memail is a service provided by MeMail AG, Friedrichstr. 171, 10117 Berlin (hereinafter: "memail").
For all agreements concluded between memail and memail’s customers (hereinafter: "Users") which refer to these General Terms and Conditions (T&Cs) in relation to the use of the memail services, the following provisions apply exclusively. Any conflicting terms of business of the User shall not form part of the contractual agreement unless memail has expressly agreed to them in writing. This applies equally to services provided by memail for payment and those provided free of charge.
memail is entitled to alter or amend these T&Cs to the extent this seems necessary and provided the users involved are not consequently disadvantaged in a manner contrary to the principles of good faith. These T&Cs can also be amended as a reaction to new technical developments, changes to case law, the legal situation or other equivalent reasons. Users will be notified in text form in advance of any amendments to the T&Cs. Any amendments which considerably disrupt the contractual balance between the parties require the express consent of the User. Otherwise, such amendments will be deemed to have been accepted if the User does not object in text form within six weeks of receipt of the notification. memail will expressly advise the User of this consequence and the consequences mentioned below within the notification of the changes. In the event of an objection, memail is entitled to restrict the use of the account while allowing access to the already existing data (restricted to access to emails sent and received up to that point) and to terminate any agreements concerning services provided free-of-charge services concluded with application of the T&Cs prior to their amendment, by giving two weeks’ notice. In the event of an objection to the new T&Cs, memail will be entitled to an extraordinary right of termination to the extent that memail cannot reasonably be expected to remain a party to the agreement, taking into account the interests of memail and of the User, in particular if memail or the User would, were the contractual relationship to be continued under the previous T&Cs, be in violation of applicable statutory provisions.
The User is a "consumer", to the extent the purpose of the use of memail’s services cannot be attributed predominantly to the User’s commercial or self-employed activities. A "Business Entity" on the other hand is a natural or legal person or a private company with legal capacity, which is acting, when concluding the agreement, in the scope of carrying on its commercial or self-employed activities.
Subject matter
memail is a provider of email services (email addresses and email storage). Details on the various services and their scope can be found in the respective product and service specifications.
Agreements relate to individual services, unless several services are expressly offered as a package. Where services are added to already existing services (e.g. additional email storage) there will generally be independent agreements to cover those additional services.
These T&Cs apply to all contractual agreements concluded between memail and the User, including the registration and use of memail without the conclusion of any agreements subject to payment, which have to be accepted in the course of the respective registration or order process.
Requirements for using memail; adding signatures to emails
memail services may be used by persons who are at least 16 years of age. For minors, who have not yet reached 18 years of age, prior consent is required from a parent or legal guardian.
The offer of free of charge email services (email address and/or email storage space) is limited to one free of charge package per natural person.
With regard to free of charge email services, memail is entitled to add an automated reference to memail to the User’s incoming and outgoing emails within a signature.
Registration, verification and login details
Use of the service requires prior registration, in which the user sets a username and password (login details). Registering with memail is possible without verification, however the use of the services requires additional verification (double opt-in process via email or mobile phone number). A password reset ("Forgot password?") is only possible where the user has provided verification details beforehand, hence verification is generally recommended.
Passwords for the account and for individual services must not be shared with third parties. The User undertakes to keep them strictly confidential and protect them from third parties. The User must immediately change any passwords as soon as there is any indication that unauthorized third parties have or could have obtained knowledge of login details. All passwords should be changed regularly.
The use of chargeable services requires the User’s contractually relevant information (first name and surname, address, payment details etc.). The User undertakes to provide truthful information and warrants that all contractually relevant information (in particular first name and surname, address and payment information) is correct. In addition, the User is obliged to keep this information up to date in their memail "Dashboard".
Conclusion of agreement
The information presented on memail’s website regarding the services does not constitute a legally binding offer for the conclusion of an agreement. Instead, these are non-binding invitations to the User to submit a binding offer to conclude an agreement.
The User can place the services they want to conclude a contract for in the virtual shopping cart. In that shopping cart, the user can change and correct the selection at any time prior to placing a binding order by using the editing tools provided and explained in the order process.
