Terms of use

CWINTER MEDIA Publisher Service Agreement (“Agreement”) General Business Terms and Conditions

    The parties to this Agreement hereinafter are CWINTER MEDIA ("CWINTER MEDIA") and you, the Media Partner/Publisher/Affiliate (“Publisher,” as defined hereinafter). CWINTER MEDIA facilitates media performance marketing programs by providing marketing services via the Internet. CWINTER MEDIA operates and manages a mobile agency on the Internet allowing mobile providers to advertise their goods and services, particularly by means of affiliate marketing (the "CWINTER MEDIA Agency"). CWINTER MEDIA and CWINTER MEDIA Agency, together with other CWINTER MEDIA entities, form the CWINTER MEDIA Network.
    The participants in the CWINTER MEDIA Agency are Advertisers, Publishers and CWINTER MEDIA itself.  Advertisers market and advertise their goods and services using advertising media such as banners, product data, text-links, e-mails and videos (“Ad Media” or “Ads”).  Publishers incorporate or embed the Ad Media into their homepage, website or e-mail ("Advertising Space"). For any advertising leading to a successful transaction (such as the completion of a lead form or product purchase, as per the terms of each agreement), CWINTER MEDIA shall pay to the Publisher remuneration in an amount specified as per the terms of each agreement (“Commissions”).
    To qualify as a participant in CWINTER MEDIA Agency's Marketing Service (“Service” or "Marketing Service"), a Publisher must read and agree to the terms of this Agreement, and must meet and/or comply with all of the requirements described herein. Publisher's acceptance of and agreement to the terms of this Agreement is signified by clicking the box at the end of this Agreement entitled "I have read and agree to the terms of this Agreement." Publisher may not use CWINTER MEDIA services unless and until it agrees to the terms of this Agreement. This Agreement reflects the entire agreement between Publisher and CWINTER MEDIA.

    Completion of Agreement
    1.1    To participate in the CWINTER MEDIA Agency, Publishers must register on one of the CWINTER MEDIA websites at www.CWINTER MEDIA.com.   After registration, the Publisher may apply for the Advertisers' partner programs for admission to display their Ad Media on the Publishers’ Advertising Space.
    1.2    Legal entities or private individuals over 18 years of age may register as Publishers. Additionally, each Publisher must have a bank account. CWINTER MEDIA reserves the right to verify the Publishers’ personal data. Registration with the CWINTER MEDIA Agency is not transferable.
    1.3    By completing the registration form and accepting these General Business Terms and Conditions, the Publisher submits an offer to conclude an agreement of participation in the CWINTER MEDIA Agency.
    1.4    If CWINTER MEDIA accepts the offer, it will confirm so by e-mail. CWINTER MEDIA reserves the right, in its sole discretion, to refuse an offer without citing any reason for its refusal; in such a case, the data transmitted with the registration form will be deleted as soon as practicable.
    1.5    CWINTER MEDIA Agency may be accessed by clicking the activation link in the confirmation email and entering the access data. The interface for registered members ("CWINTER MEDIA Interface") will provide the Publishers with an overview of the Advertisers' partner programs that are open at that time for their participation. Using the CWINTER MEDIA Interface, Publishers can also review and alter their personal data and information, or cancel their participation as a whole in the CWINTER MEDIA Agency.
  2. Subject of the Agreement
    2.1    CWINTER MEDIA operates and manages the CWINTER MEDIA Agency. Participants in the CWINTER MEDIA Agency are Publishers, Advertisers and CWINTER MEDIA itself. Publishers are individuals or legal entities incorporating or embedding Ad Media into their Advertising Space; Publishers can also be Agency operators with their own Publishers ("Sub-Publishers"). Advertisers are individuals or legal entities who market or advertise their goods and services via CWINTER MEDIA by means of “partner programs” using Ad Media such as banners, product data, text-links, e-mails, videos, or through search engine marketing.
