General Terms and Conditions for Mpex Mobile

General

Mpex Mobile is an affiliate service for promoters of non AV and AV services to consumers. The services being provided are third-party products, third-party content and third-party services, and the signatory of this agreement will select which products and services to promote directly.
It is pointed out that the graphic links and banner ads in Mpex Mobile are third-party products, third-party content and, as the case may be, third-party services. The operator of Mpex Mobile does not carry out an examination and control in this regard, with the exception of conducting due diligence to ensure the services are lawfully being provided by the owners of the service. By way of precaution, the operator of Mpex Mobile distances himself expressly from all content of the linked and advertised pages on this homepage and does not adopt this content. This statement shall also apply to all links to external homepages placed and advertised here.
The responsible providers of services and content for whose products, content and services Mpex Mobile solely is a technical advertising platform in order to enable service providers to promote this content are neither supervised by the operator of Mpex Mobile nor are they under the control of Mpex Mobile . The operator of Mpex Mobile shall not be responsible for the offers, placements and texts of those providers.
The providers of content and services (content providers) are themselves responsible for content, products and services for which they place advertising material for further use by the service provider in the service provider tool and they bear all liability risks in this connection.
Mpex Mobile solely acts as an intermediary between content owners and promoters of content services
Mpex Mobile is exclusively operated on the basis of these Terms and Conditions. Possible conditions to the contrary, extensions or limitations on part of the service provider are herewith contradicted expressly; they are not an integral part of the contract.

Legal

The operator of Mpex Mobile offers the possibility for service providers to promote WAP/web pages, products and services on a commission basis. Upon completing & sending the application form, the service provider agrees to these General Terms and Conditions.
The operator of Mpex Mobile reserves the right to exclude the promoter from participating in the affiliate programme. This shall apply especially in cases of breaches of contracts and/or breaches of law, for example if, on a page of the promoter, there are child pornography, bestiality, sodomy, violence, discriminating statements or representations regarding race, sex, religion, nationality or handicap and/or if hyperlinks to other pages with corresponding content exist.

Liability of the Promoter

The promoter is solely responsible for the operation and the content on his own WAP or web pages. The service provider shall particularly be obliged to keep their own web pages free from all illicit or illegal content or other content which violate the law or are offensive as considered by the Law. Service & Information Providers are strongly recommended to view the Criminal Justice Act 2008.
The service provider shall completely indemnify and hold harmless the operator of Mpex Mobile from and against all claims asserted against Mpex Mobile due to the way of operation or the content of their own WAP/web pages. This shall apply especially to the commercialization of the pages of the service provider and will also apply to any regulatory investigations, sanctions, costs and administration costs incurred during the defence of any said investigation.
The service provider bears the exclusive responsibility for the statements made in the promotion and takes full responsibility for compliance with the PhonepayPlus Code of Practice for the regulation of Premium Rate Services, The Cross Network Operator Code, Individual Mobile Network Operators Code of Practice, The ASA and Ofcom guidelines. The service provider assures to be identical with the personal details and the statement of the address given and that he is of legal age and of full legal capacity.
The access data to Mpex Mobile are to be treated strictly confidentially. The forwarding to third parties or any publication is strictly prohibited. The contractual parties have to keep mutually confidential all information they receive in connection with the execution of the agreement and they have to take all necessary measures to prevent third parties from taking notice or using the information. Unless already regulated based on their employment contract, the employees in charge of the service are obliged to keep this information confidential.
The advertising graphics and link codes of the providers of content and services are protected by copyright and may only be used in unaltered form and for the promotion of the web pages, products and services connected to the service provider tool. Any improper use results in consequences under criminal law.
The operator of Mpex Mobile points out that any promotional activity of the service provider is exclusively considered as his own action. Thus, Mpex Mobile will under no circumstances support, approve of, promote or otherwise adopt any unwanted promotional actions or other activities of the service provider towards third parties. Such actions are exclusively his own matters falling in the area of activity of the service provider. This shall apply especially with regards to unwanted promotional actions or other activities of the service provider towards third parties carried out by him with the help of technical and electronic support and without Mpex Mobile knowing thereof (spamming, flaming, mail bombing). Thus, the service provider exempts the operator of Mpex Mobile from all actions which may arise due to claims asserted against him by third parties, law enforcement agencies, regulatory authorities because of actions causing damage carried out by the service provider, irrespective of whether they are intentional or negligent.