By clicking on "Place order" (or similar), the user submits a binding offer to conclude an agreement regarding the service or services which are in their shopping cart at that time. The User will subsequently receive a confirmation of receipt from memail, in which the User is provided with the details on their order, the T&Cs, notice on right of cancellation/revocation and data protection policy in text form. This confirmation of receipt does not yet constitute a declaration of acceptance from memail, unless the confirmation of receipt is expressly linked with such a declaration.
The agreement is only deemed to have been confirmed with an express declaration of acceptance from memail, with the first act of fulfilment by memail, i.e. with the provision of the ordered service for use by the User or with the collection of the fees for the ordered services.
The text of the agreement will be communicated to the User during the order process in text form and will be stored by memail. Furthermore, the user can find information as to the details of the agreement concluded (services ordered, term, notice periods etc.) in the "Dashboard"
Right of cancellation/revocation and cancellation/revocation form
If the User is a consumer, they have a statutory right of cancellation/revocation. Details on the right of cancellation/revocation and the consequences of cancellation/revocation, as well as a template cancellation/revocation form can be found here: https://www.memail.com/privacy#cancelPolicy. The user will be advised of this option in text form during the ordering process as well as again following the placement of an order.
Download Form PDF
Selection of email addresses (preferred names) and use of email services
The User may use the email address provided to them by memail to send and receive emails, provided the email address and the use thereof is in accordance with sections 7.2 to 7.4 below. The User shall, for the duration of the agreement, be the exclusive authorized user of the email address.
The User undertakes not to register and/or use any preferred names/aliases, as part of any email addresses, which contain discriminatory, racist, sexist, offensive or defamatory elements or elements which glorify violence or otherwise violate good morals. In addition, the desired names/aliases may not violate any third-party rights (e.g. moral rights, name rights, trade mark rights). The name/alias may not contain terms which are typically used as email addresses for internet sites (e.g. support@, service@, info@ etc.). memail reserves the right to reject individual names/aliases and to request that the user chooses a different name/alias.
The User undertakes not to send any content which violates statutory provisions, good morals and/or third-party rights via email accounts provided by memail. In particular, the User is prohibited from sending content which is discriminatory, racist, sexist, offensive or defamatory or which glorifies violence. Similarly, the User is prohibited from using the email accounts provided by memail to illegally harass others.
The User is obliged not to use memail accounts to send unlawful, unsolicited marketing emails in violation of provisions under competition law and/or data protection law.
The User releases memail from all third-party claims which may be brought against memail in relation to breaches of the preceding sections. In addition, memail is entitled, in the event of breaches of sections 7.2 to 7.4 above, to block the services in question and terminate the agreement without notice.
Prices, due dates, payment and arrears
Details concerning amounts to be paid and payment conditions can be found on the respective, current offer pages or, in the case of renewals, from the price information provided. The amounts to be paid are subject to currency fluctuations; the relevant date shall be the date of booking on the offer pages or, in the case of renewals, the price information provided.
The prices stated are, for users within the European Union, gross prices including the respectively applicable value added tax. For users outside of the EU, the prices are stated exclusive of value added tax. Value added tax will be applied as per the stated country in the billing address which must correspond to the User’s actual location.
Any discounts will always initially be applied to the respective net amount and value added tax applied thereafter.
Payments shall be due on the day of provision of the ordered service to be used by the User. Payments shall be made using the payment method selected by the User. The same applies for payments to renew agreements.
If the payment of fees for newly created services (not for renewals; for renewals see section 10) via the selected payment method fails ("Payment Failure"), the order shall be deemed cancelled. The User may then resubmit the order.
If, following a successful payment, the User reverses/recalls the payment at a later date, after memail has already begun providing the service in accordance with section 9.2 ("Payment Recall"), the agreement shall remain in force and the user shall remain obliged to pay the amount due. In such an event, memail shall be entitled to block the service until such time as the amount due has been paid.
The User shall automatically be deemed to be in arrears, irrespective of any reminder sent, if the collection of the amount due, using the payment method specified by the User, fails and the amount is not paid within 14 days of the User being informed thereof. In the event of the User falling into arrears, memail is entitled to charge interest at the level of 5 percentage points above the base rate applicable at the time. If the User is not a consumer, memail is entitled to charge interest at the level of 9 percentage points above the base rate. memail reserves the right to assert claims for damages in addition.