    2.2    Publishers participating in the partner programs incorporate the Advertisers' Ad Media into their Advertising Space. Whenever third parties, such as end consumers, click on the Ad Media and this subsequently results in a Business Transaction (as defined in detail in the partner program and any individual program specifications) with the Advertiser, the Publisher will receive Commissions for providing the Advertising Space which has successfully connected the end consumer to the Advertiser. In this context, Business Transactions establish the entitlement to receive a Commission. A Business Transaction is generally a purchase of goods or a request for services ("Sale"), but may also include clicking on or viewing Ad Media, registering on a website, subscribing to a newsletter ("Lead"), or sending an e-mail. Business transactions that are subject to remuneration are defined in greater detail in the individual program specifications, and may include combinations of Clicks, Views, Leads and/or Sales, according to the individual program specifications.
    2.3    CWINTER MEDIA monitors and records the Business Transactions ("Tracking"); provides the Publishers with Tracking data; and credits the Commissions to the Publisher Accounts. Only Tracking by CWINTER MEDIA will determine successful Business Transactions and calculation of the resulting Commissions.
    2.4    Registration with and participation in the CWINTER MEDIA Agency are free of charge.
    2.5    Using the CWINTER MEDIA Interface, Publishers can control their advertising activities.  In particular, Publishers are able to select Ad Media and embed / incorporate them into their Advertising Space. The available applications are shown on the CWINTER MEDIA Interface.
    2.6    CWINTER MEDIA ensures that the available applications are up-to-date, complete and correct. CWINTER MEDIA is not obliged to review the Ad Media provided by the Advertisers.  Due to maintenance or other improvements, certain functions may become temporarily unavailable. In case such resulting interruption or failure has greater than a de minimis impact, CWINTER MEDIA shall remedy the situation without delay to the extent feasible and reasonable.
    2.7    CWINTER MEDIA endeavors to continuously develop and improve the CWINTER MEDIA Agency. In the course of such development, CWINTER MEDIA may enhance, expand or modify individual applications. This includes to discontinuing certain functions or features of the services, to the extent the changes do not result in a significant change of CWINTER MEDIA’s contractual duties as set forth in this Agreement. CWINTER MEDIA may alter services, in particular if such alteration is customary in the industry or if such custom changes, or to the extent legally required.
  3. Participation in Partner Programs
    3.1    Publishers shall apply for the available partner programs using the CWINTER MEDIA Interface, providing the details of their Advertising Space. In the application process, the properties of their Advertising Space will be checked against the prerequisites of the partner program. Should the Advertising Space listed in the registration process or in the application for a specific partner program not correspond to the Advertising Space actually available, CWINTER MEDIA, in its sole discretion, is entitled to block the Publisher’s account. The procedure regarding blocked accounts is set forth in Clause 5.2 of this Agreement.
    3.2    In submitting an application for a partner program, Publishers accept any additional conditions for participation which are displayed in the context of each program. These conditions are an integral part of the resulting contract.
    3.3    The Advertisers may accept or reject the Publishers’ applications at their own discretion. Publishers are not entitled to acceptance as participants; nor may they base any claims on non-admission.
    3.4    During the term of this contract, the Publisher must not circumvent CWINTER MEDIA by separately concluding contracts or entering contractual negotiations with the Advertisers of the CWINTER MEDIA Agency that cover the subject matter or services of this contract.
  4. Duties of the Publisher
    4.1 By registering with CWINTER MEDIA:
    4.1.1    The Publisher warrants that the data provided at registration is correct and complete. Should the data provided at registration change at any time after registration, the Publisher must change its profile stored on the CWINTER MEDIA Interface.
    4.1.2    Parties subject to turnover tax are under obligation to submit to CWINTER MEDIA, as part of the contact details, their taxpayer identification number issued by their local tax authority or the VAT identification number as applicable.
