General terms of service

Article 1

Introduction

These General Terms and Conditions (hereinafter the “GTC”) are issued by Encoreaff, with a registered seat at: Room 316, 3rd Floor, 143 Wai Yip Street, Kwun Tong, Hong Kong (hereinafter the “Operator”) for its business partners (hereinafter individually the “Partner”) entering into a contractual relationship with the Operator as entrepreneurs (hereinafter the “Co-operation Agreement”).
The Partner hereby declares that all the information provided in the course of the execution and duration of the Co-operation Agreement are of true and actual nature.
The Co-operation Agreement shall be concluded by the Operator’s acceptance of the Partner’s offer. The offer shall be deemed accepted by a delivery of the Operator’s acceptance to the registration e-mail address of the Partner or any other respective address of the Partner; to avoid any doubts, the Operator shall be entitled, in any case, not to accept the Partner’s offer to conclude the Co-operation Agreement.

Article 2

Subject-matter of the Co-operation Agreement

The Co-operation Agreement consists of the Partner’s obligation to promote online the Operator’s or Operator’s business partner’s products or services by the means specified under these GTC (hereinafter the “Advertisement”) and of the Operator’s obligation to pay the Partner a commission for its services pursuant to the terms and in the amount specified in Art. 6 of these GTC and any additional arrangements made between the parties.
The Partner shall provide its performance with the use of the Operator’s application upon the Operator’s request. The Partner hereby acknowledges that the Operator merely operates said application, but cannot be held liable for any error of the application.

Article 3

Protection of Information

The Partner shall not make any information obtained from the Operator in relation to the Co-operation Agreement accessible to a third party unless such information is publicly known or otherwise generally available. The Partner acknowledges that a violation of the obligation pursuant to the preceding sentence may, and likely will, lead to the breach of the Operator’s business secrets or know-how and, consequently, cause damage to the Operator.
The Partner agrees to comply with its obligation set out in Art. 3 par. 1 of these GTC even after the termination of the Co-operation Agreement.