Term, Renewal, Termination
Agreements subject to payment are concluded on an indefinite basis, for the term stated on the offer pages followed by automatic renewals for the duration in each case of the term last selected by the User. Agreements with a time limit will end automatically at the end of the term unless renewed by the User.
The relevant date for the commencement of an agreement is the date on which memail makes the ordered service available for use by the User.
Agreements concerning free of charge services will, unless otherwise agreed or agreed during the term thereof, be concluded for the term stated on the offer pages and will end automatically upon expiry thereof, without there being any need for express termination. The user can, however, transfer the account to a paid service, under the terms and conditions applicable at the time of booking this paid service.
memail is entitled to terminate an agreement for free of charge provision of email services after a period of 90 days of inactivity of the User. Inactivity means that the User has not logged in to their account using the login details. memail will notify the User of such termination by email prior to the expiry of that 90-day time period. The User will be advised of the consequences of the termination of the agreement (section 10).
Agreements concerning chargeable services with a minimum term will renew automatically for a period equal to that minimum term (but no more than one year) unless the agreement is terminated giving one month’s notice prior to expiry of the minimum term.
Notwithstanding the right of termination in text form, the User can activate and deactivate automatic renewal of the agreement in their "Dashboard". A deactivation of a previously activated automatic renewal will be deemed termination effective the end of the current contractual term where the deactivation occurs within the notice period and the automatic renewal remains deactivated beyond the respective end of the period. If deactivation occurs after expiry of the notice period, the agreement will end at the expiry of the following term, unless automatic renewal is reactivated before then.
The right of the User and of memail to terminate the agreement without notice for good cause remains unaffected. memail is, in particular, entitled to termination without notice if
the User breaches their obligations under sections 7.2 to 7.4;
the contractually relevant information is false, in violation of section 4.3;
the User falls into arrears with payments of the due amounts by more than 60 days;
memail is no longer able to provide the service in relation to the domain in question on factual or legal grounds.
The User can delete their user account in the "Dashboard". Where paid services attached to a user account are still active, these will end upon deletion of that account; the User remains obliged, however, to pay the relevant price for the previously booked services until the date on which they are contractually due to expire. Upon deletion of the account, the data stored in relation to that account will be deleted in accordance with section 10.4.
Consequences of Termination, Payment Failure or Payment Recall
In the case of an active termination of a service by the User (i.e. in text form or in the "Dashboard" area) or by memail, any data of the User stored in relation to the terminated service (emails, contact details, address books etc.) will be deleted unless a statutory obligation for continued retention thereof exists. In the event of the termination of email storage space, this means, in particular, that all emails will also be deleted. In the event of the termination of the entire email account, the deletion will include all contact details, address books etc. Terminated email addresses can be reissued by memail to third parties after a period for consideration of 14 days subsequent to the termination coming into effect.
If the agreement ends in regard to a service as a result of a renewal not occurring, i.e. without active termination on the part of the User within the meaning of section 10.1 above ("Expiry"), or
in the case of Payment Failure (section 8.5) concerning a renewal or
in the case of Payment Recall (section 8.6),
memail will initially block the User’s access to the respective service. The User will be given an opportunity, within 60 days of Expiry of the agreement or the date of Payment Failure or Payment Recall respectively ("Grace Period"), to subsequently renew the agreement or effect payment of the amount due ("Corrective Action"), and thereby retain the data stored in relation to the service (e.g. emails, address books etc.). 30 days after the start of the Grace Period, memail is entitled to charge an additional fee, the amount of which is stated in the recovery process. If in the case of Expiry the subsequent renewal or in the case of Payment Failure or Payment Recall the payment of the amount due is not effected within the Grace Period, memail will delete the data related to the expired service as set out in section 10.1, unless a statutory obligation for continued retention thereof exists. Memail is then entitled to reissue the email addresses belonging to the expired service to third parties.
