General Terms and Conditions for use of the sipgate Partner Programme
1. Contract partners
The Parties to the contract are sipgate GmbH (hereinafter: “sipgate”), Gladbacher Str. 74, 40219 Düsseldorf (Düsseldorf Local Court, commercial register no. B 39841) and the customer (hereinafter also: the “sipgate partner”).
2. Participation in the sipgate partner programme
2.1. You must be a sipgate customer in order to become a sipgate partner. As such, you will initially provide sipgate with a binding offer for your inclusion in the sipgate partner programme. You will do so by ticking the checkbox “Accept general terms and conditions for partner programme” and submitting the related declaration.
2.2. The sipgate partner is obliged to truthfully indicate whether he wishes to become a sipgate partner as a private individual or within the scope of business activities, and whether he is entitled to deduct input tax.
2.3. Employees of sipgate GmbH or an affiliated company are excluded from participation in the partner programme.
2.4. The sipgate partner is prohibited from concluding commission-related agreements with the introduced customer.
3. Subject matter of the contract
3.1. As a sipgate partner, you will support sipgate in acquiring customers for specific sipgate products and services. Participation in the sipgate partner programme will not establish any obligation for the sipgate partner to act on behalf of sipgate. The sipgate partner may freely decide whether, when and to what extent he does so.
3.2. The sipgate partner may act as an introductory agent for any contracts which may be concluded via the website http://www.sipgate.co.uk/team.
sipgate is entitled at any time to vary the number and type of products for which the sipgate partner may act as an introductory agent. sipgate shall notify the sipgate partner of any such amendments.
3.3. Introductions will be exclusively handled by means of an individualized link to the sipgate team home page (currently http://www.sipgate.co.uk/team) which the sipgate partner will receive from sipgate. Introductions made via this link will be automatically assigned to the sipgate partner.
Accordingly, an introduction will only be assigned to the sipgate partner in the event that the new customer accesses the sipgate website (www.sipgate.co.uk) via the sipgate partner’s individualized link and concludes a contract.
Other forms of introduction are not regulated in this contract!
The sipgate partner may use this link in accordance with No. 4 (e.g. on his website, in newsletters).
3.4. The sipgate partner is agreed that sipgate will send him any relevant information for the sipgate partner programme and sipgate partner products by e-mail.
3.5. In concluding this contract, the sipgate partner shall not become an employee, a commercial agent, an authorized representative or a vicarious agent of sipgate and/or an affiliated company of sipgate. The sipgate partner will not be granted any power of attorney upon the conclusion of this contract.
4. Acquisition of customers
4.1. The partner may not introduce himself as a customer. Nor is the sipgate partner entitled to introduce related persons (e.g. family members, flatmates or affiliated companies) as customers.
4.2. In acquiring customers, the sipgate partner will:
a) not make any telephone calls or send faxes for advertising purposes or have others do so.
b) not use e-mails, text messages or other electronic means of communication for advertising purposes, except in case of the recipient’s express prior consent in accordance with applicable statutory requirements, and provided that the sipgate partner is able to document this consent.
c) not in any way force the solicited customer to conclude a contract or exploit any private relationships of trust, and above all not in any way put pressure on the solicited customer or restrict him in his free act of will.
d) provide objectively accurate advice and, in particular, will not use any inaccurate, incomplete or one-sided product information.
e) not use unbusinesslike techniques and methods.
f) notify the solicited customer of any applicable rights of withdrawal.
g) clearly indicate that he is not acting as an employee or vicarious agent of sipgate GmbH and/or an affiliated company of sipgate.
h) advertise sipgate products in an environment which is pornographic, political or glorifies violence etc.
4.3. In any attempted introductions, the sipgate partner shall act such that he does not impair the reputation, the competitiveness or the standing of sipgate in any way, in particular by means of value judgements or claims.
4.4. E-mails and newsletters may not be sent with sipgate as the sender. Nor may brand and product names of sipgate GmbH be used as keywords in search engine marketing.
4.5. Moreover, the sipgate partner must comply with all applicable legislation.
4.6. The sipgate partner is not entitled to collect debts on behalf of sipgate or to represent sipgate in legal transactions. He is not authorized to submit or receive declarations for sipgate GmbH.