    4.1.3    The Publisher agrees to keep the access data selected at registration (e-mail address and password) confidential and not to communicate such data to third parties. No third party is permitted to use the access data. Publishers who have reason to believe that third parties have become aware of their access data must immediately inform CWINTER MEDIA in writing or by e-mail sent to Affiliates@CWINTER MEDIA.com.
    4.2    Displaying Advertisements on Advertising Spaces
    4.2.1    Publishers must hold the required legal rights to the Advertising Space.
    4.2.2    By applying to a partner program and incorporating the advertisement into their Advertising Space, Publishers warrant that their Advertising Space and the advertising activities as a whole:
    (a)    do not infringe any rights of third-parties (such as, without limitation, copyrights, trademarks, or personal rights).
    (b)    do not violate any other provisions of the law (in particular antitrust, competition and consumer law), do not endanger threaten the public safety, do not glorify violence, are not racist, pornographic or liable to corrupt youth, or unfit to be made generally accessible.
    4.2.3    The Publisher must comply with prohibitions against unsolicited advertisement (“Spam”) when sending e-mails containing Ad Media. Therefore, the consent of each and every recipient is to be obtained prior to sending e-mails; should CWINTER MEDIA so request, Publishers must provide written evidence that such consent has been granted.
    4.3    Advertising Activities in General
    The Publisher must not use keywords containing legally protected terms such as, in particular, trademarks of the Advertiser or of the Advertiser's competitors ("Brand Bidding"), unless the respective Advertiser has expressed his permission.
    4.4    Technical Intrusion into the CWINTER MEDIA Agency
    The Publisher hereby undertakes to refrain from attacks of any kind on the CWINTER MEDIA Agency. Attacks are, without limitation, defined as attempts made to overcome or circumvent the security mechanisms of the CWINTER MEDIA Agency or to otherwise incapacitate them; using computer programs enabling automatic data readouts; and using and/or circulating viruses, worms, Trojans, brute force attacks, spam or using other links, programs or procedures that are suited to damage the CWINTER MEDIA Agency or any of its individual participants.
    4.5    Sub-Publishers
    Publishers who are operating an Agency with Sub-Publishers themselves hereby guarantee to communicate these General Business Terms and Conditions to their Sub-Publishers and to monitor and enforce their compliance. Publishers will be held liable for misconduct or violations of the terms of this Agreement by their Sub-Publishers.
  5. Misuse
    Any form of misuse of CWINTER MEDIA Agency or related website (e.g., procuring business transactions by unfair methods or impermissible means that violate applicable law and/or these General Business Terms and Conditions) is prohibited.
    5.1       Publishers are prohibited from attempting to obtain Commissions by procuring Business Transactions themselves or through a third person using the Ad Media, tracking links and/or other technical aids provided to them in the context of the CWINTER MEDIA Agency using any one or more of the following methods:
    5.1.1    Fraudulently pretending or faking Business Transactions, such as, for example, by entering third party data without authorization, or by providing false or non-existing data when ordering goods or registering online;
    5.1.2    Using Ad Media that enables Tracking although it is displayed neither visibly nor in the manner and/or size stipulated by the Advertiser; or
    5.1.3    Brand-Bidding.
    5.2    Any form of misuse will lead to the blocking of the Publishers’ accounts immediately. In such event, Publishers may object via letter, fax or e-mail within one month, providing a statement and evidence that the chosen form of advertising has been in accordance with this Agreement. If the Publisher cannot refute the allegation of breach of this Agreement, CWINTER MEDIA will issue a notice of termination. In the event of termination, the agreement will be wound up and liquidated pursuant to the stipulations of Clause 7 of these General Business Terms and Conditions. The Publisher shall not be entitled to any remuneration.
    For each case of intentional or negligent violation of the present provisions, the Publisher hereby undertakes to pay CWINTER MEDIA liquidated damages in each case in an amount to be determined at CWINTER MEDIA's equitably exercised discretion and, in the event of dispute, in an amount to be reviewed by court. Each instance of violation shall be subject to liquidated damages in the maximum amount of the current balance of the Publisher Account.