In the case of a Corrective Action in the meaning of section 10.2, the term of agreement commences:
in the case of Expiry: the day following the date of expiry of the original agreement;
in case of Payment Failure (section 8.3) concerning a renewal or a Payment Recall (section 8.4): the original date of the commencement of the services, which the Payment Failure or Payment Recall related to.
Notwithstanding the aforementioned subsections of section 10, the User may request the immediate deletion of the entire service including any data stored in relation to it, whereupon the account and all data stored in it will be deleted. This shall not apply where memail has a statutory obligation to retain data. An immediate deletion of the data, subject to any aforementioned statutory duty of retention, will also be undertaken in the event of a deletion of the user account by the User.
If the ending of the agreement concerns storage space for storing emails and if the ending of the agreement with the retention of the email account results in a reduction of the storage space available to the User ("downgrade"), the User will still be able to read the stored emails for a period of 30 days, however will not be able to send or receive any new emails until they have deleted sufficient data to be within the new email storage volume. If the reduction in the volume of stored data is not effected within 30 days, memail is entitled to terminate the agreement concerning the email account.
If the User effects a termination without notice, sections 10.1 shall apply accordingly. If memail effects a termination without notice, memail will not delete the stored data of the User related to the terminated service (emails, contact details, address books etc.) for a period of 30 days or, in the event of a dispute with the User concerning the ending of the agreement, until such time as the dispute has been finally resolved, unless the User insists that memail immediately delete the data. memail shall, however, not delete the data where memail has a statutory obligation to retain data.
Liability
memail has unlimited liability towards the User in the case of intent and gross negligence, in the case of a lack of a guaranteed feature as well as in the case of injury to life, limb or health.
In the case of simple negligence, memail shall be liable, provided there has been no injury to life, limb or health, only in respect of damage or loss resulting from a not insignificant breach of a material contractual obligation. A material contractual obligation is an obligation which must be fulfilled to enable the due and proper performance of the contractual agreement, the violation of which jeopardizes the achievement of the purpose of the agreement and the observance of which the User is normally entitled to rely on. In this case, the liability is limited, however, to compensation for damage or loss which can typically be foreseen in this type of agreement.
The limitations of liability which follow from the preceding sections also apply to breaches of obligations by or to the benefit of persons, for whose actions memail bears responsibility under the relevant statutory provisions. They do not apply in cases where memail has maliciously concealed a defect or has provided a guarantee for the quality of the services, and also not to claims according to the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG).
Otherwise, liability for all other damage or loss is excluded.
The User is responsible for creating, at regular intervals, local backups of incoming and outgoing email correspondence on their own system. A liability on the part of memail for loss of data will be limited to the cost and effort required to recover data lost by memail from the User’s backups on the User’s own system.
Availability of the services; protection against viruses, spam, malware etc.
memail guarantees an average annual availability of the service of 99%. Outages for which memail is not responsible, in particular those due to technical disruptions caused by third parties or force majeure, are excluded. The same applies if memail has to restrict the services in defense against third-party interference (e.g. hacker attacks).
memail uses technological measures to protect users against viruses, trojans, spam, malware, etc. However, we would note that no protection software available on the market can provide 100% security. It therefore cannot be ruled out that even emails which have been checked by memail may contain malicious content or attachments. It is therefore the User's responsibility to check emails and attachments in particular, despite memail’s use of the protection programs.
Online dispute resolution and consumer arbitration board
memail is neither obliged under the law nor willing to participate in a dispute resolution procedure before a consumer arbitration board.
Final Provisions
The contractual language is English.
The User may only transfer the rights and obligations under this agreement to third parties after prior consent from memail in text form.
The legal relationship between the contracting partners is governed exclusively by German law with the exclusion of the UN Convention on Contracts for the International Sale of Goods. The statutory provisions on the limitation of the choice of law and on the applicability of mandatory provisions, in particular of the country in which the User, as a consumer, has their usual residence, remain unaffected.
Insofar as the User is a businessperson, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes based on the contractual relationships between memail and the User is Berlin.
Even in the event of individual points in this agreement being legally invalid, the remaining parts of the agreement shall remain binding. The invalid points shall be replaced by the relevant statutory provisions. Insofar as this would represent an unreasonable hardship for one of the contracting parties, the agreement shall be deemed invalid in full.
