Welcome to 2Performant.com – a marketplace for performance marketing programs dedicated to e-commerce industry – an affiliate network with a new approach (the “Platform“, as defined in Section 2 below).
In order to use the Platform, You have to agree on this entire document, which constitutes the legal binding agreement between our Users (You) and Us (“2Performant“, as defined in Section 1 below) and governs all relationships between them (the “ToS” as defined in Section 2 below). As We’re updating this document from time to time, if You have a 2Performant account, We will inform You by email, each time We do so.
We’re sure You’ve seen this kind of documents hundreds of times before, but please read it carefully before creating an account and use Our Platform.
We’re very serious about respecting all applicable laws AND about respecting this legal agreement in all aspects.
Before going deep to legal details, here are the principles We believe in:
- Everyone is here to learn and make money in a respectful manner. We are kindly asking You to keep all discussions and correspondence on a civilised level but taking into account cultural and personality differences;
- We do believe that any problem may be solved through communication and a problem solving, business oriented attitude, as long as there is no bad faith involved. We are here to work together for the long run and We wish to build long-lasting, win-win-win relationships, intended to bring value added to each partner;
- Online marketing is constantly evolving: new traffic sources and new advertising formats arise every day and consumers’ shopping decisions are influenced in ever so different manners. If a partner does anything that You do not understand, it does not necessarily mean that there is something wrong or that You are being fooled in any way. Always ask before drawing any conclusions and always try to see things from Your business partners’ perspective;
- We are as transparent as We can be, subject to privacy and confidentiality restrictions herein. We are sharing best practices and aggregate or anonymized figures/data, with the aim of ensuring that everyone has a fair chance to rapidly evolve, thus bringing value added to the ecosystem;
- We are a marketplace, not an advertising agency nor an advertising network. We bring You together and provide technical means for You to work together, but We do not guarantee instant sales but We are doing anything within our power to attract better and motivated people to work and get more sales together.
That being said, if You breach the applicable Law and/or this document and You do not remedy it – should it be subject to remediation as per provisions herein – We will enforce our rights and our honest partners’ without second thoughts.
This agreement governs legal relationships between 2Performant Network SA, a Romanian based company bearing sole identification number (CUI) RO 26405652, registered with Romanian Trade Register under number J40/493/18.01.2010 with its headquarters in Str.Vulturilor, nr. 98A, Spatiul Comercial Et.1 – Unitatea Est, Unitatea Sud, Unitatea Nord, Sector 3, Bucuresti 030857, bank account IBAN no. RO29 INGB 0000 9999 0460 8471 opened at ING Office Unirii, Bucharest, phone no. +40 372 979 295, email address contact@2Performant.com (“2Performant“, “We“, “Us“), as owner, provider and operator of the Platform, and Platform’s Users, meaning:
Affiliates – legal or natural persons aged over 18 years, holding duly registered Affiliate Accounts in the Platform, who act as professionals, willing to send online traffic to be tracked by 2Performant and paid by Advertisers, on a ‘Cost per Action’
Advertisers– legal entities who own or have the right to run eCommerce websites, holding a duly registered Advertiser Account in the Platform, who are acting as professionals and who are willing to benefit from Promotion of their Websites and Products by Affiliates, against Commissions to be paid on a ‘Cost per Action’ model.
Some of Sections herein below shall apply exclusively to Advertisers (Sections 7.1., 7.2. and 8.3.), others shall exclusively apply to Affiliates (Sections 7.3. and 8.2.), while the remaining Sections shall apply to all Users.
Unless otherwise expressly defined herein, the following terms in capital letters shall bear the following meanings:
Action means any Sale or Lead, as such are defined below; Action may be also called Conversion within 2Performant platform.
Advertising Tool means banners (of any size), text-links, text-ads, e-mails, videos as made available through Affiliate Programs, or quick links generated by Affiliates through the Platform, in view of being used by Affiliates for Products’ (and/or Advertisers Websites) Promotion;
Affiliate Program means the performance program initiated by the Advertiser through the Platform, in view of its Website and Products being Promoted by Affiliates that have been previously accepted by the Advertiser; any Affiliate Program shall specify at least the following: (i) available Product Feeds (if the case) and Advertising Tools; (ii) amount of applicable Commission; (iii) applicable Cookie Life, (iv) applicable Approval Time;
Affiliate Commission means the performance-related payment amount to which Affiliates are entitled for each and all completed Actions, as per Section 6 below; Approval Time means the maximum time-frame available to Advertiser for rejecting or accepting any Commissions generated from completed Actions. Approval Time depends on each Affiliate Program and it is indicated therein;
Client means any third party who clicks any Advertising Tool displayed on the Affiliate’s Traffic Source and is, thus, directed to the relevant Advertiser’s Website;
Cookie Life means the time-frame established in each Affiliate Program, during which the Action completed by Clients that have been directed to the Advertiser Website, by the Affiliate, are tracked by 2Performant Platform and establish entitlement to receive Commission from the Advertiser. The Cookie Life varies from a Affiliate Program to another and it restarts at every “click” made by a Client on an Advertising Tool displayed through a Traffic Source of an Affiliate within a certain Affiliate Program;
Lead means an Action (as specified by the Affiliate Program) taking place on the Advertiser Website within the applicable Cookie Life, following the referral of a Client to the Advertiser Website, through an Advertising Tool displayed by the Affiliate (i.e. form submission, survey completion, client registration, newsletter subscription, as specified by the Advertiser);
Product Feed is a file made up of a list of Products and attributes of those Products organised so that each Product can be displayed, advertised or compared in a unique way. A Product Feed typically contains product images, title, Product identifier, marketing copy, Product attributes and prices. Product Feeds supply the content that is presented on many kinds of e-commerce and Affiliates’ websites such as search engines, price comparison websites, and other similar aggregators of e-commerce information; Advertisers can (but are not obliged to) upload .csv Product Feeds in the Platform and Affiliates can create, download and use .csv and .xml Affiliate Product Feeds, based on one or more Product Feeds provided by Advertisers;
Platform means www.2performant.com together with its sub domains (if any, from time to time), together with the software application and technology comprised therein, that are owned, operated and managed by 2Performant and, subject to the terms and conditions herein, allows Advertisers to run affiliate marketing campaigns (i.e. Affiliate Programs, as defined herein) to Promote their Websites and Products through Affiliates;
Products mean any and all goods and/or services owned/provided by any Advertiser, available for being purchased by Clients on Advertisers Websites;
Sale means any purchase of Products performed by any Client via the Advertiser Website within the applicable Cookie Life, after such Client having been directed to the Advertiser Website through an Advertising Tool displayed by the Affiliate;
Service Package means one of the service packages contemplated in link www.2performant.com/pricing/ to be selected by any and each Advertiser when applying for registration of its Account with the Platform;
ToS means this agreement together with all its appendices, as they may be amended from time to time, governing the legal relationship between 2Performant and both the Advertisers, on one hand, and the Affiliates, on the other hand;
Traffic Source means any website or other source of online traffic that is used by Affiliates to promote Advertisers Websites by means of Advertising Tools (“Promoting”, or “Promotion”). It could be a website owned or rightfully operated by an Affiliate, a third party placement where the Affiliate incorporates commercials including but not limited to Google AdWords, Facebook ads, other advertising network, a commercial newsletter sent to a list of email accounts that have been previously gathered for this purpose subject to their owners’ agreement, a social network, communities, forums, etc;
2Performant Commission means the performance-related amount to which 2Performant is entitled for each and all completed Actions, as per Section 6 below; Affiliate Commission and 2Performant Commission generated from an Action shall be deemed as the “Commission”;
User (You) means Affiliates and/or Advertisers, either individually or collectively, depending on the context.
