause 8. Liability and force majeure

MailBlue’s liability for damage resulting from a failure to perform the Agreement, an unlawful act or otherwise is limited to the total fees excluding VAT paid to the Affiliate in the three (3) months before the time when the damage occurred. This limitation of liability applies regardless of the number of events.
Without prejudice to the foregoing, MailBlue is expressly not liable for indirect damage suffered by the Affiliate. For the purposes of this Agreement, indirect damage is understood by the parties to mean only (i) lost sales or profits, (ii) missed savings, (iii) damage for delay, (iv) reduced goodwill, or (vi) damage resulting from business interruption.
In the event of a culpable failure to perform the Agreement, MailBlue is only liable if the Affiliate immediately and properly issues MailBlue with a notice of default in writing, giving MailBlue a period of thirty (30) days to remedy the failure, and if MailBlue remains culpably in default even after the expiry of that period.
Any limitation or exclusion of liability agreed between the parties does not apply if and to the extent that (i) the damage is the result of intent or deliberate recklessness on the part of MailBlue, or (ii) the limitation or exclusion would otherwise be contrary to applicable laws and regulations.
Fulfilment of the Agreement by MailBlue will be suspended in the event of force majeure, which in any event includes disruptions in the internet or telecommunications infrastructure, (D)DoS (Distributed Denial of Service) attacks, civil commotion, mobilisation, war, traffic congestion, strikes, lockouts, operational disturbances, supply stoppages, fire, floods and import and export restrictions, and if MailBlue is unable to deliver because of its suppliers, regardless of the reason, as a result of which MailBlue cannot reasonably be required to fulfil the Agreement.
The Agreement must be terminated in writing. Performance already completed under the Agreement will in that case be settled pro rata, without the parties being due anything else to each other insofar as this results from the force majeure situation.

Clause 9. Duration and termination

This Agreement is entered into for an indefinite period.
Either party may terminate the Agreement at any time.
Upon termination of the Agreement, MailBlue will pay the outstanding balance of fees in accordance with Clause 5. MailBlue is not obliged to pay this balance to the Affiliate if MailBlue terminates the Agreement on the basis of fraud committed by the Affiliate, and where termination is due to a breach of a prohibition under Clause 3, the Affiliate is not entitled to payment of any outstanding fee.
MailBlue is entitled to suspend its obligations to the Affiliate if there is a suspicion that the Affiliate is in breach of the Agreement in any way whatsoever, without MailBlue being liable to pay any compensation. The suspension only ends after the Affiliate has removed the basis for it to MailBlue’s satisfaction.

Clause 10. Clean-up campaign for inactive Affiliates

Affiliates that are considered inactive may be subject to a clean-up action. MailBlue will then terminate the Agreement between the parties.
An Affiliate is considered to be inactive if no Visitors are identified by the Affiliate who have concluded Transaction Agreements with MailBlue for a continuous period of three (3) months.
MailBlue will notify the inactive Affiliate via the Affiliate Dashboard if MailBlue intends to terminate the Agreement between the parties. The Affiliate will then have fourteen (14) days to respond whether the Affiliate will resume and/or start providing Affiliate Services.
If it appears that the Affiliate is still inactive or has not provided an appropriate response after the period of fourteen (14) days referred to in Clause 10.3, MailBlue may proceed to terminate the Agreement between the parties.

Clause 11. Disputes and applicable law

The Agreement and these Affiliate Terms and Conditions are governed exclusively by Dutch law.
Disputes between the parties that cannot be settled amicably will be brought before the competent Dutch court for the district where MailBlue has its registered office.

Clause 12. Amendment and additions

Any general terms and conditions used by the Affiliate do not form part of the Agreement.
If any provision of the Agreement or these Affiliate Terms and Conditions should be contrary to applicable law, that provision will be amended so as to be in accordance with applicable law, taking into account the purport of the relevant provision.
MailBlue has the right to amend the Agreement or these Affiliate Terms and Conditions or to add new terms and conditions. Such amendments or additions will take effect thirty days after notification to the Affiliate.
If the Affiliate does not wish to accept an amended or added condition, it must terminate the Agreement within these thirty (30) days. If the Affiliate fails to do so, it indicates its consent to the amended or added condition(s).

Clause 13. Other provisions

The parties will not, without prior consent, provide information and/or communicate to third parties about the contents of the Agreement or these Affiliate Terms and Conditions, the cooperation between the parties or the results of the Affiliate Service.
The Affiliate is not entitled to assign this Agreement and all of its rights and obligations under it to a third party without separate consent from MailBlue. MailBlue is entitled to assign this Agreement and all of its rights and obligations under it to a third party.
The version of any communication between the parties received or stored by MailBlue is deemed to be the authentic version, unless the Affiliate can prove that this version is not authentic.
If any data relevant to MailBlue concerning the Affiliate changes, the Affiliate will inform MailBlue immediately via the Affiliate Dashboard.

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