Scope; Right to make amendments
memail and the memail Affiliate Program ("mAPM") are services of MeMail AG, Friedrichstr. 171, 10117 Berlin (hereinafter: "memail").
For all contractual agreements concluded between memail and memail’s customer (hereinafter: "Affiliate") with due reference to these mAP Conditions of Participation ("mAPC"), the following provisions apply exclusively. Any terms of business of Affiliate which deviate herefrom do not form part of the agreement, unless memail expressly agrees in writing to their application.
memail is entitled to alter or amend these mAPC to the extent this seems necessary and provided the parties involved are not consequently disadvantaged in a manner contrary to the principles of good faith. These mAPC can also be amended as a reaction to new technical developments, changes to case law, the legal situation or other equivalent reasons. Affiliate will be notified in text form in advance of any amendments to these mAPC. Such amendments will be deemed to have been accepted if Affiliate does not expressly object to them, in text form, within six weeks of receipt of the notification. memail will expressly advise Affiliate of this consequence in the notification of the respective amendment(s). In the event of an objection being lodged, memail reserves the right to terminate the agreement. Any amendments which considerably impact the contractual balance between the parties require the express consent of Affiliate.
Participation; commercial law and tax law aspects
A participation in the mAP requires a prior online application by the memail customer. Any memail customer may make an application to participate in the mAP via the form provided for that purpose. By sending the completed application, Affiliate is making an offer to participate in the mAP. A contract is only deemed to have been concluded upon express acceptance of that offer by memail.
There is no right to participation in the mAP. memail is free to accept requests or reject them without needing to state reasons or to reject at a later date applications which had previously been preliminarily accepted.
We hereby advise that participation in the mAP constitutes a commercial activity even if Affiliate themselves has not actively founded or filed for registration of a commercial entity. It is solely the responsibility of Affiliate to ensure the commercial law and tax law conditions for participation are met, in particular to notify the German Tax Office [Finanzamt] or any other appropriate authority, where necessary, of the commencement of a commercial activity. We also advise that tax is due on any income earned via participation in the mAP and that Affiliate is responsible for ensuring that any requirements in this regard are duly observed.
Affiliate is obliged to inform memail of its tax number or VAT identification number and furnish proof accordingly. Affiliate must also inform memail as to whether they are a small business entity as per Sec. 19 UStG [German Turnover Tax Act] or not and furnish proof accordingly. The settlement of commission (section 10) will only be possible after the proof provided has been duly reviewed.
Details of participation in the memail Affiliate Program
The mAP offers registered affiliates the possibility of inviting, by means of an AffiliateID provided by memail and allocated to Affiliate or by means of advertising (e.g. HTML code, advertising banners, text links, videos and images) associated with that AffiliateID ("Advertising Materials"), third parties to use memail. Where any contractual agreements concluded between an acquired third party and memail can be attributed to such marketing activities of Affiliate, as recorded against the respective AffiliateID, ("Referral"), Affiliate can participate in these successful contract conclusions. In the event that a contract be concluded between memail and the acquired third party for paid memail services and that conclusion of contract can be attributed to a Referral by Affiliate (socalled "Sale"), the acquiring Affiliate will receive, under the requirements set out in section 10, a Referral commission depending on the type and value of the contract concluded between the third party and memail.
memail will provide Affiliate with login credentials for the "Affiliate Account Manager" ("AAM"), for the duration of the participation in the mAP. Through the AAM, Affiliate can view details of the mAP as well as their statistics, personalize their landing page with images and text, download HTML code (containing links to webpages within the memail website) and advertising banners as well as access tracking codes for coupons and offers etc.
Advertising and advertising environment as well as obligations of Affiliate
The Advertising Materials and the AffiliateID provided to Affiliate by memail may only be used on Affiliate’s own websites, for which Affiliate themselves are responsible and to which Affiliate has complete access ("Advertising Sites"), or sent via email. An inclusion of the Advertising Materials and the AffiliateID in third party websites as well as newsgroups, chat rooms, forums, guest books, messaging systems, banner networks etc., where Affiliate does not have complete access to the content they publish, is not permitted.