  6. Remuneration
    6.1    The amount of Commissions earned by Publishers, and the type of business transactions entitled to the payment of Commissions, shall depend on each individual Advertiser's partner program. The Advertiser may modify the future conditions of the partner program or terminate the entire program at its discretion. Publishers are not entitled to demand that any particular program be operated, nor dictate the terms of any particular program. The conditions of the partner program can be viewed in the CWINTER MEDIA Interface. Publishers have no claim to any further compensation, such as expenses or costs, beyond Commissions
    6.2    The entitlement to payment of Commissions is created by the following conditions:
    6.2.1    a Business Transaction between a customer and an Advertiser has been effected via the Advertising Space;
    6.2.2    the Business Transaction has been Tracked by CWINTER MEDIA;
    6.2.3    the Business Transaction has been approved by the Advertiser and has been confirmed by CWINTER MEDIA; and
    6.2.4    there has been no misuse within the meaning of Clause 5 of this Agreement.
    6.3    CWINTER MEDIA will set up dedicated Publisher Accounts for the payment of Commissions. The Publisher Accounts will be settled by crediting, whereby CWINTER MEDIA will credit the respective Commissions to the Publisher Accounts without requiring an invoice. No interest will be paid on the credit balance in the Publisher Account. Once the minimum disbursement amount of EUR 25.00 has been credited to the account, a corresponding credit statement will be issued electronically at the beginning of the following month. Publishers will be informed by e-mail, and must confirm the payout. The amount will then be paid free of charge into the bank account specified by the Publisher. If the Bank account is neither a German account nor an account with a bank participating in the IBAN/BIC System, disbursements shall be made free of charge only if a minimum credit balance of EUR 200.00; is given. CWINTER MEDIA will disburse lower amounts against reimbursement of the relevant bank charges, which will be deducted from the amount to be paid.
    6.4    Publishers may request disbursement of credits lower than EUR 25.00, or, respectively EUR 200.00 to accounts with banks not participating in the IBAN/BIC System for a blanket processing fee of EUR 5.00 or, in the latter case, against reimbursement of the bank charges actually incurred if such charges are higher than EUR 5.00. The fee or bank charges will be deducted from the amount to be paid.
    6.5    CWINTER MEDIA will only pay out credits that have been confirmed by the Publisher by the end of each calendar month.  If the minimum disbursement amount has not been attained or if the credit statement is not released at the end of the month, credits will remain in the Publisher's account and be carried forward to the next month.
  7. Term of Agreement and Termination
    7.1    The agreement to participate in the CWINTER MEDIA Agency is for an indefinite term. The parties may each terminate the agreement at any time in text form (letter, fax, e-mail); additionally, the Publisher may terminate the agreement by using the "cancel membership" button in the CWINTER MEDIA Interface.
    7.2    Any business transaction that was procured via the Advertising Space at the time of termination will be processed pursuant to Clause 6 following the receipt of the termination notice. Upon termination of this agreement, any credit balance remaining will be paid to the Publisher against a processing fee of EUR 5.00. If, at the time of termination, the credit balance is EUR 5.00 or less, no funds will be disbursed.
    7.3    Once participation in the CWINTER MEDIA Agency has been terminated, the data record stored at registration will be deleted completely upon expiration of the statutory obligation to keep records in safe custody.
    7.4    If the contract has been terminated by CWINTER MEDIA for misuse pursuant to Clause 5, the liquidated damages pursuant to Clause 5.2 will be deducted from the Publisher Account.
  8. Termination of Participation by CWINTER MEDIA on Grounds of Inactivity / Statute of Limitations
    8.1    Publisher registrations with CWINTER MEDIA which have not been activated via the activation link will be automatically canceled after 60 days.  The publisher is permitted to re-register.