(Advertiser) Website means the website that is owned or otherwise rightfully operated by any Advertiser and is registered with the Platform during registration of Advertiser Account and where Actions take place;
Without prejudice to any additional requirements herein (including those related to payment of Deposit), for the purpose of being registered with the Platform and become party to these ToS, any User must register for an account in the Platform (the “Account“) and provide all the required information during such registration process.
Any User shall provide to 2Performant full name, email, a unique identification number (VAT code or, as the case may be, personal identification number) and the country (or countries) he’s active in. In addition: (i) Affiliates shall provide details regarding the Traffic Sources they use for Promotion; and (ii) Advertisers shall provide details regarding the Website intended for Promotion, it’s category, all countries where Advertiser sells Products, currency used for cashing in the Products’ prices, Commissions amount, the Service Package, payment and invoicing details. Advertiser is also required to make an initial down payment (the Deposit, as detailed in Section 7.1.) amounting 5 times the Monthly Subscription corresponding to the chosen Service Package but not less than €991.
By checking the box in the Platform, stating that the User has unconditionally read, understood and agreed with these ToS, and then by clicking the confirmation link (received in the email address You provided to Us in the first signup step), You submit to Us an offer to conclude this binding agreement to govern Your participation in the Platform (the “User Offer“).
If 2Performant accepts User Offer, this will be confirmed by e-mail to the account indicated by the User during registration process (“Offer Acceptance“). This will include details of the relevant Offer Acceptance: username, email, IP, as well as a pdf version of the ToS, as accepted by the User and entered into between 2Performant and the User (“Executed ToS“). The date the Offer Acceptance reaches User’s email account shall be deemed as execution date of these ToS by the respective User, unless the User starts using the Platform earlier (in each case, the “Execution Date“) . The ToS shall commence on the Execution Date and shall remain in full force and effect until terminated according to Section 12.
Subject to User’s written request submitted to 2Performant at any time during the term of these ToS, 2Performant shall provide a pdf copy of the Executed ToS.
For the avoidance of any doubt, 2Performant reserves the right to refuse any User Offer without citing any reasons for its refusal. In such case, the User’s data transmitted to 2Performant during registration process will be deleted without delay.
4. WORKING TOGETHER
All Affiliates and Advertisers operating, active and duly registered Accounts with the Platform may work together subject to the terms and conditions herein. Affiliate Programs’ details are available in the Platform and Affiliates may express their intention to work together with one or more Advertisers by applying to their respective Programs.
Advertiser may freely approve or refuse any application submitted by any Affiliate with respect to any Program run by the respective Advertiser in the Platform, by citing explanation for its refusal. Advertiser may also, at any time, amend the conditions of Affiliate Program or may terminate it, with effect for the future, only after having notified his Affiliates in advance with the number of days equal to the Affiliate Program’s Cookie Life-time, but not more than 30 days. Affiliates have no claim to any further compensation (expenses, costs etc) for such modification. In any case, We make recommendation that Affiliates acceptance and refusal time-frames be as short as practicably possible. Affiliates may start Promoting an Advertiser and then discontinue doing so, without providing any explanation. Moreover he can leave any Affiliate Program without any explanation.
Having once approved Affiliate’s participation into a Affiliate Program, the Advertiser may remove (temporarily exclude) or ban (permanently exclude) it, at any time, from the Program, by providing explanation in this respect and without having to pay any Commissions for the exclusion period. A prior notice of applicable Cookie Life time but not more than 30 days will be issued electronically by the Platform and sent to Affiliate, whenever an Advertiser removes or bans the latter from its Programs. Once the removal term has expired, another notification will be automatically issued electronically by the Platform to the Affiliate, who will be also informed by e-mail.
Affiliate shall only use the Advertising Tools made available by the Advertiser through the Platform and shall Promote the Advertiser in a respectful ethical and business oriented manner. If he wishes to use other tools, he shall priory ask permission from the Advertiser and will be able to use other tools only subject to Advertiser’s prior agreement.
Affiliates have to be transparent with regard to their Traffic Sources, to both 2Performant and the Advertisers that are running the Programs to which the Affiliates participate. However if, by exception, sharing information regarding Traffic Sources subsequently results in sharing sensitive competitive details or know how of Affiliates businesses, it is, however, mandatory to disclose exact and complete Traffic Sources with 2Performant, subject to the latter’s request. Following such disclosure, 2Performant may agree or refuse, at its sole discretion, to confirm to Advertiser that the Affiliate is/not in compliance with these ToS and the Law.