Affiliate has sole responsibility for the Advertising Sites and must ensure, for the term of this agreement, that the sites are operated lawfully and that no content can be accessed via those sites which violate applicable law, accepted principles of good morals and/or third party rights. In particular, the Advertising Sites have to be and remain free of the following and may not contain any links to third party websites which include:
content which is racist, sexist, seditious, discriminatory, extremist, pornographic or which glorifies violence
calls to/support for criminal acts or other rights infringements
statements which violate personality rights or which are defamatory, slanderous, libelous, harassing etc.
content which infringes third party rights (in particular violations of copyright law, trade mark law, patent law, design law etc.)
content which violates advertising law (e.g. the German Advertising of Medicines Act [Heilmittelwerbegesetz]) or the German Act Against Unfair Competition [Gesetz gegen den Unlauteren Wettbewerb].
The design of the Advertising Sites must be such that the impression is avoided that memail is responsible for them. In particular, pages from the memail website may not be wholly or partly copied. memail trade marks or logos may only be used in direct connection with the Advertising Materials and may only be displayed with reference to the mAP; any use of the trade marks and logos beyond that is not permitted.
An inclusion of the Advertising Materials and the AffiliateID in direct email communications with third parties is only permitted if and to the extent that the relevant statutory requirements are met, in particular according to the applicable advertising law, competition law and data protection law provisions. It is the sole responsibility of Affiliate to assess whether and to what extent the law requires the consent of the recipient prior to the sending of such email communications and whether the statutory requirements for such email communication are met.
Affiliate must remove Advertising Materials from the Advertising Sites without delay if memail requests this
Prohibited acts
Affiliate may not misuse the Advertising Materials, AffiliateID or the mAP nor manipulate the mAP or the associated data collection and processing. In particular, all forms of "affiliate fraud" (cookie spamming, forced clicks, affiliate hopping etc.) are prohibited.
No attempts may be made, alone or with the help of third parties, to generate sales using abusive practices.
The transmission or use of "interstitials", "parasiteware", "parasitic marketing", "shopping assistance applications", "toolbar installations and/or addons", "shopping wallets" or "deceptive popups" and/or "pop-unders", in the time between when the Advertising Materials which lead to memail are clicked on and the memail website is completely left, is prohibited. "Parasitic marketing" means, in particular, the use of applications which
inadvertently or intentionally overwrite the tracking cookies for the affiliate marketing without the visitor first having actively clicked a link within the Advertising Materials;
intercept search requests in order to divert the data traffic and thus display popups or set or overwrite tracking cookies, whereby a visitor would, under normal circumstances have arrived at the same destination using the search results displayed by the usual search engines;
set tracking cookies by displaying the memail website in iFrames, set hidden links or generate automatic popups which open the memail website;
lead to text on websites which do not completely belong to the owner of the application in order to thus carry out context-related marketing;
prevent, remove or replace advertising banners.
The use of the signs "memail", "memail.com" or "www.memail.com" including misspellings or other variations in the scope of pay-per-click campaigns as keywords in keyword marketing is not permitted.
Affiliate undertakes not to make any attempt to override, circumvent or otherwise disable any security measures employed by memail or the mAP tracking system. In addition, Affiliate undertakes not to damage the memail system by way of electronic attacks (viruses, worms, trojans, brute-force attacks, spam etc.).
Landing pages and AffiliateID
memail will give Affiliate the opportunity to set up a landing page which can be personalized by Affiliate using texts, photographs, images, videos etc. ("Landing Page Content")
As far as the design of the landing page and the Landing Page Content is concerned, sections 4.2, 4.3 and 5 apply accordingly. memail is entitled to remove Landing Page Content or to block a landing page entirely in the event that indications exists that they violate sections 4.2, 4.3 or 5 and/or in the even that third parties demand that memail remove content.