Article 4

Obligations of the Partner

The Partner undertakes to:
- maintain true and correct all the Partner’s representations communicated to the Operator in relation to the Co-operation Agreement;
- act honestly and in compliance with good morals.
Within the duration of the Co-operation Agreement, the Partner agrees to comply with legal regulations under all circumstances and represents that it enjoys full legal capacity. Where necessary, the Partner also represents that it holds required licenses, permits or other authorisations in accordance with the law.
The Partner is strictly prohibited to:
- violate any applicable laws, any right of any person or entity, good manners, ethical rules or the Operator’s instructions, interfere with other partners of the Operator or the Operator’s business;
- abuse any third party’s intangible rights, e.g. copyright, trademarks or name;
- damage or free-ride on the reputation of any third party;
- act in any way that may constitute unfair competition, passing-off or similar unlawful conduct;
- use any persons, means, devices or arrangements to commit fraud, or falsify any information, namely those in connection with referrals through the links or the generation of commissions;
- use automated means to increase the number of clicks or any other performance meter through the links or completion of any required information, using spyware, using stealware, cookie-stuffing and other deceptive acts or click-fraud;
- disseminate unsolicited bulk E-mail, Instant Messages, Chatroom, Newsgroup or any form of SPAM;
- use any means of misleading advertising, misleading labelling of any goods or services presented by the Partner;
- use any other practices which may be considered a breach of rights under consumers‘ protection;
- misleading, cheating or attempting to /mislead/cheat/defraud/bring into disrepute/ the Operator, its contractors or any third party in any way;
- provide incorrect or incomplete account information or hijack traffic;
  bid on the Operator’s brand name, trademarks, or any variations or misspellings thereof in paid advertising channels (e.g. Google Ads, Bing Ads, social media ads) without prior written consent;
The Partner shall in any event refrain from:
- generating and/or publishing self-created (fake) reviews or endorsements;
- generating and/or publishing reviews or endorsements from parties with whom the Partner has a material connection;
- requesting persons or parties to provide a review or an endorsement in return for compensation, discount or favour;
- removing negative reviews without giving notice of such removal;
- not identifying sponsored reviews as such;
- making any misrepresentations or publishing misleading information.
The Partner is obliged to:
- ensure that any content visible or otherwise available on portals, websites or in other electronic environment owned or operated by the Partner or under the control of the Partner that is used in relation to the Co-operation Agreement (hereinafter the ”Web Content”), shall not contain any element that is not compliant with legal regulations or good morals, these GTC, the Co-operation Agreement and the Operator’s instructions, including but not limited to elements that infringe third-party rights, e.g. trademarks, patents or copyright. In relation to the Web Content, the Partner undertakes to:
- use the personal data and contact details of the persons addressed in accordance with legal regulations and the Operator’s internal guidelines or instructions;
- perform the Promotion, as defined in Art. 5 of these GTC, to be compliant with legal regulations, good manners, ethical rules, these GTC, the Co-operation Agreement and the Operator’s internal guidelines or instructions;
- ensure that the Web Content declares that it is an advertisement;
- inform the Operator about any delivered complaint of a third person regarding possible breach of laws, namely those on advertising, without undue delay as of the reception of such complaint and, at the same time, provide the Operator with such complaint; without prejudice to the Partner’s obligation to deal with such complaint at its own risk and expense;
- to ensure, that the Web Content contains easily visible and accessible Partner’s contact details/complaint form, to enable third persons to file their complaints;
- provide the Operator with all necessary assistance to meet the purpose of the Co-operation Agreement;
- inform the Operator without undue delay in case the Partner finds out or acquires reasonable suspicion that the Partner’s activity related to the Co-operation Agreement may be considered unlawful or may be a subject to investigation or dispute;
- provide any partner-created content that can be considered as marketing promotion by common consumer to the Operator and await their approval, or incorporate their comments before he uses such content for marketing purposes.
The Partner hereby undertakes and accepts to indemnify the Operator from all and any damages, fines, or other costs, which may arise from its breach of legal regulations or these GTC.
The Partner hereby acknowledges and undertakes to ensure that the Web Content, as well as the Promotion, as defined in Art. 5 of these GTC, is not particularly:
- deceptive (particularly in case it is not expressly identified, or it is hard to recognise it, as an advertisement; in case the advertisement may be in any way deemed “hidden”, such advertisement must contain the following: “This is an advertisement” in English as well as in the official or prevailing language of the state on whose customers the advertisement aims; such bilingual warning must be placed on a visible place at the website and must be made of at least font 12;
- misleading (particularly in case any statement is false or misleading and it may evoke false ideas/opinions on the product, its content etc.);
- aggressive (particularly in case customers are being manipulated into buying offered products or services without proper judgement);
- advertising products infringing rights of third persons, e.g. intellectual property rights, rights on protection of a personhood etc.).
The Partner hereby acknowledges and undertakes to respect that advertising on some types of products is subject to stricter rules, e.g. medicine, food and dietary supplements, alcoholic beverages, tobacco products, guns and ammunition, medical interventions, financial services, trade with real estates or gambling.
If the Partner breaches any of its obligations under this article “Obligations of the Partner“ the Operator is entitled to terminate all of the Partner´s accounts as well as any agreement with the Partner.

Article 5

Promotion

The Partner shall perform marketing or similar activities in accordance with the Co-operation Agreement and the Operator’s instructions, particularly by means of:

e-mails or other communication to third parties whose consent the Partner has obtained;
banners or references on the Partner’s Web Content;
other similar manners of performing the Promotion in accordance with the Operator’s justified interests and in compliance with legal regulations, these GTC, the Co-operation Agreement and the Operator’s internal guidelines and instructions.

