As of February 2022
1.1. Scalable Capital GmbH ("Scalable Capital") is an investment firm whose main business (within the limits of regulatory authorizations) is the provision of investment services of all kinds and related transactions. Scalable Capital GmbH is a wholly owned subsidiary company of Scalable GmbH.
1.2. Scalable GmbH operates a platform ("Platform”) through which third parties ("Partner(s)") may market the services (in particular wealth management as well as brokerage) ("Offered Services") of Scalable Capital in accordance with these Terms and Conditions of Partner Program Participation ("Partner Program"). In order to market the Offered Services as part of their participation in the Partner Program, Partners will provide advertising space on their website, social channels, podcasts and/or in their application ("Media"). Scalable GmbH and the Partner are hereinafter each individually also referred to as a "Party" or collectively as the "Parties".
1.3. The URL of the Platform is: https://it.scalable.capital/partnerprogramm.
1.4. The legal relationship between the Partner and Scalable GmbH with regard to the Partner Program is governed exclusively by these Terms and Conditions of Partner Program Participation. Deviating, conflicting or supplementary general terms and conditions of the Partner will only become part of the contract if and to the extent that Scalable GmbH has expressly agreed to their validity.
1.5. Individual agreements made with the Partner in individual cases (including collateral agreements, supplements and amendments) take precedence over these Terms and Conditions of Partner Program Participation in all cases. For the content of such agreements, subject to proof to the contrary, a text form contract or at least the written confirmation (email is sufficient) from Scalable GmbH is decisive.
2.1. There is no right to participate in the Partner Program. Participation in the Partner Program requires (i) an application via the Platform and (ii) acceptance as a Partner by Scalable GmbH.
2.2. In deciding whether to accept you as a Partner, Scalable GmbH pays particular attention to the following aspects (not exhaustive), which may be queried during the application process:
For the avoidance of doubt, acceptance as a Partner remains at the discretion of Scalable GmbH, irrespective of the existence of one or more of the aforementioned aspects.
2.3. The acceptance as a Partner will be communicated to the Partner by Scalable GmbH (e.g. by email). The notification can also be made (implied) by granting access to the Platform.
3.1. The marketing of the offered services is based on the following models (Pay-per-Click, Pay-per-Lead and Pay-per-Sale), each of which describes a marketing success ("Marketing Success"):
Forwarding of a visitor of the Partner's media to a website of Scalable Capital as a result of a click of the visitor on an advertising medium provided by Scalable Capital in the corresponding advertising space of the Partner.
Forwarding of a visitor of the Partner's Media to a website of Scalable Capital as a result of a click of the visitor on an advertising material provided by Scalable Capital in the corresponding advertising space of the Partner (cf. Section 3.1.1, Pay-per-Click) and as a result of the forwarding the visitor provides his/her email address to Scalable Capital within 30 days after the forwarding (e.g. in order to sign up for a newsletter or to start an onboarding). Marketing success in the Pay-per-Lead model only occurs if the visitor then also confirms his/her email address to Scalable Capital within these 30 days.
Forwarding of a visitor of the Partner's media to a website of Scalable Capital as a result of a click of the visitor on an advertising material provided by Scalable Capital in the corresponding advertising space of the Partner (cf. Section 3.1.1, Pay-per-Click) and as a result of the forwarding the visitor starts the onboarding for the use of the offered services within 30 days after forwarding (confirmation of the email address to Scalable Capital required). It is also required that the visitor successfully concludes a contract for one of the offered services as a result of the started onboarding. The conclusion of a contract for one of the offered services requires the acceptance of the visitor as a customer. Acceptance as a customer requires successful identification (e.g. via POSTIDENT video, online ID function (eID), a post office branch or via SafeNed-Fourthline B.V.). In addition, there must be no objective reasons against the acceptance as a customer of Scalable Capital. A marketing success in the Pay-per-Sale model only occurs if the customer has made a deposit to his/her Scalable Capital clearing account, has made a trade or has created a savings plan within 6 weeks after the start of the onboarding process.
3.1.4. Combination of models
A combination of the models mentioned in section 3.1.1. to 3.1.3.
3.1.5. Forwarding to an application or app store presence
In all models mentioned in clauses 3.1.1. to 3.1.4., the forwarding can also take place to an application or an App-Store presence of Scalable Capital, if Scalable Capital has agreed this separately with the Partner in writing (email sufficient) beforehand (in particular, technical availability provided).
3.2. Scalable GmbH and the Partner will agree separately in text form (email sufficient) on the amount of the commission for the respective model as well as the use of the models and, if applicable, further modalities (in particular a possible combination within the meaning of section 3.1.4.).
3.3. The technological evaluation of the advertising media (to determine the marketing success) will be carried out with the aid of standard market technologies for the evaluation of tracking codes.
3.4. The marketing successes described in section 3.1. are exclusively attributed to the Partner who, according to the tracking code, is responsible for the last redirection of the visitor to the Scalable Capital Website before the marketing success.
3.5. A marketing success will be remunerated and settled to the Partner by Scalable GmbH according to the following conditions:
3.5.1. The settlement will be made in the credit note procedure. That means: Instead of an invoice by the Partner, a credit note will be issued by Scalable GmbH.
3.5.2. The Partner's claim against Scalable Capital for the performance-based remuneration arises and becomes due under the following conditions:
22.214.171.124. A marketing success has occurred, which has been confirmed by Scalable GmbH in writing (by email is sufficient) or within the Platform.
126.96.36.199. There is no violation of these Terms and Conditions of Participation.
188.8.131.52. The marketing success has not been subsequently cancelled by Scalable Capital.
3.5.3. The commission amount per marketing success displayed in the Partner's profile applies. Scalable GmbH reserves the right to adjust the commission amount. Scalable GmbH will inform the Partner about a planned adjustment in text form (email is sufficient) with a notice period of two (2) weeks before the adjustment takes effect. For clarification: Already booked commission amounts are not affected by an adjustment.
3.5.4. The payout is made to the bank account of the Partner specified by the Partner to Scalable GmbH.
3.5.5. Commissions will be paid out to the Partners once the payout limit of EUR 50.00 is exceeded. If the Partner earns less than EUR 50.00 in one month, this will be carried over to the following month(s) and added up until the payout limit is exceeded. In the event that the Partner leaves the Partner Program (i.e. in particular in the event of termination), payment amounts not yet settled will be paid to the Partner irrespective of whether the payment limit has been exceeded.
4.1. The Partner assures that he/she is unrestrictedly authorized to use the specified media and the corresponding advertising space for the purpose on which the Partner Program is based.
4.2. The Partner also assures that all legal (in particular trade law and supervisory law) and actual (in particular technical) prerequisites for the Partner’s participation in the Partner Program as well as the fulfilment of the obligations incumbent upon the Partner are met. Upon request, Scalable Capital or Scalable GmbH must be provided with separate proof that these requirements have been met. The Partner is responsible for the correct and functional connection to participate in the Partner Program (in particular to the Platform).
4.3. The Partner guarantees that advertising spaces that are registered by the Partner as well as the respective medium used and all other content made available to (potential) customers do not violate legal regulations. In particular, (i) content that violates the rights of third parties, in particular copyrights, name rights or trademark rights, (ii) content that glorifies violence, is of a pornographic, state-endangering or youth-endangering nature or may not be made publicly accessible, as well as (iii) all entries that contain viruses, trojans or other similar programs that are capable of damaging data or systems, deleting them, secretly intercepting them or otherwise disrupting the operation of the Partner Program are not permitted. As far as Scalable Capital and/or Scalable GmbH is exposed to claims of third parties because of such content, the causing Partner, Scalable Capital and/or Scalable GmbH must indemnify Scalable Capital and/or Scalable GmbH from these claims (including the costs for legal advice and litigation according to law).
4.4. When using content of any kind (e.g. logos, banners, text links, etc.) provided to the Partner by Scalable Capital or Scalable GmbH for participation in the Partner Program (each in the form of a tracking code) ("Advertising Materials"), the Partner must observe the following:
4.4.1. Advertising Materials may only be used on websites or other advertising spaces that have been approved by Scalable Capital.
4.4.2. The Partner is not permitted to modify the Advertising Materials provided to the Partner in any way or to use them in any other way for purposes other than the Partner’s participation in the Partner Program.
4.4.3. In particular, when sending emails (e.g. newsletters) with advertising for Scalable Capital, but also generally in connection with the use of advertising material or public references to Scalable Capital or its products, the Partner ensures that this is done in compliance with the legal requirements (in particular with regard to the requirements of the law against unfair competition and data protection laws) or regulatory requirements and guidelines (e.g. publications of ESMA or other relevant supervisory authorities) as well as current case law.
4.5. The attempt to manipulate, falsify and/or otherwise change the Partner Program (as well as in particular underlying systems, technologies, codes and/or billing mechanisms) in any way (e.g. through automatically generated clicks as well as clicks initiated by coercion or deception) is prohibited, automatically leads to the immediate blocking of the Partner and entitles Scalable GmbH to immediately terminate (without observing a notice period) the participation in the Partner Program. Claims of the Partner to payment of credit balances and or other commission claims, the creation of which are in each case connected with the conduct entitling to termination, will be forfeited. Manipulation is considered to be any attempt to circumvent the systems and the accounting principle of the Partner Program by technical or other means. In the case of a deliberate attempt by a Partner to influence in particular the statistics and thus the amounts to be paid out to him/her through corresponding manipulation attempts, a contractual penalty of EUR 3,000.00 plus VAT will also be due for each identified attempt. The same applies if a Partner who has already been excluded due to a breach of contract participates in the Partner Program under a different name and/or (different) identity.
4.6. The Partner is responsible for ensuring that the contact and account data provided by the Partner are always up to date. If the Partner suffers disadvantages due to inadequate or outdated contact and account data, this will be the Partner’s own responsibility and any damages will not be compensated.
4.7. The Partner ensures that he/she can be reached by the means of communication (as well as the address) specified by the Partner during normal business hours and that emails as well as the mail are checked at regular intervals.
4.8. In all other respects, the Partner accepts liability in accordance with the statutory provisions.
5.1. Subject to compliance with these Terms and Conditions of Partner Program Participation, Scalable GmbH provides access to the Platform. Scalable GmbH is entitled to change and/or completely discontinue any (technical) aspects, representations and functionalities of this Platform at its sole discretion, provided that this does not conflict with Scalable GmbH's obligations under these Terms and Conditions of Partner Program Participation.
5.2. After Scalable GmbH has granted the Partner access to the Platform, the Partner must create a user account. The Partner ensures that the access to the Platform as well as the corresponding user account are only used by the Partner for the purpose of participating in the Partner Program. If the Partner suspects that a third party has gained unauthorized access to the Partner’s access to the Platform or the user account, the Partner is obliged to notify Scalable GmbH immediately in writing (email is sufficient).
5.3. Scalable GmbH may partially or completely, temporarily or permanently restrict the Partner's access to the Platform in order to prevent damage or imminent danger to the Platform and/or Scalable Capital and Scalable GmbH if the Partner's access and or aser account is misused or used without authorization (e.g. by third parties). This applies e.g. in the cases of clause 5.2, last sentence.
5.4. Scalable GmbH does not warrant the timeliness, correctness, completeness, functionality or quality of the Platform or the access to the Platform. Furthermore, Scalable GmbH does not warrant that the usability of the Platform or the access to the Platform will be error-free or uninterrupted.
6.1. Unless otherwise provided in these Terms and Conditions of Partner Program Participation including the following provisions, Scalable GmbH is liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
6.2. Scalable GmbH is liable for damages - irrespective of the legal grounds - within the scope of fault liability in case of intent and gross negligence. In case of simple negligence Scalable GmbH is liable, subject to legal limitations of liability (e.g. diligence in own affairs; insignificant breach of duty), only
6.2.1. for damages resulting from injury to life, body or health,
6.2.2. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, the liability of Scalable GmbH is limited to the compensation of the foreseeable, typically occurring damage.
6.3. The limitations of liability resulting from clause 6.2 also apply to third parties as well as to breaches of duty by persons (also in favor of the Partner) whose fault Scalable GmbH is responsible for according to legal regulations. They do not apply in the case of the assumption of explicit guarantees by Scalable GmbH and for damages resulting from injury to life, body or health, as well as in the case of mandatory legal regulations.
7.1. The Partner is obligated and warrants to observe and comply with the applicable laws, regulations and requirements of the statutory provisions on data protection law (in particular EU-DSGVO and Federal Data Protection Act) at any time and will take the necessary action to achieve this. Further, the Partner is obliged to report any violations immediately to Scalable GmbH in writing without undue delay.
7.2. The Partner warrants that it has undertaken and regularly implements appropriate technical and organizational measures to adequately protect the personal data it may receive from visitors who access a website or, as the case may be, an application or app store presence of Scalable Capital via its advertising space.
8.1. Participation in the Partner Program is not limited in time and may be terminated by either Party at any time with a notice period of two (2) weeks in writing (email is sufficient).
8.2. In all other respects, either Party may terminate for good cause without notice. Good cause is defined as the fact that the terminating party cannot reasonably be expected to continue the contractual relationship until the agreed termination or until the expiry of a notice period, taking into account all circumstances of the individual case and weighing the interests of both Parties.
9.1. These Terms and Conditions of Partner Program Participation do not establish a company with external effect in legal transactions, nor an employment, commercial agent, commission agent or employment relationship, and therefore do not authorize either of the Parties to make legally binding declarations for both Parties jointly or for the other party, or to represent them in any other way.
9.2. The Partner is not allowed to disclose any business secrets and other confidential information (information in any form (e.g. oral, written, electronic)) that come to its knowledge that is (i) clearly marked as confidential information, described as such or otherwise made recognizable as such, (ii) due to its content is to be considered confidential (in particular business strategies and/or plans) and/or (iii) confidential information provided by Scalable Capital or Scalable GmbH) of Scalable GmbH and Scalable Capital neither during the participation in the Partner Program nor after the end of his participation in the Partner Program. The Partner ensures that this obligation is also observed by his employees. Business secrets or confidential information, whether in writing, electronically or in any other form, which Scalable GmbH or Scalable Capital has entrusted to the Partner, will be returned by the Partner immediately after use for the purpose of participation in the Partner Program, but at the latest within one week after the end of his participation in the Partner Program, or destroyed at the request of Scalable Capital or Scalable GmbH.
9.3. Scalable GmbH may change these terms and conditions at any time. Changes will be announced to the Partner with a notice period of two (2) weeks before the change becomes effective. The changes are considered accepted if Scalable GmbH does not receive the Partner's objection within two (2) weeks from the Partner's receipt of the changes. Scalable GmbH will inform the Partner about this legal consequence in the corresponding announcement of the changes. Legal claims that have already arisen remain unaffected by an amendment.
9.4. The invalidity of one or more provisions of these Terms and Conditions of Partner Program Participation does not affect the validity of the rest of the Terms and Conditions of Partner Program Participation. The Parties are obligated to replace the invalid provision with a provision that comes as close as possible to the economic purpose of these Terms and Conditions of Partner Program Participation by mutual agreement. The same applies to any loopholes in the Terms and Conditions of Partner Program Participation.
9.5. These Terms and Conditions of Participation are subject to the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction is Munich.
9.6. Only the German-language version of the Terms and Conditions of Partner Program Participation is legally binding. All other language versions are solely for information purposes.