The AffiliateID provided to the user, which is at the same time part of the internet address of the landing page (e.g. memail.com/myID), may be personalized by the user. It must not infringe any third party rights (in particular no trade mark or other designation rights) and must not contain any of the content set out in section 4.2. memail is entitled to block the AffiliateID if indications exist that it infringes third party rights or contains content set out in section 4.2. The AffiliateID may not be based on system sub-directories of memail nor contain terms which are typically used as names of sub-directories for internet sites (e.g. order, signup, register etc.). memail reserves the right to reject individual AffiliateIDs and to request that the user chooses a different AffiliateID.
Violations of sections 4, 5, and 6; right of indemnity
In the event that Affiliate violates one of the obligations arising from sections 4, 5 and 6 above, this shall constitute direct grounds for immediate termination of the contractual agreement by memail. In cases of suspicion, memail is also entitled to block Affiliate’s mAP account.
Affiliate hereby indemnifies memail as well as employees and representatives of memail from all claims of and loss or damage suffered by third parties which can be attributed to a violation of the obligations arising from sections 4, 5 and 6. Moreover, Affiliate shall reimburse memail all costs which memail, its employees or representatives incur as a result of third party action taken against them. This shall also include reimbursement of costs for due and proper legal defense against such claims.
Rights of use
memail hereby grants Affiliate a non-exclusive, non-transferrable right to reproduce, distribute and publish the Advertising Materials as well as memail signs, MEMAIL and the memail logos, solely in the scope of this agreement and for the duration of the participation in the mAP. Any use beyond that, in particular use without any connection to the mAP, is generally not permitted.
Commission
In order to record ("track") the Referrals as relevant for the calculation of the commission, the Advertising Materials made available by memail and the AffiliateID must be used as described in the AAM. Otherwise, no commission can be attributed.
Affiliate will receive a commission payment from memail dependent on successful sales and based on the following requirements:
A sale with a third party is completed (conclusion of contract for paid services as per memail T&Cs), which can be attributed to the Referral by Affiliate; and
the sale as well as the related Referral have been tracked by memail via cookies; and
the acquired third party has paid in full for the service ordered, has not cancelled/revoked the declaration of conclusion of the sale within the cancellation/revocation period and has not later cancelled the sale;
A proper tracking of the Referral requires that both Affiliate and the acquired customer allow memail to store and read out cookies on their respective end devices and that the cookies set by memail are not deleted up to the time of settlement of the commission. Memail has no influence over this. In the event that Referrals are not properly tracked due to the blocking of cookies or that the cookies are deleted, there will be no right to commission.
If the acquired third party does not pay for the services ordered, cancels/revokes the agreement or cancels the payment after it has been made ("Rescission of Contract"), no commission will be due. Rescissions of Contract which occur later than eight weeks after payment by the acquired third party will have no influence on the commission becoming due.
The amount of the commission is dependent on the product and the volume of the sale. The details can be found in the AAM. The conditions which can be viewed there, as amended from time to time, apply. memail reserves the right to amend the conditions; amendments in respect of the amount of the commission will only apply to sales which occur after notification of the respective amendment. All commission amounts are inclusive of VAT to the extent VAT is due (in this regard, see also sections 10.4 to 10.6).
No commission shall be due if the Referral is made in breach of these mAPC, in particular in breach of sections 4, 5 and 6.
Settlement of the commission
The settlement of commission due will be effected solely by means of credit to Affiliate’s memail account. Affiliate may have the commission paid out or use it for ordering paid memail services. Affiliate may view their account balance at any time in the AAM.
Commission can only be paid out once a minimum balance has been reached, the amount of which is set out in the AAM. The commission will be paid out, using the payment method chosen by Affiliate, within four weeks of the respective request. Any transaction costs associated with the paying out of the commission (transfer fees, PayPal fees) shall be borne by Affiliate; memail is entitled to retain such costs when making commission payments.
Affiliate must check any commission statements and payments without delay and inform memail by email of any objections. Objections raised later than four weeks after the respective commission statement has been produced will not be considered. A request for pay out of the commission or conversion to a voucher for use in ordering paid memail services will be regarded as acceptance of the respective commission amount.
Insofar as Affiliate is based in Germany and is not a small business entity, the settlement of the commission will indicate the VAT due. If the small business entity is based in Germany and has provided proof of their small business status, no VAT will be due.
