All references to “the Company”, “we”, “us” and “our” in these terms and conditions refer to AdMarula (Proprietary) Limited, registration number 2011/009369/07, a limited liability company incorporated in the Republic of South Africa and having its registered address at Unit C8, Block C, Carpe Diem, 26 Quantum Street, Techno Park, Stellenbosch, Western Cape, 7600
All references to “you” and/or “the Publisher” refers to the entity named as such on the form (“Publisher Application Form”) submitted by the Publisher to the Company when applying for participation in an Affiliate Program (as defined in clause 1.2 below).
1 Description of the service
1.1 The Publisher is the operator of the website stipulated on the Publisher Application Form (“Website”).
1.2 The Company provides a service (“Service”) in terms of which third parties (“Advertisers”) can set up a marketing and sales partnership program in its own name on the Company’s website (“Affiliate Program”) which allows the Publisher to place a link on the Website on which any person (“Unique Visitor”) may click to be directed to a website of the Advertiser (“Linked Websites”) and thereby is directly connected to the Linked Website (“Click”). Once on the Linked Website, the Unique Visitor may complete a definite act, for example, register as a user, (“Lead”) or conclude an agreement to buy a product, service or anything else supplied on the Linked Website (“Transaction”). The Affiliate Program remains at all times operated on a website owned by the Company.
1.3 As part of the Service, the Company shall monitor and register valid Clicks, Leads and Transactions (“Traffic”) generated by the Website to Linked Websites, report thereon to the Advertisers concerned, and collect payment from the Advertisers of a fee in respect thereof (“Service Fee”) as part of the Affiliate Program.
1.4 The Company pays part of the Service Fee to the Publisher. Conditions of remuneration for each Affiliate Program are published on the Company’s website and are updated from time to time. It is your responsibility to check the Company’s website for changes to the conditions of remuneration for each Affiliate Program.
1.5 The Company will NOT under any circumstances offer the Service to any Advertiser of pornographic material or gambling activity or illegal activity. No materials from or link to such Advertiser may be placed on the Website or the Company’s website pursuant to the Service.
2 Participation in service
2.1 In order to use the Service (and allow the placing of links on the Website to one or more Linked Websites), you must make an application to become an “authorised” Publisher of the Company by completing the Publisher Application Form and accept these terms and conditions by clicking on the box below labelled “I accept”. Once the Publisher has done so, a legally-binding agreement between the Publisher and the Company (“Agreement”) comes into being, which governs the participation of the Publisher in the Service. The Publisher will be informed via email once the Publisher has been accepted as an “authorised” Publisher, after which the Publisher may use the username and password submitted on the Publisher Application Form, to communicate on the Company’s website.
2.2 Once you have been accepted as an “authorised” Publisher of the Company, you must indicate the Affiliate Program(s) in which you wish to participate, and make an application to be an “approved” Publisher. The Publisher will be informed via email once accepted as an “approved” Publisher, whereafter the Publisher is entitled to participate in the Service and thus place links on the Website to the Linked Websites.
2.3 The Company reserves the right to modify, amend or change the Service on 30 days’ notice per email to the Publisher. If the Publisher does not accept the changes, the Publisher will be deemed to have terminated the Agreement and the Service will cease.
3 The publisher’s obligations
3.1 The Publisher must comply with the requirements of the Affiliate Program, including in particular any stipulations as to the nature and content of the Website and the use of third party or other “Intellectual Property Rights”, meaning rights in patents, registered designs, design rights, trademarks, copyright, database rights, moral rights, topography rights, trade and business names including the benefit of all registrations and applications to register any of the aforesaid, as well as rights to trade secrets, know-how and other technical information, and all similar or equivalent rights, wheresoever arising in the world.
3.2 Information about the Affiliate Programs will be available on the Company’s website. The Publisher must check this information regularly, in particular, to establish if an Advertiser has terminated its Affiliate Program or changed its conditions.
3.3 The Publisher is solely responsible for the Website and its contents and shall ensure that it conforms at all times to all applicable laws and regulations.