Should Affiliate not disclose details of its Traffic Source to Advertisers (even though such information might have been shared with 2Performant) the Advertiser, in its sole discretion, may remove (temporarily deactivate) or ban (permanently deactivate/exclude) those Affiliates from their Programs, without having to pay any Commissions.
Any time Affiliates are removed or ban from the Affiliate Programs, as well if Affiliates are, otherwise, in breach of this ToS and/or the Law, 2Performant may immediately suspend Affiliates Accounts with the Platform, without payment of corresponding Affiliate Commissions.
Through the Platform, 2Performant provides technical means for the Advertisers creating and managing Affiliate Programs and ensures tracking of all traffic sent by Affiliates to Advertisers Websites and of all Actions generated by Clients redirected from the Traffic Sources used by Affiliates through Advertising Tools; the Platform also provide technical means for calculation, billing, collection and payment of Commissions.
Tracking done by 2Performant is based on 2 main instruments:
- Tracking Code to be integrated by the Advertisers on their Action confirmation pages or “thank you” pages. Advertisers must keep the Tracking Code correctly integrated and operational during their entire collaboration with 2Performant, based on these ToS; and
- Cookies to be added in Clients’ browsers when they click any Advertising Tool.
Having once duly registered its Account with the Platform and prior to initiating any Affiliate Program, the Advertiser shall integrate into his Website (in the “Actions’ confirmation” page, or “Thank you” page), the Tracking Code provided by the 2Performant Platform (in section dedicated to Affiliate Program’s details). Tracking Code is designed to monitor the Clients directed by Affiliates to the Advertisers Websites and to record the Actions completed by these Clients within the applicable Cookie Life (“Tracking“).
Tracking Code provides the Platform information regarding the price of the Action completed by the Client as well as the order’s details (as provided/set by the Advertiser); based on such information the Platform ensures calculation of the corresponding Affiliate Commission. 2Performant will verify the Tracking Code’s integration accuracy by every new Advertiser registered with the Platform and may carry out periodic verification to detect any inaccuracies, with the aim of ensuring Tracking of Clients and Actions on the Advertisers Websites to be completed correctly.If Tracking Code is removed, disabled, out of work or it is in any other way malfunctioning (“Malfunctions“), 2Performant is entitled to immediately suspend (temporarily deactivate) the relevant Advertiser Account from the Platform, without notification, and the Advertiser shall pay penalties to 2Performant, for the entire duration of such Malfunctions. The duration of Malfunctions (“Malfunctions Duration“) shall be deemed as the time starting with the date the last Commission was generated by the relevant Affiliate Program (or, as the case may be, the time when the Affiliate Program started, if there are no Commissions generated) until the Malfunctions have been fixed. Penalties owed by the Advertiser to 2Performant shall be determined as follows2:
- if the period starting with the beginning of the Affiliate Program until Malfunctions have been observed is more than 6 months, penalties will be calculated based on the average amount of Commissions Accepted by the respective Affiliate Programs during 3 months prior to Malfunctions’ establishment, pro rata with the Malfunctions’ Duration;
- if the period starting with the beginning of the Affiliate Program until Malfunctions have been observed is less than 6 months, or if there was no Commission generated by the respective Affiliate Program, penalties will be calculated based on the average amount of Commissions Accepted by the same category of Programs run by the Platform during 3 months prior to the Malfunctions’ establishment, pro rata with the Malfunctions’ Duration;
- if the period starting with the beginning of the Affiliate Program until Malfunctions have been observed is less than 6 months, or if there was no Commission accepted by the respective Affiliate Program, and the Platform did not run any Program of the same category with the relevant Affiliate Program, penalties will be calculated based on the average amount of Commissions Accepted by any and all other Programs that are still running by the Platform, during 3 months prior to the Malfunctions’ establishment, pro rata with the Malfunctions’ Duration.
For the avoidance of any doubt, any commissions generated in 2Performant Affiliate Master Account (meaning the account used for testing the Tracking Code) shall not be taken into account.
Penalties shall be immediately deducted by 2Performant from Advertiser Deposit3 and they will be used to pay Affiliate Commissions for the entire Malfunctions Duration to all Affiliates participating to the relevant Affiliate Program. The amount of Affiliate Commission owed to any such Affiliate will be calculated based on the number of clicks directed by Affiliate to the relevant Advertiser’s Website during Malfunctions Duration, multiplied by the click’s value. The click’s value is established by dividing the penalties’ amount (as deducted from the Advertiser’s Deposit) divided by the entire number of clicks directed to the said Advertiser’s Website by all Affiliates during the entire Malfunctions Duration.
The Platform generates unique Advertising Tools’ codes that shall be displayed by Affiliates for each Advertising Tool that is used, thus ensuring a proper Tracking of the Actions completed by the Clients that have been directed by the Affiliates within each Affiliate Program.
Information gathered with respect to online traffic (either directed or received) and completed Actions are made available by the Platform, both in details (one by one, in case of Actions) as well as in aggregate form, in statistics section.
2Performant statistics are always available to the User, in its Account, where he may always check the number of clicks directed/received, the Advertising Tools that have been used as well as the generated Commissions and their status. These statistics are automatically generated by the Platform; they are not available to public but only to the User and 2Performant. 2Performant is always entitled to use such data, either in full or in part, in anonymized and/or aggregate form, for marketing or statistics purposes.
For the avoidance of any doubt, only the Tracking performed by 2Performant is relevant for the identification of the completed Actions and calculation of accrued owed Commissions.
2Performant uses only “Last Click Attribution” model – meaning that each Cookie placed by a click of a Client on an Advertising Tool overwrites any potential previous Cookies placed through other Traffic Sources – so the last Affiliate who redirected the Client before an Action (during applicable Cookie Life) is entitled to earn the corresponding Affiliate Commission.
In order for an Affiliate being entitled to use an Advertising Tool he has to participate in the relevant Affiliate Program. The Advertising Tools placed by Affiliates that are not active (any more) in the Affiliate Program – either following (temporary) suspension of their Accounts, Advertisers refusal to accept Affiliates participation in their Programs, termination of these ToS, etc – do not redirect clicks to the Advertisers Websites and do not add Cookies. Should this be the case, irrespective if Clients complete any Actions for the Advertisers the Platform does not register them for the purpose of Commissions and neither 2Performant nor the Advertisers have any obligations to pay any Commissions.