Article 6

Commission

The Operator shall pay a commission to the Partner for provision of its services upon the Co-operation Agreement (hereinafter the “Commission”) in the amount pursuant to this Article.
The Commission shall be payable based on the Insertion Order (hereinafter the “IO”) in which the Operator and the Partner agrees on terms of pay-outs and Commission. If there is no IO between both parties, the Commission shall be payable once a month. The pay-out of the Commission shall be processed by the Operator no later than 30 days after the end of every period.
The Commission shall be paid in each case based on an "Invoice credit note" generated in the Operator’s platform by the Operator. This "Invoice credit note" shall be available for download in the Partner's interface of the platform and shall be the main document, based on which the Partner shall issue an invoice in its books.
The Commission shall be paid either by wire transfer or through one of the payment service providers accepted by the Operator.
The Partner shall enter its bank (optionally any other payment method) account details necessary to perform the wire transfer (domestic or international) and, furthermore the invoicing details no later than on the date of commencement of the co-operation.
The invoicing details shall include: indication whether a natural or legal person is involved and, furthermore: company name/name and surname, registered office/address of residence (street, city/town, country), indication whether the Partner is a registered VAT payer and, if so, its assigned VAT number.
Should the invoicing detail not be entered correctly or with all the requested details, the pay-out cannot be processed.
All bank and non-bank fees incurred in connection with the payment of the Commission shall be paid in a share mode, where each party shall pay its own bank and other payment service provider fees. Where a share mode is not available, the fees incurred in connection with the payment of the Commission shall be borne by the Partner. The Operator shall not be held liable for any bank or non-bank fees incurred in connection with the payment of the Commission on the part of the Partner, the latter’s bank or payment service provider, or any other entity involved in the payment of the Commission within the meaning of this article.
The fee shall be paid in USD currency, unless the contracting parties agree otherwise. The Partner may contact the respective Operator’s manager to agree on different currency for fee pay-outs.
The Commission shall be processed on a monthly basis.
Payments are made on a Net-30 basis following the approval of conversions.
The minimum payout threshold is set at $500. The Operator reserves the right to modify this threshold at any time.
In case of refunds, chargebacks, cancellations, or invalid leads, the Operator reserves the right to deduct the corresponding commissions from current or future payouts.

Article 7

Other arrangements

The Partner acknowledges that the Operator shall bear no responsibility for activities or any other conduct of the Partner in relation to the Co-operation Agreement.
The Partner acknowledges that the Operator shall bear no liability for failure to provide relevant performance under the terms of the Co-operation Agreement due to technical or other reasons caused by force majeure or some other cause independent of the Operator’s will (e.g. failure to complete a task due to non-functional hyperlink, server downtime etc.).
The Operator shall not be obliged to pay the Commission to the Partner in case the Partner breaches its obligation, in particular if the Partner uses one of the prohibited methods of the Promotion, and the Partner acknowledges and agrees that its entitlement to the Commission terminates.
Prohibited methods of the Promotion include the use of materials not approved by the Operator (landing pages, banners, e-mails etc.), incentive traffic and sending unsolicited messages.
The Operator is entitled, but not obliged, to investigate any delivered complaint or suspend the Partner from being engaged in the third party’s online software solution pursuant to this Co-operation Agreement. To avoid any doubts, the Partner shall not be entitled for any compensation in case of such suspension. Without prejudice to other obligations of the Partner set forth in these GTC, the Partner shall provide the Operator with all necessary co-operation in order to investigate any delivered complaint and/or to ensure that Partner’s conduct is compliant with applicable laws, good manners and ethical rules.
The Partner shall defend, indemnify and hold harmless the Operator, its respective officers, directors and employees against any and all losses, damages, liabilities, claims, costs and expenses, including reasonable attorneys’ fees, arising out of or in connections with any breach of Partner’s representations, warranties or obligations set forth in the Co-operation Agreement.
Fraud and Traffic Quality
The Operator reserves the right to investigate any traffic, leads, or conversions generated by the Partner.
Any fraudulent, incentivized (unless explicitly allowed), low-quality, or non-compliant traffic may result in:
- Reversal of commissions
- Withholding of payments
- Immediate suspension or termination of the Partner’s account
The Operator’s decision regarding the quality and validity of traffic shall be final.