3.4 The Publisher warrants that the information furnished to the Company about itself and the Website in the Publisher Application Form is true and accurate. The Publisher must notify the Company immediately of any changes in the information by updating such information on the Company’s website.
3.5 The Publisher warrants either that the rights to all information and content on the Website belong to the Publisher or that the owner of the rights to the information and content on the Website has given explicit permission to their publication there. The Publisher also warrants that the information and content on the Website do not infringe any rights of third parties, including Intellectual Property Rights, and that such information and content is not offensive, prohibited or questionable in any way.
3.6 The Publisher must not in any way generate or contribute to generating Artificial Traffic to Linked Websites. “Artificial Traffic” means invalid Clicks, Leads and Transactions, which may originate (for example and without limitation) from automatic openings, spiders, robots, requests in e-mail or chat rooms, script generators, placing links on other websites than informed, Clicks which are not generated by a browser, and Clicks which are not preceded by an active act of a Unique Visitor who wants to reach a certain website.
3.7 The Publisher must notify the Company immediately of any known or suspected improper or wrongful use of the Publisher’s links to Linked Websites and/or of the Service in any way whatsoever.
4.1 The Company collects payment from the Advertiser for the Service as per its agreement with the Advertiser. From such payment, it shall pay to the Publisher the commission for the accompanying Affiliate Program for which the Publisher has been accepted as an “approved” Publisher. Conditions of remuneration for each Affiliate Program are published on the Company’s website and are updated from time to time. It is the responsibility of the Publisher to check the Company’s website for changes to the conditions of remuneration for each Affiliate Program. For the avoidance of doubt, the Company shall have NO obligation to make any payment to the Publisher unless and until the Company has received the relevant Service Fee from the Advertiser.
4.2 The Company shall prepare an invoice on behalf of the Publisher at the end of each month, in respect of the Traffic generated up to the end of two months prior to the month of invoice. The Company shall indicate on the invoice the amount of value-added tax (“VAT”), if any, required to be levied as per the Value-Added Tax Act 89 of 1991 (as may be amended from time to time). The remuneration rates displayed on the Company’s website are exclusive of VAT, which is added separately.
4.3 The Company shall make payment of the invoices to the Publisher monthly in arrears, provided that the Company has received payment from each Advertiser and subject to clause 4.4.
4.4 Payment will only be made if the Publisher is due an amount of at least R500 (five hundred rands). This figure may change from time to time as agreed with you. An amount due of less than the aforesaid amount will be accumulated to the next payment and will be included in the amount to be paid out at the next payment date, again provided that the minimum amount is due. Accumulated amounts do not accrue any interest.
4.5 Payment to the Publisher will be made direct to the Publisher’s bank account. The Publisher must specify on the Company’s website the details of its bank account (including name and branch of the bank, branch code and the Publisher’s account number).
4.6 The Publisher is responsible for the payment of all tax payable on any remuneration paid to it by the Company.
5 Use of personal information
5.1 The Publisher consents to the publication of the Publisher’s name and web address etc on the Company’s website and to the Company sending newsletters and other marketing/promotional material to the Publisher’s e-mail address and using the information given by the Publisher for marketing purposes.
5.2 You also acknowledge that information regarding you, your employees and customers that is provided to the Company in connection with this Agreement may be processed by: (i) the Company; and (ii) subcontractors and agents of the Company in connection with the provision, support and maintenance of the Service.
5.3 The Company will not use your personal information for any purpose (other than as stated above) without your express consent. We will not use or disclose your personal information to third parties without your consent unless the use or disclosure is –
5.3.1 required in order to comply with applicable law, order of the court or legal process served on the Company;
5.3.2 and/or disclosure is necessary to protect and defend the rights or property of the Company.
5.4 We will be entitled to disclose your personal information to those of our employees and/or third-party service providers who assist us to interact with you via our Website or email and thus need to know your personal information in order to assist us to communicate with you properly and efficiently. We will ensure that all such employees and/or third-party service providers having access to your personal information are bound by appropriate and legally binding confidentiality and non-use obligations in relation to your personal information.