Cookies are vastly used by online services to improve and customize Clients browsing experience and deliver better advertising. If however a Client disables cookies in a browser, it is outside the Tracking area of 2Performant’s Platform and the Actions cannot be Tracked and recorded in the Platform, 2Performant being released from any liability in relation thereto, by both Advertisers and Affiliates.
Subject to the terms and conditions herein, 2Performant shall use reasonable efforts to ensure maintenance and operability of the Platform at all time.
When a Client performs an Action on the Advertiser’s Website, a notification will be issued electronically by the Platform and send to the Affiliate who generated such Action and to the respective Advertiser; they will be also informed by e-mail regarding the value of the generated Commission.
Procedure set forth below regarding Commissions’ approval, modification or rejection shall accordingly apply.
Subject to fulfilment of the following cumulative conditions, 2Performant and the Affiliate are entitled to be remunerated by Advertiser, as per these ToS:
- an Action has been completed by a Client on the Advertiser Website;
- Advertiser received full price for the respective Sale, in case the Action consists in a Sale or, as the case may be Advertiser received confirmation of Action, if the Action consists in a Lead;
- there are no errors identified by the Advertiser in relation to the relevant Action and no Products (involved in the relevant Sale, should this be the case) have been returned to Advertiser and there are no doubled item and no refund made to the Client;
- Affiliate fully complied with the relevant Affiliate Programs terms (including interdiction to use fraudulent methods or Artificial Traffic).
In case of completed Actions whose value was later modified (for whatever reason, e.g. insufficient Product stock, Products return, etc) a proportional corresponding amendment of corresponding Affiliate Commission will be done.
Any Affiliate Commission may fall under the following categories:
- Pending: is the first status that a generated Commission has. When an Affiliate Commission has the ‘Pending’ status it means that an Action has been completed as per these ToS and the cumulative fulfilment of conditions set forth above is checked by the Advertiser;
- Rejected: it means that the Commission is not eligible for payment it is not owed and it will not be paid by Advertiser. A Commission may be rejected if any of the conditions above is not met;
- Approved4: it means that, as a result of all cumulative conditions above under this Section 6 being met, or the Approval Time elapsed without the Commission having been rejected by Advertiser; in case the Approval Time is not respected by Advertiser, Commissions are automatically Approved by the Platform and shall be deducted and paid out of the Advertiser’s Deposit;
- Payable: it means that the Commission is eligible for payment to the Affiliate, automatically after being approved in a pre-paid Affiliate Program or after having been paid by the Advertiser for a post-paid Affiliate Program; Commission is eligible for payment and it will be paid subject to the Affiliate request, as per these ToS;
Except if otherwise expressly provided herein, once having been Approved, a Commission cannot be diminished, Rejected or otherwise modified by the Advertiser.
Commissions are being calculated as percentage of the value of Sales generated for the Advertiser or fixed amount for Leads or Sales, as per these ToS. Such percentage is applied to the net amount (excluding VAT or any other taxes) and final amount (after having applied all discounts offered by the Advertiser over the list prices) of Products bought by the directed Clients. Transportation charges applied for delivery of Products purchased by Clients on Advertisers Websites are NOT generating Commissions.
Advertisers may: (i) decrease Commissions applicable to a certain Program, subject to priory notifying all Affiliates participating into such Affiliate Program; a prior notice of applicable Cookie Life time but not more than 30 days shall be sent in this respect; or (ii) increase the Commission. In all situations, the Platform notifies by email all Affiliates who are active in the relevant Affiliate Program.
Customised conditions (for ex, preferred Commissions, either higher or lower than the standard available for the respective Affiliate Program, as well as different Cookie Life-time) may be offered to Affiliates.
Any Advertiser may grant bonuses to Affiliates, in any amount he may consider appropriate. Bonuses are automatically Approved and shall be immediately disbursed from the available balance of the Deposit to the Affiliate Commissions Payable account.
Approved4 Affiliate Commissions are time-barred after three (3) years from the date when each such commission was credited to the Affiliate Account. Should the 3 year term expire without 2Performant having received any payment request from the entitled Affiliate, 2Performant shall have no obligation either to pay the so accrued commissions to Affiliates, or to reimburse them to Advertisers.
The only available payment model in the Platform is prepaid5, at a “cost per action” (CPA) model.
Advertisers will decide upon the amount of Commissions applicable to any and each Affiliate Program they run and shall display them in the Platform. 2Performant shall transparently allocate the Affiliate Commissions and 2Performant Commissions, out of such Commissions, according to these ToS.
At the registration of his Account with the Platform, each Advertiser shall select a Service Package and shall perform payment of Deposit5. Deposit is prepaid and amounts 5 times the Monthly Subscription corresponding to the chosen Service Package, but in any case, not less than EUR 99. For the avoidance of any doubt, this EUR 99 threshold will cease to apply to any further payments required to credit the Deposit, according to these ToS.
A confirmation email, stating the selected Service Package, as well as the corresponding Monthly Subscription shall be sent to the Advertiser, promptly after registration of his Account with the Platform.
Monthly Subscription corresponding to the respective Service Package (as per Appendix 1), Commissions and, as the case may be, penalties and/or any amounts due as result of Advertiser’s liability according to these ToS will be deducted by 2Performant and, as the case may be, they will be paid from Deposit.
No Affiliate Program may be initiated or activated in the Platform until the Deposit is paid in full by the Advertiser to 2Performant.
Advertisers shall always keep Deposit balance in sufficient amount to allow deduction and payment of Monthly Subscription and Commissions, according to the terms and conditions herein.
2Performant shall start notifying the Advertiser, by sending notifications to Advertiser, whenever Deposit balance goes below the estimated level for the Affiliate Program to run for the next 14 days, and by sending notifications to both Advertiser and the enrolled Affiliates in the Affiliate Program whenever Deposit balance goes below the estimated level for the Affiliate Program to run for the next 5 days.