Article 8

Communication

The Operator and the Partner agree that the mutual communication shall take place primarily by electronic means (e.g. by e-mail, messenger applications, etc.) and agree that such communication shall be deemed made in a written form.
The Operator and the Partner agree to communicate with each other, provide each other with all the information necessary for proper performance of their obligations, and notify each other of any change in their identification or contact details. The Partner shall inform the Operator of all the decisive facts that are fundamental for the Operator in order to assess the suitability of continued co-operation under the Co-operation Agreement (e.g. imminent insolvency of the Partner, inability to pay debts, withdrawal of a licence etc.).
In any case, the Partner is obliged to obtain all necessary information in order to always be able to fulfil its obligations pursuant to the Co-operation Agreement. In case the Partner lacks any information (particularly about any element of the Co-operation Agreement, commissions, if the Partner uses „SmartLink“ – a form of promotion without a knowledge of particular advertiser etc.), the Partner hereby undertakes to contact the Operator as soon as possible to obtain such information. The Partner may contact the Operator also at the Operator’s affiliate manager, who was assigned to the Partner.
The Operator reserves the right to verify the Partner’s identity during the duration of any legal relation between the parties. Such verification may be performed by the means of distant communication. To verify the Partner’s identity beyond reasonable doubts, the Operator might also request personal documents verification. If the Partner does not comply with the Operator’s verification request in orderly and timely manner the Operator will be entitled to terminate the Co-operation Agreement.

Article 9

Term of co-operation

The Co-operation Agreement is being concluded for an indefinite term.
Each party shall be entitled to terminate the Co-operation Agreement without stating a reason, with an immediate effect.
If the Operator terminates the Co-operation Agreement for a cause the termination will have legal implications equivalent to withdrawal from a contract or an agreement.
Should the Operator suspect the Partner of breaching its obligations the Operator is entitled to suspend the Partner from promoting the Advertisement with no claim for compensation and without prejudice to the Operator’s right to terminate the Co-operation Agreement.
Any provision of the IO that governs i) the duration of the contractual relationship; or ii) the manner in which the contractual relationship between the Operator and the Partner is terminated is decisive in the event of a conflict with these GTC.
In cases where there is no breach of these GTC, the Operator may, at its sole discretion, provide reasonable notice prior to termination.

Article 10

Final Provisions

The rights and obligations of the parties not provided for in these GTC shall be governed by the laws of Hong Kong.
The Partner and the Operator shall resolve any and all disputes arising out of the Co-operation Agreement primarily through amicable settlement.
If not resolved amicably, any and all disputes arising out of the Co-operation Agreement shall be finally settled by the ordinary courts of {country}, unless a choice of a local jurisdiction is excluded by special provisions of the {dateOfRegistration} laws.
If any provision of these GTC proves to be or becomes invalid or unenforceable, such circumstance shall have no effect on the other provisions hereof, unless implied otherwise by the mandatory provisions of the law.
Each party undertakes, within undue delay but no later than within two (2) days from the change of its contact details (particularly an address or an e-mail address), to inform the other party of such change in writing or via e-mail. In case any of the parties breaches this obligation, any notification delivered to the lastly confirmed address shall be deemed as delivered by third (3.) day from its placement with the post office (written notification) or by third (3.) day from its dispatch (e-mail notification).
The Partner shall not be entitled to assign any receivables against the Operator to third parties.
The Operator shall be entitled to change or amend these GTC at any time; the new version of these GTC shall become effective as of the date set out by the Operator.

Article 11
Intellectual Property

All marketing materials, trademarks, brand assets, and content provided by the Operator remain the sole property of the Operator.
The Partner is granted a limited, non-exclusive, non-transferable license to use such materials solely for the purpose of the Co-operation Agreement.
Any materials created by the Partner in connection with the promotion may be used by the Operator unless otherwise agreed in writing.

These GTC are valid and effective as of {dateOfRegistration}.