Unfair Advertising Practices / Spam

It is strictly prohibited to send SPAM or other unacceptable correspondence or electronic marketing to be considered as unfair advertising practices via newsgroups, e-mails, SMS, fax or mail and via other means of telecommunication. Service providers must especially but not exclusively comply with the Privacy Electronic Communications Directive 2003, UCP 2008 and aforementioned Codes of Practice as well as legal provisions under criminal law and further relevant legal provisions, as the case may be. Messages are to be considered as unfair advertising practices when the identity of the sender or the actual sender address is willfully falsified or hidden or when messages are sent to recipients who have not given their express consent for receiving the message prior to receiving the message and when the recipient has no possibility or only a possibility under aggravated conditions to unsubscribe.
If the operator of Mpex Mobile gains notice of the sending of unfair advertising material or if he is informed by third parties about the sending of unfair advertising material, the service provider authorizes the operator of Mpex Mobile to disclose all personal data to the necessary authorities or regulatory bodies and the person claiming to be the recipient of the unfair advertising.
In such cases, all claims against Mpex Mobile shall be forfeited immediately. Mpex Mobile reserves in such a case the right to claim costs and will also claim in full any financial or other sanction imposed on it by a recognised legal or regulatory authority.
The service provider can only remove the suspicion of sending unfair advertising material by either producing the express declaration of consent of the recipient of the advertisement for receiving the advertisement complained about or by making a declaration in lieu of an oath towards the operator of Mpex Mobile . This declaration in lieu of an oath must have been submitted to the operator of Mpex Mobile two working days after request of the original. In the declaration, the service provider has to assure in lieu of an oath not to be the sender of the unfair advertising material himself and also not to have instructed a third person or company with the sending of unfair advertising material.
The service provider exempts the operator of Mpex Mobile upon the first request from all claims asserted against the operator of Mpex Mobile in connection with the actions caused by the service provider.

Liability of Mpex Mobile

Mpex Mobile does not warrant that the service or the advertising tools provided for the service provider and the service offering of the provider of content and services lying behind, accounting methods or promotional material function constantly without disturbance and interruption.
It is pointed out that the operator of Mpex Mobile is, in fulfilment of his legal duties, entitled to remove banner ads and promotional material of providers of content and services from the service provider tool if there is reasonable suspicion that the offer behind it violates legal or regulatory requirements. Becoming active in fulfilment of legal duties excludes a liability of the operator of Mpex Mobile for damage arising for the service provider.
Apart from cases of intention and gross negligence, every liability of Mpex Mobile including liability for damages is excluded. What is particularly excluded is also the liability for subsequent damage or consequential damage and losses for the service provider or third parties including the loss of profit.
In cases of intention and gross negligence, the liability of the operator of Mpex Mobile is limited to an amount of GBP 1,000. Further claims for whatever cause in law shall be excluded.
The operator of Mpex Mobile further distances himself from liability claims caused by the promoted provider of service and content or the promotional material made available by this provider.
The operator of Mpex Mobile does not assume any liability for information and data of third parties. This applies particularly to the actuality, completeness, correctness, quality of the provided information, availability of the listed URLs, freedom of the rights of third parties or the conformity with legal provisions or other binding rules.
Mpex Mobile does in other respects not assume any liability for the correctness, applicability or usability of his own content.
The operator of Mpex Mobile does not assume any liability for the functionality of the systems provided by him. He will particularly not assume any liability for the transmission, the complete transmission and/or the timely transmission of information, data, e-mails and other messages.
The operator of Mpex Mobile shall not be obliged to maintain existing information, data and services, not to interrupt or to change them. However, the operator will at best attempt to inform the service providers in case of the dismissal or the interruption of an electronic service thereof in time.