If the Deposit balance becomes €0 or lower, 2Performant will notify the Advertiser and the enrolled Affiliates and it is entitled to suspend (temporarily deactivate) the Affiliate Program from the Platform – meaning that:
- no Advertising Tools will be functional
- no traffic will be received in the Advertiser Website
- the Commissions will be generated6 if the Actions are completed during the Affiliate Program’s Cookie Life and, if the case may be, an Affiliate Program’s Cookie Life has not yet passed since the Advertiser announced the closure of the Affiliate Program with a prior notice
2Performant will re-activate the Affiliate Program only after the Deposit has been credited with the required amount. Advertisers may credit their Deposit account with the Platform either manually or by setting up automatic payment (in such latter case, the amounts crediting the Deposit as well as Deposit threshold have to be also established by Advertiser).
Advertisers may choose to upgrade / downgrade their Service Packages to any service package available at that time in the Platform, as per Appendix 1 www.2performant.com/pricing. Change of Service Package will be automatically done, in no more than 24 hours from the Advertiser’s request, however, subject to payment of all amounts due by the Advertiser as per these ToS.
A confirmation email indicating the new Service Package, as well as the corresponding Monthly Subscription shall be sent by 2Performant to the Advertiser, before the new Service Package comes into effect.
Monthly Subscription for the ongoing month shall be calculated pro rata as follows: (i) the Monthly Subscription corresponding to the previous Service Package shall be paid pro rata with the number of days from the relevant month, until the Service Package is upgraded/downgraded; and (ii) the Monthly Subscription corresponding to the new Service Package shall be paid pro rata with the number of days remained out of the relevant month, following the change of the service package.
In case the Service Package is changed, Advertiser must ensure he fits in the new applicable limits regarding Affiliates, clicks, banners, etc, available under the new package. Once an Action is completed by a Client, the corresponding owed Commission shall be automatically made ‘unavailable’ and accordingly deducted from the balance of the Advertiser’s Deposit. If Commission is:
- Approved (as per these ToS), the Affiliate Commission immediately becomes Payable (except in case of post paid contracts);
- Rejected by Advertiser within the Approval Time, the Advertiser’s Deposit account shall be reimbursed with the corresponding Commission.
Once the Advertiser pays the Deposit as well as whenever he performs any payments to 2Performant, based on these ToS, 2Performant shall issue corresponding invoice.
Invoices will be sent to Advertiser in electronic format, by email, to his address indicated in the Advertiser Account. Invoices will be available for download in the Platform “Billing Section”.
If the Advertiser is registered as VAT taxable person in a state member of European Community, it is registered with VAT Information Exchange System (V.I.E.S.) and provides 2Performant with the accurate VAT registration number, the invoiced amounts will not bear VAT. If the Advertiser is registered in one of Europeans Union country and it is not registered in VIES, the invoices issued by 2Performant will bear the applicable VAT from the Advertisers country.
Payment of Deposit as well as any payments due by Advertisers to 2Performant are deemed as duly performed when fully cashed in by 2Performant.
On the termination of these ToS with a Advertiser, 2Performant will return all amounts available in the Advertiser’s Account, after having processed all Commissions owed according to these ToS and provided that there are no penalties, liabilities or claims against the Advertiser.
Subject to the terms and conditions below, the Approved Affiliate Commission shall be disbursed to the entitled Affiliate within 7 days from receiving valid payment request.
Once the Approved Affiliate Commissions reaches minimum disbursement amount of EUR 25 or RON 1007 – no 2Performant bonuses included, and provided that: (i) the Affiliate’s payment profile in his Account has been fully and accurately filled in; and (ii) the Affiliate re-confirms its adherence to the ToS in force at that time, by checking the button Submit in the Platform, Affiliates are entitled to require payment of such commissions, by submitting a payment request to 2Performant.
Notwithstanding anything to the contrary, if the minimum disbursement amount has not been attained, it will remain in the Approved Affiliate Commission Account and carried forward until the minimum disbursement amount is reached. No interest will be paid or due on the credit balance of Affiliate Commissions that have not been yet disbursed to Affiliate.
Having once received a valid payment request from an Affiliate, a notification will be issued electronically by the Platform and sent to the Affiliate who will be also informed by e-mail. Notification will include information regarding the exact amount to be paid to Affiliate after all due (withholding) taxes having been deducted, according to these ToS. Same notification procedure applies when the requested payment is effectively performed. 2Performant will make the payment within 7 days from receiving a valid payment request and always provided that EUR 25 or RON 1007 minimum disbursement amount has been reached for the Affiliates – no 2Performant bonuses included.
The amount owed to Affiliate, as diminished with all due charges (related to bank transfer and payment method and/or payment service) will be paid into his bank account specified in the payment profile of the Affiliate Account. However, 2Performant, at its sole discretion, may choose to undertake and pay, either in full or in part, any charges attached to any payments owed to Affiliates during certain marketing campaigns or promotions. In case of Affiliates legal entities, payment is subject to the relevant invoice having been previously uploaded to the Platform by the Affiliate.
In case of Affiliates, natural persons, 2Performant shall withhold 16% from owed Affiliate Commissions (as such amount might be amended by applicable Law).
In case of Romanian Affiliates, additional requirements may apply, according to legislation. In case of Affiliates, legal persons, Commissions owed shall be paid in full without any deduction in terms of taxes, against invoices to be priory issued by Affiliate (subject to VAT or not, depending on the applicable local legislation) and uploaded to the Platform in this respect.
Affiliates not residing in Romanian remain fully and exclusively liable for any and all charges and/or taxes applicable under their local legislation in relation to the incomes received or accrued under these ToS.
2Performant, in its sole discretion, may perform marketing campaigns, offer bonuses or vouchers for both Affiliates and Advertisers. Any and all payments under these ToS will be referred to in €, with a detailed view in RON, for Romanian Affiliate Programs. Any other currencies used in relation to Actions or other operations (including corresponding Commissions) will be converted in €, by using an exchange rate-European Central Bank, any National Bank exchange rate or a exchange rate established by 2Performant based on official national exchange rates available for all Users and published by the Platform.
2Performant may freely choose to use any money transfer service to facilitate payments between participants to the Platform.