5. Individual sipgate link, advertising
5.1. sipgate shall provide the sipgate partner with the above-mentioned individual link to the sipgate team homepage.
In addition, the sipgate partner will be offered graphic advertising (advertising banners) in his partner programme account.
5.2. sipgate documents may not be used for purposes other than for acquisition of customers in accordance with these terms and conditions, and nor may the business name, the brands, logos or other business designations of sipgate and/or an affiliated company be used for other purposes.
5.3. In case of termination of the sipgate partner contract, the sipgate partner must immediately destroy/delete any sipgate documents still in his possession or hand these over to sipgate upon demand.
6. sipgate web interface
As a sipgate customer, the sipgate partner has access to a password-protected web interface (http://www.live.sipgate.co.uk/team/conditions).
Via this web interface, using sipgate’s technical and operational infrastructure the customer may access an anonymised list of the contracts subject to commission for which he has served as an introductory agent.
sipgate reserves the right to amend the functionality of the sipgate partner programme at any time.
7. Introduction of a customer
7.1. The conclusion of a sipgate contract as stipulated in No. 3.2, as a result of an “introduction” made by the sipgate partner, is a precondition for commission.
An "introduction" may only be made by means of the link provided to the sipgate partner, i.e. an “introduction” in this sense will only have occurred if
a new sipgate customer has accessed sipgate’s website (www.sipgate.co.uk) via the sipgate partner’s link (in this case, a cookie documenting this event will be set in the new customer’s browser) and
the new customer is registered during the period for which the above-mentioned cookie continues to document this event and
one or more of the sipgate contracts listed under No. 3.2 is concluded through this registration.
For this type of introduction, the cookie must thus still be held in the new customer’s browser at the time of registration! If several of these cookies are held in the new customer’s browser, from various partners, the commission will be determined on the basis of the newest such cookie!
7.2. The new customer’s registration will not, in itself, give rise to a claim for commission. The basis of the claim for commission resulting from an introduction in accordance with No. 7.1 is regulated in No. 8-0.
8.1. For acquired customers (cf. Item 8.2), the sipgate partner shall receive recurrent introductory agent commission in the amount of 5 % (five percent) of the basic fees incurred by the customer plus any call charges (i.e. any amounts deducted from a positive customer balance, not all top-ups).
This commission will be calculated on the basis of the regular monthly net call charges (amounts deducted from the customer’s balance) which are deducted from the customer’s positive balance within the scope of the contract for which the sipgate partner has served as an introductory agent. Any credit which sipgate grants to the customer will not be included in this calculation basis.
A precondition for this commission is that charges are deducted from the positive customer balance of the introduced customer. In case of a retrospective decrease in the customer’s positive balance (e.g. due to a returned direct debit) and a corresponding reduction in the possibility of deducting charges from a positive customer balance, this will also retrospectively reduce the basis for calculation of the sipgate partner’s commission.
8.2. A contract concluded through the services of an introductory agent in the sense of Item 8.1 shall apply where
a) the introduced customer has been registered pursuant to Item 7.1, within the scope of the distribution channels authorized pursuant to Item 4.4 and
b) a contract within the meaning of No. 3.2 is concluded between sipgate and the introduced customer, following the introduction, and
c) the introduced customer does not exercise any statutory right of withdrawal or cancellation which he may hold.
An introduction is excluded if the introduced customer has already been an existing customer of sipgate in the last six months prior to his (re-)registration.
8.3. A violation of these general terms and conditions – in particular, the provisions in No.s 4 and 5 – shall lead to the loss of the claim for commission. This will not affect the prosecution of claims for any more extensive damage.
8.4. Insofar as commission is paid through other commission programmes of sipgate or an affiliated company of sipgate for the conclusion of a contract for which the partner has successfully acted as an introductory agent, no additional bonus will be paid within the scope of the sipgate partner programme.
8.5. In the event of commission having been effectively credited or paid out to which the sipgate partner is not, or no longer, entitled under this Item 8, such commission must be repaid. sipgate reserves the right to offset repayment amounts against any claims for commission.
8.6. A claim for commission within the meaning of No. 8.1 shall only arise for sipgate contracts concluded through the services of an introductory agent which are concluded by a sipgate partner during the term of a sipgate partner contract.