5.5 We will:
5.5.1 treat your personal information as strictly confidential;
5.5.2 take appropriate technical and organizational measures to ensure that your personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access;
5.5.3 promptly notify you if we become aware of any unauthorised use, disclosure or processing of your personal information;
5.5.4 provide you with reasonable evidence of our compliance with our obligations under this policy on reasonable notice and request; and
5.5.5 upon your request, promptly return or destroy any and all of your personal information in our possession or control.
5.6 We will not retain your personal information longer than the period for which it was originally needed, unless we are required by law to do so, or you consent to us retaining such information for a longer period.
5.7 The Publisher confirms that it is the Publisher’s obligation to inform its employees and customers of the processing of personal information as contemplated above and to ensure that such employees and customers have given their consent to such processing in accordance with applicable data protection legislation.
6 Intellectual property
6.1 The Company owns or is licensed to use all Intellectual Property Rights which subsist or arise in connection with the Service or software necessary for the Service. The Publisher does not acquire any rights or licences whatsoever under this Agreement other than to use links to Linked Websites subject to the terms of this Agreement.
7 The company’s liability
7.2 The Advertisers and their Affiliate Programs may change from time to time, and the Company gives no undertaking with regard to the number or size of the Advertisers.
7.3 Notwithstanding the fact that the Service provides links to Linked Websites, your participation in the Service is entirely at your own risk and WE ARE NOT RESPONSIBLE FOR ANY LOSS, EXPENSE, CLAIM OR DAMAGE, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM YOUR CONNECTION TO SUCH LINKED WEBSITES, INCLUDING ANY WEBSITE OF ANY ADVERTISER REFERRED TO IN CLAUSE 1.5 ABOVE.
7.4 THE COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL INJURY, LOSS OR DAMAGES WHICH MIGHT ARISE FROM
7.4.1 YOUR USE OF, OR RELIANCE UPON, ANY MATERIAL OR CONTENT CONTAINED IN THE COMPANY’S WEBSITE AND/OR ANY LINKED WEBSITES;
7.4.2 ANY INABILITY TO USE THE COMPANY’S WEBSITE AND/OR ANY LINKED WEBSITES;
7.4.3 ANY UNLAWFUL ACTIVITY ON THE COMPANY’S WEBSITE AND/OR ANY LINKED WEBSITES, INCLUDING ANY WEBSITE OF ANY ADVERTISER, REFERRED TO IN CLAUSE 1.5 ABOVE;
7.4.4 ANY INTERRUPTIONS IN THE ACCESSIBILITY TO THE SERVICE;
7.4.5 ANY DEFECTS IN THE SECURITY SYSTEM OR VIRUSES OR OTHER HARMFUL SOFTWARE COMPONENTS IN THE SERVICE;
7.4.6 ANY BREACH BT THE ADVERTISERS OF THE TERMS AND CONDITIONS OF THEIR USE OF THE SERVICE; OR
7.4.7 ANY ERROR IN THE IMPLEMENTATION OF THE LINKS ON THE WEBSITE OR FOR THE SPECIFIED FUNCTION OF THE LINKS;
UNLESS SUCH LOSS OR DAMAGES ARISE DUE TO THE GROSS NEGLIGENCE OF THE COMPANY.
7.5 IN NO EVENT SHALL THE COMPANY’S LIABILITY EXCEED 100% OF THE TOTAL REMUNERATION PAID TO THE PUBLISHER IN TERMS OF THIS AGREEMENT AS OF THE DATE OF THE CLAIM MADE BY THE PUBLISHER.