8. DUTIES/ WARRANTIES/ INDEMNIFICATIONS
8.1. Any and all Users undertake, represent and warrant to each other and to 2Performant that:
- information provided to 2Performant and to each other (including but not limited to the one concerning identity, personal data and websites) is, and shall continuously be during the entire term of its collaboration with 2Performant, accurate, complete and reflecting reality, in all respects; and
- they shall keep confidential all company or business information and knowledge of the other parties to these ToS that is made accessible in connection with these ToS and that has been indicated as confidential or that are recognizable as business or company secrets in other circumstances, even after the termination of the ToS. In case of doubt, all information must be considered confidential; and
- they shall comply with and shall observe in all respects any and all applicable laws and regulations (including those concerning advertising operation, unsolicited advertising “SPAM“, as required under Romanian Law 365 (r1)/2002 regarding electronic commerce, transposing Directive of the European Parliament and of the Council 2000/31/CE); in particular, in accordance with the applicable laws, the consent of any recipient shall be obtained by the Affiliate prior to sending any emails containing or referring to Promotional Tools; subject to 2Performant prior request, the Affiliate shall submit to 2Performant evidence in writing of such recipients’ consent. Affiliates are fully responsible for all actions or lack thereof which result or are related in any way from breaking any law (including but not limited to “SPAM”) or cause any prejudice; and
- they duly hold (and shall continuously be holding during their entire collaboration with 2Performant) all ownership and, as the case may be, intellectual property rights (including but not limited to copyright, licenses, rights of use etc.) of their websites, Traffic Sources as well as for any and all information, texts, images, sounds, products, and other elements used during their collaboration with 2Performant, that are or may be protected by copyright and/or other intellectual property rights and no rights of any third parties (e.g. copyrights, trademarks) are violated; and
- they shall not defame or otherwise slander or libel the other Users or 2Performant in any way and shall refrain from any acts and/or facts that may contradicts, conflicts, damage or, in any way, negatively impact the Platform, its security, operation or functionalities and/or 2Performant’s rights and/or interests.
8.2. Any and all Affiliates undertake, represent and warrants to 2Performant and to Advertisers that:
- they shall not generate, allow, determine or in any way contribute to generation of Artificial Traffic in relation to their activity in the Platform and/or collaboration with 2Performant. For the purpose of these ToS Artificial Traffic includes: (i) procuring any Sales, Leads or Commissions otherwise that in strict compliance with all the applicable legislation and these ToS; (ii) abusively using any Advertising Tools, or other features available in the Platform, or using any of them otherwise than in strict compliance with these ToS (e.g. cookie injection, pretending or faking any Sales, for example, by entering fake third party’s data or without authorisation, using Advertising Tools that enables tracking although it is not displayed,pop-ups, pop-unders etc); and
- they shall notify all visitors of its websites where Traffic Sources, Promotional Tools or Advertising Space are incorporated or placed, that they are being Tracked through cookies and shall comply and observe any and all applicable laws and regulations in relation thereto (including Directives of the European Parliament and of the Council 2009/136/CE, 2002/22/CE and 2002/58/CE, as transposed in Romanian legislation by Government Emergency Ordinance 13/2012 and Law 506/2004, as further amended).
- they shall not bid in Google AdWords or any other search advertising platfom on keywords containing the Advertisers’ brands (or variations) or the Advertisers’ domain names (or variations).
8.3. Any and all Advertisers undertake, represent and warrants to 2Performant and to Affiliates that:
- they hold (and shall continuously be holding, during their entire collaboration with 2Performant) all authorisations, approvals and permits required by law to conduct their business (including ecommerce run through their Websites registered with the Platform), they hold (and shall continuously be holding, during their entire collaboration with 2Performant) full title to provide and sell their Products, and neither Affiliates nor 2Performant may be held liable in relation thereto; acknowledge and expressly release 2Performant and the Affiliates from any liability in connection with or in relation to any Products; and
- they are fully liable for the Advertising Tools available in the Platform. 2Performant cannot be held liable in relation thereto and, in particular, 2Performant is not obliged and cannot be held responsible for reviewing, verifying, guaranteeing or assuming any responsibility for the correctness, accuracy, completeness, compliance with the applicable legislation or fitness to the Affiliate’s business of the Advertising Tools provided by the Advertisers. Shall keep the Advertising Tools updated during its entire collaboration with 2Performant; and
- they acknowledge and agree that 2Performant will collect and remit charges and taxes for any completed Sale, where it is legally required to do so. Where 2Performant does not collect and remit such charges and taxes (should it be thus required by law), the Advertiser may have the legal obligation to pay such taxes and charges and if such an obligation arises the Advertiser will be solely responsible for the timely payment of such tax and charges and any interest or penalties; and
- they shall keep the Tracking Code duly installed during their entire collaboration with 2Performant; and
- they shall provide grounded and detailed reasons to 2Performant, when they (always in strict compliance with these ToS) Reject Commissions; and
- they shall not promote their own Websites through their Affiliate links with the purpose of overwriting Clients cookies; and
- they shall increase the Approval Time only after having notified their Affiliates in advance with the number of days equal to the Program’s Cookie Life time, but not more than 30 days in advance; and
- for the entire term of this agreement and for a further period of one year after termination of its collaboration with 2Performant, the Advertiser shall not – either directly or indirectly – enter into any contractual relationship with any of the Affiliates that have participated in the Affiliate Programs ran within the Platform. In the event of violation of the aforementioned obligation, the Advertiser shall pay a minimum contractual penalty to 2Performant for each violation equal to €1,000, without prejudice to any other remedies available to 2Performant.
9. PLATFORM RIGHT OF USE
Subject to the terms and conditions of these ToS, 2Performant grants the Users, during their collaboration with 2Performant based on these ToS, a nonexclusive, nontransferable, non-sub licensable and revocable right and license, to use the applications and data, made available through the Platform by 2Performant. For the avoidance of any doubts, no further rights are granted to the User, who is particularly not authorized to:
- forward or make said applications or data, partially or in their entirety, available to third parties nor to facilitate their access thereto,
- modify or otherwise alter said applications or data partially or in their entirety,
- use said applications or data to create a database of their own and/or an information service.