8.7. sipgate reserves the right to amend at any time and with future effect the commission payable for the introduction of a customer and to newly determine this commission at its discretion. Any existing commission claims will not be affected by such changes. The sipgate partner will be notified of any amendments by e-mail in advance.
9. Credit note, value-added tax
9.1. At the end of each month, sipgate GmbH shall issue a credit note on the sipgate customer account of the sipgate partner, indicating the commission earned by this sipgate partner. The customer consents to the issuance of a credit note. sipgate reserves the right to make this credit note available to the partner in the form of a PDF file, for downloading or by e-mail.
9.2. Insofar as the sipgate partner is entitled to deduct input tax under the German Value-Added Tax Act (Umsatzsteuergesetz, UStG), in addition to the agreed commission he shall receive the statutory amount of value-added tax applicable for this commission. This will only apply from the moment as of which the sipgate partner has clearly documented his business status to sipgate; this documentation may only be provided through notification of the value-added tax ID no. which has been assigned to the partner.
The sipgate partner is obliged to immediately notify sipgate GmbH of any loss of its authorization to deduct input tax and to maintain corresponding documentation. In the event that the sipgate partner is no longer subject to value-added tax, the portion which sipgate GmbH might have claimed as input tax if the sipgate partner had been subject to value-added tax will be deducted (even retrospectively) from his commission. The sipgate partner shall owe this excess commission payment and will also be liable in this regard for interest on arrears and for any extra charges for delays.
10. Due date and payment of commission/end of obligation to pay commission
10.1. Commission will be provisionally credited to the sipgate customer account of the sipgate partner automatically, at the end of each month.
10.2. The claim for commission shall arise, with definitive effect, six calendar weeks after the call charges have been deducted from the customer’s positive balance.
10.3. At the request of the sipgate partner (by clicking on the Payment button on the web interface of the sipgate partner), the amount will be transferred to a UK bank account indicated by the customer, for which the sipgate partner must provide valid IBAN and BIC account numbers. sipgate reserves the right also to offer different payment methods (e.g. PayPal, crediting to credit cards).
The sipgate partner may only request payment subject to a minimum balance of £ 50. sipgate reserves the right to specify a period of up to 6 weeks for submission of a request, i.e. a payment request may only be submitted after a period of 6 weeks has elapsed since the expiry of the month for which the commission is payable.
The payment claim shall become due and payable 5 working days following submission of the payment request.
10.4. The sipgate partner acknowledges that commission cannot be verified, or may only be verified to a very limited extent, since sipgate only hands over/is only permitted to hand over data of introduced customers in the cases stipulated by law, and introduced customers may delete the underlying data for this commission calculation at any time.
The sipgate partner therefore waives verification of the value of this commission, since sipgate will provide the sipgate partner with any information which is necessary and possible regarding introduced customers in anonymised form on his web interface.
The customer may delete, with final effect, the underlying telephone data for the commission calculation at any time upon expiry of the relevant billing period. Once the telephone bill has been produced for the introduced customer, his data may no longer be accessed.
10.5. sipgate’s obligation to pay commission for an introduced customer shall end upon expiry of the 3rd year following this customer’s initial registration. Accordingly, upon expiry of the 3rd year following an introduction (initial registration), the sipgate partner will not be entitled to receive any further commission for this introduction.
11. Data protection
11.1. The sipgate partner may only collect, process and use customers’ personal data in accordance with applicable legislation and these terms and conditions.
11.2. Before collecting the necessary data, the sipgate partner will inform the customer that
a) this is on behalf of sipgate, while notifying the customer of his identity and also that of sipgate GmbH,
b) the customer’s data are being collected for the conclusion of a contract for sipgate partner products and
c) he will transmit these data to sipgate via his password-protected, internet-based sipgate partner access functionality.
11.3. The sipgate partner undertakes to maintain confidentiality regarding the data which become known to him through his participation in the sipgate partner programme and only to use these data within the scope of this activity. The obligation to maintain confidentiality regarding these data will remain applicable even upon termination of this activity.
11.4. Within the scope of his responsibility, the sipgate partner undertakes to implement and comply with technical and organizational measures in accordance with § 9 of the German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) and the annex to this Act, insofar as the envisaged goal of protection is proportionate to the volume of work required.