    8.2    If no commissions have been credited to the Publisher Account for a period of two years after registration, CWINTER MEDIA reserves the right to close the account and to cancel the registration.  The publisher is permitted to re-register.
    8.3    Any claim for unpaid Commissions is time-barred after three (3) years from the end of the respective year in which each Commission was credited to the account.
  9. Data Protection
    9.1    Collecting, processing and using such data are indispensable to the operation of CWINTER MEDIA Agency. CWINTER MEDIA collects, processes and uses personal data exclusively in compliance with the applicable statutory provisions governing the protection of data.  Protecting personal data is very important to CWINTER MEDIA. 
    9.2    CWINTER MEDIA is entitled to collect and use personal data as is necessary in order to enable participation in the CWINTER MEDIA Agency.
    9.2.1    CWINTER MEDIA will collect, process and use data requested at registration as well as data accrued in the course of participation in the Agency.
    9.2.2    CWINTER MEDIA will use the contact data to contact Publishers by e-mail in connection with their participation in the CWINTER MEDIA Agency. Receipt of so-called provider news (e-mails from the operator of the program) can be deactivated in the CWINTER MEDIA Interface. However, CWINTER MEDIA recommends that the receipt function should be activated since such provider news may contain important information regarding, for example, changes in remuneration.
    9.3    Personal data will be used and processed for purposes other than those referred to under Clause 9.2 only with express agreement of the Publisher, or to the extent allowed by statutory provision.
    9.4    Publishers can obtain information about their data by sending an e-mail to privacy@CWINTERMEDIA.com.
  10. Rights of Use
    10.1    Information and data obtained by a Publisher in the course of participation in the CWINTER MEDIA Agency may only be used in connection with the CWINTER MEDIA Agency. Forwarding such information or data to third parties or using data for any other purposes is prohibited without the express permission of CWINTER MEDIA.
    10.2    Publishers may neither modify Ad Media nor their source codes, neither visually nor technically nor with regard to content, nor are Publishers allowed to process  Ad Media and/or their source codes in any other way, unless the respective Advertiser has previously granted written consent.
    10.3    The CWINTER MEDIA Agency and its applications are protected under copyright law and other statutory provisions.
    10.4    Through this Agreement, CWINTER MEDIA grants to the Publishers the revocable, non-exclusive, non-transferable right to use the CWINTER MEDIA Agency applications as well as the data contained therein, provided that this use complies with the law and takes place exclusively within the context of participation in the CWINTER MEDIA Agency. In case of a termination of this Agreement regardless of reason, the rights of use set forth above are automatically revoked.
    10.5    Publishers are not granted any further rights of use. In particular, Publishers are not entitled to transmit the applications or the data contained therein to third parties, nor are they entitled to allow third parties to access such applications or data, nor may they modify or otherwise process such applications or data, nor incorporate them into another work, nor use them to create data bases and/or information services of their own.
  11. Indemnification in the Event of Breach of Contract
    Compliance with these provisions is essential for the operation of the CWINTER MEDIA Agency. In the event of a serious breach of contract, CWINTER MEDIA reserves the right to take further legal steps in addition to terminating the agreement to participate in the CWINTER MEDIA Agency.
    If Publishers or their Sub-Publishers violate these provisions and if third parties hold CWINTER MEDIA liable for such violation, such Publishers shall indemnify CWINTER MEDIA against all costs and expenses incurred as a result of the breach.
    Such costs include, but are not limited to, compensation of damages of third parties, legal expenses and reimbursement of further expenses.
  12. Liability and Limitation of Liability
    12.1    CWINTER MEDIA shall not be held liable for the content of websites of third-parties, nor shall it be liable for any damages or other failures resulting from any defects of the participants' software or hardware or their incompatibility with the CWINTER MEDIA system; CWINTER MEDIA shall also not be liable for damages resulting from Internet unavailability or malfunction.