Insofar as Affiliate is based outside Germany but within the European Union and possesses a valid VAT identification number, the VAT will not be indicated ("reverse-charge procedure"), provided Affiliate has already notified memail of their VAT ID number and furnished proof thereof.
To the extent Affiliate (a) is based within the European Union and does not possess a valid VAT ID number or (b) is based within the European Union but has not notified memail of their VAT ID number or furnished proof thereof, the VAT will be indicated when settling the commission due.
If Affiliate is based outside the European Union, the VAT will not be indicated.
Liability
memail will be liable without limitation vis-a-vis Affiliate in the case of intent and gross negligence, in the event of failure to supply warranted properties or in the event of injury to life, limb or health.
In the case of simple negligence, memail shall be liable, except in cases of injury to life, limb or health, only for loss or damage arising from a not inconsiderable violation of an essential contractual obligation. Essential contractual obligations are all obligations which must be met to enable the due and proper performance of the contractual agreement, the violation of which jeopardizes the achievement of the purpose of the agreement and the observance of which Affiliate is entitled to rely on. In that case, the liability is limited, however, to compensation for damage or loss which can typically be foreseen in this type of transaction.
The limitations of liability which follow from the above paragraphs also apply in the event of breaches of obligations by or to the benefit of persons, for whose actions memail bears responsibility under the relevant statutory provisions. They do not apply in cases where memail has maliciously concealed a defect, or has provided a guarantee for the quality of the goods nor do they apply for claims according to the German Product Liability Act [Produkthaftungsgesetz].
Liability for any other loss or damage is excluded.
Term and termination, blocking
The agreement is concluded for an indefinite term and may be duly terminated by either party at any time without notice, in writing or text form (e.g. by email). The right to extraordinary termination for good cause remains unaffected. The termination shall be valid immediately upon receipt by the respective other contracting party.
In the case of the termination of the agreement, Affiliate shall immediately lose the right to use the Advertising Materials and the AffiliateID. Affiliate must immediately remove all Advertising Materials, links and other references to memail and/or the mAP from the Advertising Sites.
Any Referrals tracked to Affiliate’s AffiliateID after the termination takes effect will no longer be attributed to Affiliate and will not lead to any commission obligation. Once the termination comes into effect, any claims to commission which had arisen up to that point will cease to exist; these must have been asserted against memail prior to the termination taking effect.
Confidentiality
All information and documents, in particular concerning business processes, commercial relationships and business related, technical and financial information of the contracting parties which are marked as confidential or whose confidential nature is evident from the attendant circumstances and which are disclosed to the respective other party must be handled with strict confidentiality by the receiving party. Such information may only be passed to third parties after prior written consent of the disclosing party.
This does not apply to confidential information (a) which was demonstrably already known to the recipient prior to conclusion of the agreement or became known to the recipient via a third party after conclusion of the agreement without violation of any confidentiality agreement, statutory provision or order of a public authority; (b) which was public knowledge at the time of conclusion of the agreement, provided this was not as a result of a violation of this agreement; and (c) which must be disclosed on the basis of statutory obligations or upon the order of a court or a public authority.
This obligation will remain in force for a period of two years after termination of this agreement.
Online dispute resolution and consumer arbitration bodies
memail is neither legally obliged nor willing to participate in a dispute resolution procedure before a consumer conciliation body.
Final provisions
The language of the agreement is English.
The user may only transfer the rights and obligations under this agreement to a third party after prior consent of memail in text form.
All agreements between memail and the user will be governed by German law with the exclusion of the UN CISG. The statutory provisions regarding the limitation of the choice of law and the applicability of mandatory provisions, in particular in the country in which the user, as a consumer, has their habitual residence, remain unaffected.
Insofar as the user is a businessperson, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes based on contractual relationships between memail and the user is Berlin.
In the event of individual points being legally ineffective, the remaining parts of the agreement shall remain binding. The ineffective points shall be replaced by the relevant statutory provisions to the extent such provisions exist. To the extent this results in unreasonable hardship for one of the contracting parties, the agreement shall be deemed ineffective in its entirety.
Berlin, 27 February 2020
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