11.5. Should affected persons assert claims against sipgate due to violation of data protection provisions, the sipgate partner will assume the burden of proof for showing that he is not responsible for the damage, insofar as the sipgate partner has collected, processed and/or used the affected person’s personal data within the scope of his participation in the sipgate partner programme.
11.6. The sipgate partner undertakes to comply with relevant data protection provisions for protection of personal data, in particular the German Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) and the German Telecommunications Act (Telekommunikationsgesetz, TKG).
12. Liability and indemnity
12.1. The contract partners’ liability will be determined in accordance with applicable statutory provisions.
12.2. Each Party is itself responsible for any tax amounts which it is required to remit/pay.
12.3. Should third parties assert claims against sipgate, the sipgate partner shall
indemnify sipgate against these third-party claims,
offer sipgate the necessary support for its legal defence (which sipgate is entitled, but not obliged, to mount) and
bear the necessary costs for an external legal defence for sipgate, insofar as the asserted claims are based upon alleged acts or omissions of the sipgate partner (e.g. violation of these terms and conditions, particularly Items 4, 5 or 11).
A precondition for the sipgate partner’s liability is that sipgate immediately notifies the sipgate partner of any asserted claims, does not make any concessions or acknowledgements or equivalent declarations and enables the sipgate partner, at his expense, to conduct any judicial and extra-judicial proceedings concerning these claims. This indemnity obligation is excluded insofar as contributory fault is attributable to sipgate.
13. Term and termination
13.1. The sipgate partner contract is concluded for an indefinite duration and may be unilaterally terminated by either Party at any time, with one day’s notice. The right of termination without notice for good cause shall remain unaffected. Termination will not affect any commission claims already earned.
13.2. In particular, sipgate may terminate the sipgate partner contract for good cause in the event of the sipgate partner disposing of his business, or material portions thereof, if a new shareholder acquires more than one-quarter of the shares in the sipgate partner, if an existing shareholder increases his previously smaller shareholding to more than one-quarter of the shares or if a competitor of sipgate becomes an affiliated company of the sipgate partner. sipgate will already have a right of termination upon conclusion of the contracts under the law of obligations which establish its ground for termination. This Item 13.2 does not apply for private individuals acting as sipgate Partners.
13.3. In addition to termination, at its discretion sipgate may expressly exclude the sipgate partner from future contracts concluded within the scope of a sipgate partner programme or similar programmes. sipgate shall exclude the sipgate partner from such programmes if the sipgate partner violates these general terms and conditions or otherwise violates another obligation, so that future cooperation inevitably appears unreasonable for sipgate.
13.4. The sipgate partner shall provide notice of termination by submitting an electronic declaration to sipgate. sipgate shall send an e-mail to the sipgate partner’s e-mail address by way of confirmation of its receipt of this notice of termination.
13.5. sipgate shall likewise provide notice of termination by e-mail.
14.1. Insofar as the sipgate partner is required to provide sipgate with declarations under this contract, such declarations must be sent to the e-mail address which sipgate GmbH notifies to the sipgate partner for communication purposes.
14.2. Any declarations which sipgate makes to the sipgate partner must be sent to the sipgate partner’s e-mail address.
14.3. The sipgate partner is obliged to ensure that he may be contacted via the sipgate partner’s e-mail address. If this is no longer the case, he will notify sipgate of this immediately, while providing a new e-mail address.
15. Miscellaneous provisions
15.1. German law shall apply, to the exclusion of private international law and the UN Convention on the Sale of Goods.
15.2. These terms and conditions constitute the entire subject matter of the contract, with the exception of sipgate’s general terms and conditions for use of its services and the links to sipgate’s website. No collateral agreements have been concluded. These terms and conditions may only be amended in writing. This also applies for any provision cancelling this requirement of written form.
15.3. sipgate may amend or supplement this sipgate partner contract at any time. Amendments or supplements shall become valid four weeks after the sipgate partner has received the relevant notification, unless sipgate has received notice of an objection by this time. sipgate will separately inform the sipgate partner of the consequences of a failure to provide notice of an objection in its notification of such amendment or supplement.
15.4. If a provision of this contract is invalid or impracticable, this will not affect the remainder of the provisions. The Parties undertake to replace the invalid or impracticable provision with a valid and practicable provision which comes as close as possible to the economic purpose of the replaced provision. The same will apply in case of a loophole.
sipgate GmbH, Düsseldorf, October 20, 2014