    12.2    CWINTER MEDIA may be held liable only under the following circumstances, regardless of the legal grounds:
    12.3    If one of its legal representatives or executives or agents has acted with intentional or gross negligence;
    12.3.1    In the event of any culpable breach of an essential contractual duty of delayed performance or the impossibility of performance, in each case based on the respective merits. The expression "essential contractual duty" describes a duty in the abstract, the fulfillment of which is an essential pre-requisite for the due implementation of the agreement, and that is a duty on whose fulfillment the respective other party can rely as a general rule.
    12.3.2    In the event of liability pursuant to Clause 12.2, this shall be limited, for financial losses and damages to property, to the amount of the typically foreseeable loss.
    12.4    The above limitations of liability do not apply to cases of mandatory statutory liability, in particular liability under product liability law, liability for a guarantee that has been assumed, and liability for intentional or negligent injury to life, limb or health.
  13. Modification of the General Business Terms and Conditions for Publishers
    13.1    CWINTER MEDIA reserves the right to amend the provisions of this Agreement in minor scope or nature, and to do so without citing any reasons, provided such modifications do not lead to the Agreement as a whole being restructured. CWINTER MEDIA will communicate by e-mail the modified conditions at least two weeks prior to their effective date. Publishers who do not object in text form (letter, e-mail, fax) to the modification within four weeks after the receipt of the e-mail will be deemed to have accepted the respective modification. CWINTER MEDIA will specify in its email modification notification the possibility of objecting to the modification and the four-week objection deadline.
    13.2    If a Publisher objects to the new (modified) General Business Terms and Conditions, CWINTER MEDIA's request to so modify will be deemed to have been rejected. The Agreement will then continue without the proposed modification. The right of the parties to terminate their participation in the CWINTER MEDIA Agency will remain unaffected. The option of terminating that agreement will also be indicated in the email notification.
  14. Final Provisions
    14.1    The utilization of the CWINTER MEDIA Agency and its applications requires the use of special technical systems such as end user devices, software programs, transmission agencies, telecommunications and other services provided by third parties, all of which may entail further costs. CWINTER MEDIA does not provide such end user devices, software programs, communication channels, telecommunications services or other services and does not assume any liability for such costs or services provided by third parties.
    14.2    The rights and duties under the present agreement may only be transferred with the prior written consent of CWINTER MEDIA.
    14.3    The present Agreement does not establish a company, nor does it authorize either of the parties to make any legally binding declarations on behalf of both parties together, nor on behalf of the respective other party, nor does it authorize either party to place the respective other party under any obligation or represent it in any other way.
    14.4    These General Business Terms and Conditions for Publishers and the contractual relationship with the Publisher shall be governed exclusively by the laws of the State of Israel.
    14.5    The place of jurisdiction for any dispute between a Publisher and CWINTER MEDIA and/or CWINTERMEDIA Agency is the country of Belize.  Notwithstanding the foregoing, CWINTER MEDIA and/or CWINTER MEDIA Agency may, in its sole discretion, choose that the jurisdiction for resolution of any particular dispute be the State of Israel, District of Tel-Aviv.  CWINTER MEDIA and/or CWINTER MEDIA Agency will notify the Publisher or any other relevant party as soon as practicable of any decision to choose Israel as the jurisdiction governing the dispute.
    14.6    Should any individual provision of this Agreement be of no effect, as a whole or in part, the validity of the remaining provisions shall not be affected. The invalid provision will be deemed replaced by that provision that is legally effective and comes closest, in the usual understanding, to the economic intent and purpose of the invalid provision. The same applies to any unintentional omission.
    Notices - Except as provided elsewhere herein, both parties must send all notices relating to this Agreement in writing via overnight mail or facsimile: (a) to CWINTER MEDIA, 22 Maskit  Street, Herzliya Pituach, Israel, and (b) to Publisher, at the address or facsimile number listed on the Publisher Account. Notices shall be effective upon a facsimile confirmation, the notified party's actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing