We (hereinafter: "Operator") distribute products and services to end customers in various legal forms. Depending on the subject matter of the contract -- i.e., the product to be purchased and/or the service to be ordered -- you (hereinafter: "Seller") either conclude (i) a contract with the Operator and the Operator then distributes the products and/or services to the Operator's end customers in its own name (hereinafter "Self-Transaction"), or (ii) the Operator acts an agent in each individual case of a product to be purchased and/or a service to be provided and brokers a contract between the Seller and the end customer (hereinafter: "Agent Transaction"). The differentiation between Self-Transactions and Agent Transactions is defined in Number 1.2 of the General Terms and Conditions. The following provisions regulate only Agent Transactions; regulations concerning Self-Transactions are agreed separately between the Seller and the Operator and are not a subject matter of these Conditions. When the Seller opens a seller's account, a contractual relationship with the following content comes into existence between the Seller and the Operator:

I.1. The Seller may suggest software and/or hardware products to the Operator for distribution on the platform simmarket.com (hereinafter: "the Platform"). This is regularly done such that the Seller transmits the following information, among other things, to the Operator by e-mail: short description of the product including screenshots or photos; in the case of software, links to the storage location of all files; price at which the product is to be offered on the platform including value added tax (VAT).

I.2. If the Seller suggests a product to the Operator, the Operator shall prepare a draft product page to be integrated into the platform and transmit a representation of this page (or a link to it) to the Seller for approval. If the Seller approves the product page developed by the Operator, the Seller thereby agrees that the Operator is authorized to activate the page with the proposed content live on simmarket.com.

I.3. When the Seller approves a product page, it thereby agrees to the following:

3.a) The Operator is authorized to offer the product for downloading and/or per CD burning service in the name of and for the account of the Seller or, in the case of hardware, to offer it for sale. This right is not regional, i.e., end customers may purchase the product worldwide regardless of their place of residence. For clarity's sake, the parties stipulate that the Operator is not obligated to offer the product at all or in a certain way. Therefore, the Operator may decide at any time at its absolute discretion regarding the placement of the product on the Platform and regarding advertising for the product in advertisements such as newsletters. In addition, the Operator may remove the product from the product line at any time and/or temporarily or permanently discontinue the operation of the Platform as a whole, for example due to maintenance work or technical malfunctions.

3.b) A contract with the end customer who downloads or orders a product via the Platform comes into existence exclusively between the end customer and the Seller. The Operator merely makes the coming into existence of this contract possible by introducing the product on its Platform and offering the opportunity to download or order it there. The contract with the end customer comes into existence at the moment in which the end customer places the product into the shopping cart on the platform and has completed the ordering process as set up on the Platform by the Operator. The Seller grants the Operator power of attorney to complete the transaction to this extent. Because of specifics in relation to VAT reference is made to subsection 3 e.

3.c) The seller acknowledges that, in accordance with mandatory legal provisions, the end customer may be entitled to revoke the contract between him and the seller. If an end user makes use of his right of withdrawal, the seller is responsible to reimburse the full amount. However, to the extent that the end customer requires reimbursement from the operator, the operator is entitled to satisfy this claim for the account of the seller. In this case, the operator is then entitled to deduct the reimbursement amount from the seller as well as any processing fees incurred by the credit institution from the total sales funds currently due to the seller. If no such funds are due to the seller at the time in question, the seller is obliged to reimburse the operator in cash.

3.d) The price for which the Seller offers the product on the Platform is fixed solely by the Seller. The Seller is entitled to change the price at any time with a notice period of one week by giving the Operator notice in text form.

3.e) Contrary to subsection 3 b simMarket and not the publisher is considered as contractual partner for VAT purposes, where a EU resident is the (non-taxable) final consumer and as such the recipient of the (software) download services. In these cases, where simMarket is considered for VAT purposes as contractual partner, simMarket is responsible for paying the VAT which is incurred on the fee to be paid by the end consumer.

3.f) The Seller agrees that the applicability of German law and, if necessary, jurisdiction in Germany, will be agreed in the contract with the end customer. However, the Operator does not warrant that this agreement will develop legal effect in all cases; specifically, it may be possible that a choice-of-forum clause is impermissible on legal grounds, that foreign legal standards are valid despite the choice of law, or that the choice of law fails overall in individual cases.

3.g) In addition, the Seller agrees that the contract is concluded incorporating General Terms and Conditions that the Operator fixes at its own discretion and may change at any time. The General Terms and Conditions for end customers which the Operator currently uses can be viewed at https://secure.simmarket.com/conditions.php. In the event of later changes, about which the Operator will notify the Seller beforehand, the Seller is entitled to extraordinary termination of the contractual relationship existing with the Operator; this right can only be exercised within two weeks after notification.

3.h) Warranty claims and other claims arising from the contract the end customer and the Seller have concluded via the Platform, shall be fulfilled exclusively by the Seller. The Seller undertakes to indemnify the Operator against any claims and to compensate the Operator for any damages and costs that arise because claims are asserted against the Operator regarding contracts concluded via the Platform pertaining to products of the Seller.

3.i) The Operator shall collect the fee to be paid for the Seller's product by the end customer on behalf of the Seller. The Operator is authorized to accept payments for the Seller in this regard. The Operator shall regularly pay out to the Seller the payments collected for the Seller in accordance with the provision in the following Paragraph s). It is entitled to deduct the commission to which it is entitled.

3.j) Regardless of the legal grounds, the Operator is liable exclusively for damages that its employees and vicarious agents cause intentionally or through gross negligence, or if an essential contractual obligation is violated, through simple negligence. A contractual obligation is essential if its performance in particular allows the proper execution of the contract and the Seller regularly relies on and is justified in relying on its observance.

3.k) In case of simple or gross negligence pursuant to Paragraph j), liability is limited to typical damage that was foreseeable at the time the contract was concluded or at the time of the breach of duty.

3.l) The Operator's liability due to the violation of an expressly granted guarantee, due to damage under the Product Liability Act [Produkthaftungsgesetz] or due to death, bodily harm or health damages, shall remain unaffected.

3.m) In the event of data loss, the Operator's liability pursuant to Paragraph j) shall be limited to the typical restoration costs that are incurred if security backups are made on a regular basis as appropriate for the risk.

3.n) The Operator is not liable to the Seller for the performance of the end customer's payment obligations. Particularly in those cases in which the end customer has paid by credit card or using an online payment service and the payment is later reversed, the Operator is not obligated to make a payment to the Seller. If the Operator has already paid out the initially collected payment of the end customer to the Seller, the Seller is obligated to refund it. At the Operator's choice, the Operator may also deduct the refund to which it is entitled from other payments to which the Seller is entitled based on other transactions. The Seller shall reimburse the Operator for any costs that the Operator incurs due to the reversal of the end customer's payment; the foregoing sentence applies accordingly.

3.o) The Operator is not only authorized to offer the software offered on the Platform in the Seller's name for downloading by the end customer, but alternatively or additionally also to copy this software on data carriers at the respective end customer's request and to sell these data carriers to the end customer. If the Operator demands a separate fee from the end customer for this, it represents the consideration for the provision of the data carrier only or, as the case may be, for the service of making the copy. The Seller does not earn a commission on this fee.

3.p) The Operator shall receive a commission for all transactions regarding products of the Seller that come into existence via the Platform. The amount of the commission depends on the compensation and marketing model ("Commission Plan") chosen by the Seller. The applicable commission rates can be viewed in the overview retrievable under .

3.q) The basis for the calculation of the commission is the net amount (excluding VAT) invoiced to the customer for the Seller's respective product.

3.r) The right to payment of a commission arises as soon as and to the extent that the end customer has paid the fee for a transaction subject to a commission. The commission is payable plus any value added tax incurred by the Operator.

3.s) For each calendar month and by no later than the last day of the following month, the Operator shall issue an accounting of the transactions regarding the Seller's products entered into in the respective month and the payable commission. This can be done by the Seller being sent a link by e-mail to an accounting available online. The Seller shall verify the accounting without delay and make any objections to the Operator within one month after being notified about the accounting; otherwise, the accounting shall be deemed accepted. The commission is due with the accounting. Within one week after the accounting, the Operator shall pay out to the Seller the payments from end customers collected for the Seller-minus any amounts to which it is entitled, either via PayPal, via another online payment service or by bank transfer. In the latter case, the fees incurred will be split equally between the Operator and Seller.

3.t) The contractual relation between the Operator and Seller is non-exclusive. The Seller is free to market the product in other ways as well. Conversely, the Operator is free to market similar and competing products from other providers via the Platform.

3.u) The Seller guarantees that the products it has suggested for marketing on the Platform are free from rights of third parties and that it is authorized to distribute them worldwide. The Seller undertakes to indemnify the Operator against any claims on first demand and to compensate the Operator for any damages and costs that the Operator incurs because end customers or other third parties make claims against the Operator due to an alleged defect of title and/or an alleged infringement in connection with a product offered by the Seller. This also applies in the case of hardware for any claims against the Operator for product liability.

3.v) The Seller undertakes to keep available at all times all files associated with the products offered on the Platform or, in the case of hardware, to ensure constant delivery capacity. The Seller shall notify the Operator of any limitations without delay after they become apparent to the Seller.

I.4. The contractual relationship between the Operator and the Seller lasts indefinitely. Both parties may terminate it at any time with notice of one month. The right of termination for cause remains unaffected. Any termination must be in writing or by e-mail.

I.5. After the contract ends, the Operator shall no longer offer the Seller's products on the Platform. The validity of transactions entered into prior to the contract termination remains unaffected. The authority granted to the Seller to collect and offset payments also remains in effect until all claims vis-à-vis the Seller have been fulfilled.

I.6. The contractual relation between the Operator and the Seller are subject to German law to the exclusion of the provisions of International Private Law. The UN Convention on Contracts for the International Sale of Goods does not apply. The place of performance for all contractual obligations and - unless there is a different exclusive jurisdiction by law - the exclusive place of jurisdiction for all disputes under this contract shall be the location of the Operator's place of business, but providing that the Operator may at its choice also sue the Seller at any statutory place of jurisdiction.

Theses "Conditions for the Sale of Products via simMarket" exist in an English version and in a German version. The English version serves as a convenience translation while the German version is legally binding.
Updated: 01.01.2015
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