Availability

We reserve the right to stop the service of Mpex Mobile at any time and to change the appearance of Mpex Mobile without giving reasons at any time. Mpex Mobile will whenever technically and operationally possible, inform the service provider of any outage or service maintenance.
The third-party web pages, products and services of independent providers of content and services promoted in the service provider tool are fed into the service provider tool Mpex Mobile without any check and assurance regarding the availability, correctness, legality and completeness.

Term / Termination

This agreement is concluded for an infinite period of time and can be terminated at any time with a notice period of 90 days. The termination must be made in writing.
Upon termination of this agreement all of the service provider’s rights of use of the messages and representations provided by Mpex Mobile granted under this agreement shall expire.
The service provider will take all technical precautions so that there remain no links between the web pages of the service provider and the web page of Mpex Mobile upon termination of this agreement. Furthermore, no promotional material of Mpex Mobile or from its service provider tool such as web pages, banner ads may be used.
The service provider shall not be entitled either after termination of the agreement to assert claims for damages or compensatory adjustments of whatever kind against Mpex Mobile or its operator.

Data Protection

Mpex Mobile stores all data of the service provider during the term of the contractual relationship to the extent that this is necessary for the fulfilment of the purpose of the agreement, particularly for accounting purposes. Mpex Mobile processes and uses the collected stock data also for consulting of its customers, for promotion and for the market research for own purposes and for cooperation projects with other partners and for the need-based structuring of its telecommunication services. Mpex Mobile will at all times inform the service provider upon request about the stored data stock completely and free of costs as far as the service provider is concerned.
Mpex Mobile points expressly out to the service provider that the data protection for the transmission of data in open and public networks such as the internet cannot be guaranteed.
The service provider is aware of the fact that the provider can, from a technical point of view, access the range of pages stored on the web server and possibly also other data of the service provider which may be stored. It may be possible for other internet users to interfere in the net security without authorization and to control the communication traffic. The service provider has to completely independently take care for the security of the data transmitted by the service provider to the internet and stored on the web servers / data bases.

Final Provisions

These terms and conditions are final.
No verbal agreements have been entered into. All changes deviating from these terms and conditions must be made in writing and must be signed by the contractual parties or their authorized representatives. The same shall apply to the waiver of this written form clause.
If any party waives its right to assert claims for breach of contract, this waiver shall not effect the right of that party to bring an action due to subsequent breach of contract.
The operator of Mpex Mobile shall be entitled to transfer the fulfilment of his obligations completely or partially to third parties.
Every party confirms that it was advised and had the possibility to obtain independent advice regarding legal issues and the effects of concluding an agreement. Furthermore, the parties confirm that they had the opportunity to make their own independent judgements and they shall only rely on their own examination and the examination of their consultants regarding the rights, duties, liability and consequences which may result from the conclusion of an agreement.
Place of jurisdiction and place of performance are the Courts of England & Wales.
Should one or several of the aforementioned provisions be or become ineffective, the effectiveness of the remaining provisions shall not be affected thereof. The ineffective provision is to be replaced by an effective provision which widely fulfils the pursued economic effect or comes as close as possible to it.
These General Terms and Conditions are not bound to other statements, representations, promises or incentives, irrespective of whether they were made by Mpex Mobile , a representative or employee, unless they are listed in writing independently from this agreement. The service provider assures expressly that he has not relied on representations not contained in these General Terms and Conditions.

Signed by (Print Name)           __________________________
Signature                               __________________________
On behalf of (Company)          __________________________
Date                                         __________________________