For the avoidance of any doubt, 2Performant shall be and remain the sole owner of all right, title and interest in and to the Platform (including, without limitation, all intellectual rights therein).
By its duly registration with the Platform and acceptance of these ToS, and for the duration thereof, the Advertiser grants 2Performant the non-exclusive, transferable, irrevocable and worldwide right to use and transfer (to the Affiliates) the Advertising Tools made available by the Advertiser, in particular to allow Affiliates to display them on their Traffic Sources.
10. DATA PROTECTION
You need to register Your Account with the Platform in order to get access to Our technologies and services in the Platform. By registering with the Platform, You expressly consent in writing to collection, usage, storage, recording and processing (“Process“, “Processing“) of Your personal data provided to Us (including personal identification number), by 2Performant, for the purposes stated herein.
Personal data generally include individual information by which You as a natural person are or can be identified (e.g. Your name, personal identification number, address, telephone number, email address, date of birth).
You can see from Our online registration form which personal data, in detail, we Process. We do not Process any further personal data other than contemplated herein, or voluntarily provided by Yourself. We may also Process information on the device you are using to enter our User interface pages such as Your browser or the IP address of Your device.
Refusal to provide Your personal data to 2Performant, as required under these ToS, make Your access to Our services (in the Platform) impossible and We cannot perform any payments to which You may be entitled according to these ToS. However, You can simply visit www.2performant.com without providing information on Yourself and without participating in the Platform.
2Performant is registeredwith Romanian National Supervisory Authority for Personal Data Processing under no 17513. As required by Law no. 677/2001 on the Protection of Persons concerning the Processing of Personal Data and Free Circulation of Such Data, as amended, Law no. 506/2004 on the Processing of Personal Data and the protection of privacy in the electronic communications sector, as amended, and Convention on the protection of persons against automatic processing of personal data, adopted in Strasbourg, on 28.01.1981, as ratified by Law no. 682/2001, as amended, Processing of personal data You provide to 2Performant is done in good faith, exclusively for the purposes herein contemplated and in safe conditions, as well as strictly in compliance with applicable legislation above.
We use the personal data You provided to Us only for advertising and marketing purposes and in view of operating the Platform; this includes (where applicable): informing Users on 2Performant’s/other Users’ activity in the Platform, monitoring Users’ activity in the Platform as well as Platform’s operation, producing statistics or summaries relating to the use of Our services (to enable 2Performant to improve, promote or market Our services), responding to Users’ enquiries, market research, performing Our obligations under the ToS (including payments).
By registering with the Platform You give Your express consent that We may use Your personal data to send newsletters on our offers or promotions, to Your email address, to contact You by telephone, or post for feedback relating to the service, including any ways in which it might be improved both for the Platform and for the individual User.
Furthermore, Advertisers and Affiliates may get into contact with each other via the Platform within a Affiliate Program. Your personal data provided to 2Performant are available only to 2Performant’s employees, contractors, subcontractors, representatives and, as the case may be, 2Performant’s collaborators with duties related to Platform’s operation and only on a “need to know” basis.
For the avoidance of any doubt, Your personal data provided to Us may be communicated to other Users, only in accordance to these ToS and within the limits required for the Platform’s operation.
Your personal data might be transferred outside Romania only in strict compliance with Romanian applicable legislation. We do not transmit data to other third parties unless you have given your consent thereto.
According to Romanian regulations regarding personal data protection You have (not limited to the below mentioned):
- the right to access Your personal data and be provided by Us – free of charge, once a year – with confirmation if Your personal data are being Processed by Us or not;
- the right to intervene on Your personal data and demand – free of charge – rectification, update, blocking, erasing, or, as the case may be, data anonymization, provided that Your personal data were not Processed in compliance with applicable legislation (depending on the intervention, it could make impossible Your access to Our services in the Platform);
- the right to oppose to Processing of Your personal data, based on grounded justified reasons related to your specific position, and demand cessation of Your personal data Processing (this makes impossible Your access to Our services in the Platform). You may always oppose to Processing of Your personal data for direct marketing purposes, without citing any reason and free of charge.
You may exercise your above mentioned legal rights by contacting Us via email, to contact@2Performant.com, via mail to Str.Vulturilor, nr. 98A, Spatiul Comercial Et.1 – Unitatea Est, Unitatea Sud, Unitatea Nord, Sector 3, Bucuresti, Romania, Postal Code 030857 and sending a request in writing, duly signed and dated.
You are also allowed to make recourse to legal courts as well as not to be subject to an individual decision. If and as far as You require, obtain, receive access to personal data of any third parties, as a result of or in connection to Your participation in the Platform, You hereby agree and undertake to collect and/or, as the case may be, use, store, record, process said personal data in strict compliance with Romanian applicable legislation and only for and to the extend needed to exercise your rights and perform Your obligations in accordance with these ToS.
We take all technical and organisational security measures required under Romanian Law to protect Your personal data from loss, unauthorised disclosure or other forms of misuse. Please be aware that should You get in touch with us via email confidentiality of information therein may not be ensured. Third persons may have access to contents of emails.
You are fully liable and will fully indemnify and hold harmless 2Performant, the other Users and/or any third parties against any and all claims, damages, losses of profit or business opportunities, liabilities, actions, judgements, costs and expenses that any of them may incur as a result of or in connection with the use, operation, access of Your Account with the Platform, Your username and/or password.
Without prejudice to Section 10 above, Users shall keep confidential all company or business information and knowledge of the other parties to these ToS that is made accessible in connection with these ToS and that has been indicated as confidential or that are recognisable as business or company secrets in other circumstances, even after the termination of the ToS and for a period of two years thereafter. In case of doubt, all information must be considered confidential.
Users confirm that in order to enable 2Performant to improve promote or market the service provided through the Platform, 2Performant may produce statistics or summaries relating to the use of the service and may use any general information regarding Users for marketing and advertising purposes, to the extent such information do not include sensitive competitive details or know how of Affiliates or Advertisers.
12. TERM AND TERMINATION
These ToS shall commence, in respect to a User, on the relevant Execution Date and will remain in effect until terminated pursuant to this Section.