YOU HEREBY INDEMNIFY THE COMPANY AGAINST ANY LIABILITIES, PROCEEDINGS, COSTS, DAMAGES, LOSSES OR EXPENSES INCURRED BY THE COMPANY ARISING FROM THE CONTENTS OF THE WEBSITE (INCLUDING ANY LINKED WEBSITES ON THE WEBSITE WHICH ARE IN BREACH OF ANY OBLIGATIONS THE PUBLISHER MAY HAVE TO OTHER THIRD PARTIES), OR ANY INCORRECT INFORMATION GIVEN TO THE COMPANY BY THE PUBLISHER, OR ANY BREACH OF THIS AGREEMENT, ANY NEGLIGENT OR WRONGFUL ACT OF THE PUBLISHER, OR ANY IMPROPER, NEGLIGENT OR UNAUTHORISED USE OF THE SERVICE BY THE PUBLISHER, ANY TECHNICAL PROBLEMS OR LOSS OF DATA CAUSED BY THE PUBLISHER ON THE COMPANY WEBSITE OR ON ANY LINKED WEBSITE.
9 Term and termination
9.1 The Publisher is entitled to terminate this Agreement with immediate effect at any time by notice to the Company.
9.2 The Company reserves the right to terminate the Service on 30 days’ notice to the Publisher.
9.3 The Company is entitled to terminate this Agreement and/or suspend the Publisher from participating in the Service with immediate effect if:
9.3.1 the Company considers the content of the Website to be inappropriate in any way;
9.3.2 the Company is requested to do so, for any reason, by an Advertiser;
9.3.3 the Publisher acts fraudulently or illegally in any way or the Publisher generates or tries to generate Artificial Traffic to Linked Websites;
9.3.4 the Publisher breaches any of the provisions of this Agreement and fails to remedy such breach within 14 (fourteen) days of receipt of notice to remedy the breach;
9.3.5 the Publisher has not generated any Traffic for any rolling period of 90 days.
9.4 Upon suspension of the Publisher’s participation in the Service in respect of a particular Advertiser only, the Publisher shall immediately delete all links to that particular Advertiser’s Linked Website.
9.5 After termination, no remuneration will be paid to the Publisher, other than payments validly due to the Publisher in terms of this Agreement, which will be paid in accordance with the provisions of clause 4.
10.1 Our relationship and/or any dispute arising from or in connection with these terms and conditions of sale shall be governed by the laws of the Republic of South Africa. You agree to be subject to the exclusive jurisdiction of the South African courts.
10.2 Nothing in this Agreement shall create or be deemed to create, a partnership or relationship of employer and employee between the Company and the Publisher.
10.3 The Company hereby selects the address listed at the top of this agreement as its address for the service of all formal notices and legal processes in connection with these terms and conditions of sale (“domicilium”). You hereby select the address listed on the Publisher Application Form as your domicilium. Either party may change its domicilium to any other physical address by not less than 7 days notice in writing to the other party. Notices must be sent either by hand, prepaid registered post, telefax or email and must be in English. All notices sent –
10.3.1 by hand will be deemed to have been received on the date of delivery;
10.3.2 by prepaid registered post will be deemed to have been received 10 days after the date of posting;
10.3.3 by telefax before 16h30 on a business day will be deemed to have been received, on the date of successful transmission of the telefax. All telefaxes sent after 16h30 or on a day which is not a business day will be deemed to have been received on the following business day; and
10.3.4 by email will be deemed to have been on the date indicated in the “Read Receipt” notification. ALL EMAIL COMMUNICATIONS BETWEEN YOU AND US MUST MAKE USE OF THE “READ RECEIPT” FUNCTION to serve as proof that an email has been received.
10.4 You may not cede, assign or otherwise transfer your rights and obligations in terms of these terms and conditions of sale to any third party.
10.5 Any failure on the part of you or the Company to enforce any right in terms hereof shall not constitute a waiver of that right.
10.6 If any term or condition contained herein is declared invalid, the remaining terms and conditions will remain in full force and effect.
10.7 No variation, addition, deletion, or agreed cancellation of these terms and conditions will be of any force or effect unless in writing and accepted by or on behalf of the parties hereto.
10.8 No indulgence, extension of time, relaxation or latitude which any party (“the grantor”) may show grant or allow to the other (“the grantee”) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
10.9 These terms and conditions contain the whole agreement between you and the Company and no other warranty or undertaking is valid unless contained in this document between the parties.
11. I have read these terms and conditions and agree to be bound by them.