The initial duration of these ToS is twelve months. These ToS will be automatically extended by subsequent twelve month-periods (“ToS Duration“), unless either party expressly notifies the other, in writing, at least 30 days prior to ToS’ Duration expiration, about its intention to terminate it. Notification herein shall apply unless the agreement expressly provides otherwise.
Notwithstanding anything to the contrary, 2Performant, in its sole discretion, may suspend (including in relation to an Affiliate Program) or unilaterally terminate Your Account (and, consequently, unilaterally terminate these ToS), if 2Performant suspects or has reasonable reason to believe and/or if a third party (including another User) otherwise claims and brings evidence in this respect that You have violated applicable law or breached any term of these ToS (including any conditions provided by other Users, that have been automatically agreed upon, when applying for participation in Advertisers Programs). For the avoidance of any doubt, You are rightfully in delay starting with the date of Your default, no notice of default being required in this respect. Except if otherwise expressly provided in these ToS, 2Performant shall inform the User by serving unilateral suspension/termination notice, of its Account’s suspension or these ToS’ termination. Account suspension and, as the case may be, ToS termination become effective (de jure) without any Courts intervention and without any additional procedures.
Upon termination of these ToS, for any reasons, User’s Account and access to the Platform will be immediately terminated and You shall cease using, and either return to 2Performant, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the Confidential Information in Your possession. 2Performant will calculate pending claims against the User (as per Section 13 below) and, if applicable, it will return any remaining balance left from the Deposit, in case of Advertisers, respectively, from the accrued unpaid Approved Affiliate Commissions, in case of Affiliates.Once participation in the Platform has been terminated, the User’s PERSONAL data stored at registration will be deleted completely upon expiry of 2Performant statutory obligation to keep records in safe custody.
13.1. 2Performant liability. Limitation of liability
2Performant does not confirm, approve, or certify any information fact or opinion provided on or through the Platform, nor does it endorse, is responsible or guarantee the accuracy, completeness, efficacy, merchantability, fitness for a particular purpose, non-infringement or correct sequencing of such information. All content provided on or through the Platform is provided “AS IS”. Use of such information by Users is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness by each such Users.
In no event shall 2Performant or any of its successors or assigns, be liable for any (a) use of or inability to use the Platform or 2Performant services, (b) personal injury, property damage, or losses of any kind, resulting from the User’s access to and/or use of the Platform or 2Performant’s services, (c) unauthorised access to or use of any and all personal information and/or financial information stored in the Platform, (d) interruption or cessation of transmission to or from the Platform, Platform’s (or services) suspension, discontinuity, inoperability or inaccessibility (e) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the Platform or 2Performant’s services, and none of 2Performant, its successors or assigns, bear any liability for any indirect, incidental, special, or consequential damages whatsoever arising out of, or in connection with these ToS, whether or not 2Performant has been advised of the possibility of any such damages.
Notwithstanding anything to the contrary herein, the maximum aggregate liability of 2Performant for any and all costs, losses and/or damages (“Losses”) under or in relation to these ToS, whether in contract, in tort or otherwise, shall not exceed: (i) in case of liability against Advertisers, the sum between the Monthly Subscription paid by the Advertiser to 2Performant and 2Performant Commissions paid by Advertiser to 2Performant, for the month immediately preceding the date upon which such Losses accrue, and (ii) in case of liability against Affiliates, the total amounts due and paid by 2Performant to the entitled Affiliate under these ToS, for the month immediately preceding the date upon which the Losses accure. Any claim arising out of or relating to these ToS must be brought within 30 days from Loss’ discovery but no later than 3 months from their occurrence. Should any jurisdictions do not allow the exclusion or limitation of certain categories of damages, User expressly agree that, in such cases, the liability of 2Performant shall be limited to the fullest extent permitted by such jurisdiction.
13.2. User Liability
Compliance with provisions of these ToS is essential for the Platform operation.
You will indemnify and hold 2Performant harmless against any and all claims, damages, losses of profit or business opportunities, liabilities, actions, judgements, costs and expenses it may incur as a result of or in connection with: (i) any act or omission by You in connection with Your use of 2Performant services available in the Platform; (ii) Your use of 2Performant services other than as expressly allowed by these ToS; (iii) Your breach of these ToS (including but not limited to Your representations and warranties herein).
Such costs include, in particular, the compensation of damages of third parties, reimbursement of further expenses, all reasonable attorneys’ fees and, in general, all costs incurred as a result of any action, suit, proceeding or claim brought against 2Performant.
14. GOVERNING LAW
Romanian Law will govern these ToS and any action, suit, proceeding, or claim arising out of or related to these ToS shall be brought exclusively in courts of law located in Bucharest Romania.
Should any provision hereof be or become, in whole or in part, illegal or in conflict with any law, this shall not affect the validity of the remaining clauses hereof and this ToS.
These ToS are provided in both Romanian and English language. The waiver or failure by 2Performant to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. The rights and remedies of 2Performant set forth in these ToS are cumulative and are in addition to any rights or remedies 2Performant may otherwise have at law.
For the avoidance of any doubt, by using the Platform You, expressly: (i) agree with these ToS and their further amendments (as they will be published in the Platform) and (ii) agree that all agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any and all legal requirement including that such communications be in writing.
Note 1. For information and details regarding post paid contracts, please contact Us on firstname.lastname@example.org.
Note 2. For post paid payment model, the penalties are calculated based on the specific terms and conditions negotiated by Parties.
Note 3. This is not applicable to post paid contracts.
Note 4. In case of post paid contracts, no Commissions become eligible for payment and due to the Affiliates unless they are in Payable stage. This is an intermediary stage when Commissions’ full amount has been cashed in by 2Performant and may be paid forward to the entitled Affiliate.
Note 5. For post paid payment model, please contact Us on email@example.com.
Note 6. The commissions registered in the case in which the Affiliate Program is suspended (temporarily deactivate) from the Platform because the Deposit balance is €0 or lower will be paid to the Affiliates only after the Advertisers pay these commissions to 2Performant.
Note 7. When evaluating the minimum disbursement amount we take into account the withdrawal currency – EUR or RON.