AFFILIATE SERVICE AGREEMENT

Between

THE GREAT BREAK (PTY) LTD
(Registration number: 2016/297403/07)

Hereinafter referred to as:
(“The Great Break Affiliates” or “The Great Break” or “the Company”)

With chosen domicilium citandi et executandi at:

78 Bland Street
Mossel Bay Central
Mossel Bay
6500
South Africa

and

“The Affiliate”

  1. INTRODUCTION:

1.1 It is recorded that the contents of this agreement are the complete Terms and Conditions of the Affiliate agreement which shall make the affiliate a member of the The Great Break (pty) LTD Affiliate Programme.

1.2 The Affiliate’s participation in the The Great Break (pty) LTD Affiliate Programme (“The Great Break (pty) LTD Affiliate Programme”) is indicated by accessing and utilizing any of the marketing material provided, creating of any links; tags; iFrames, accepting of any reward, bonus or commission whether contained in this agreement or elsewhere on our web site, and the Affiliate is deemed to have agreed to be bound by all the Terms and Conditions set out in this agreement.

1.3 These Terms and Conditions are valid, binding and enforceable against all persons that access and/or utilise any of the marketing material provided.

1.4 These Terms and Conditions set forth the entire understanding and agreement between the Affiliate and The Great Break (pty) LTD Affiliate Programme with respect to the subject matter hereof.

1.5 If the Affiliate does not wish to accept all the Terms and Conditions of this agreement please do not create a link to any of our merchant’s websites at any time. Please do not enrol if the Affiliate site is unsuitable, as we will immediately terminate the Agreement as set out in the Termination clause below.

1.6 If any provision of these Terms and Conditions is held to be illegal, invalid or unenforceable for any reason, such provision shall be struck out from these Terms and Conditions and the remaining provisions shall be enforced.

1.7 This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof.

  1. Definitions and Recitals

2.1 “We” and “us” refer to The Great Break (pty) LTD as cited in the heading of this agreement.

2.2 “The Affiliate” and/or “Webmaster” refers to the other party to the contract formed by the acceptance of these Terms and Conditions.

2.3 “Merchant” is defined as a company that has contracted us to manage, market, advertise and promote products, business, trade, supplies and the like on their behalf.

2.4 “Marketing Material” includes promotional material and any other material provided by us for the Affiliate to use, in order to generate leads/customers including but not limited to digital web or mobi banners, links, text links, iFrames, copy, icons.

2.5 “Customer” shall mean a person or entity that follows a link from the Affiliate site, e-mail or however directed, to a merchant of the The Great Break (pty) LTD Affiliate Programme.

2.6 “Parties” shall refer to us and the Affiliate.

2.7 “Visitors” shall mean users on the Affiliate site or other sites the Affiliate may not own but have legal access to and through which the Affiliate generate customers and leads.

2.8 “Approved Lead Source” means the various marketing channels which the Affiliate may use as also defined in 2.4.

2.9 “Region” means the region in which the relevant affiliate shall operate from.

2.10 “Lead” the first unique identification of an interested individual;

2.11 “Target” means the number of leads/visits/sales required per month, determined by each individual campaign.

2.12 “POPI” means the Protection of Personal Information Act, 4 of 2013, as amended from time to time.

2.13 “Lead-Purchaser” means the contracted company with which The Great Break (pty) LTD has a purchasing agreement.

2.14 “Raw Server Data” means the data collected and stored directly on our databases.

2.15 “Tracking Portal” means any software used by The Great Break (pty) LTD that allows the Affiliate to log in and track their leads and sales results.

2.16 “Billable Lead” a qualified lead received from the Affiliate which a Lead-Purchaser/Merchant/client pays The Great Break (pty) LTD for.

2.17 “Qualified Lead” means a lead which

2.17.1 As a minimum, contains the first name, surname, email address an mobile number of the relevant interested individual;
2.17.2 A Lead which is accepted and paid for by the Lead Purchaser;
2.17.3 includes a unique code specific to each Approved Lead Source;
2.17.4 Concerns a South African citizen or a citizen of the country of the relevant region for a relevant campaign.

2.18 “Qualified Sale” means a sale which

2.18.1 A sale whereby the Visitor has made an actual payment for the goods or services provided by the Merchant/Client/Lead-Buyer.
2.18.2 Where the Visitor has not reversed the sale in terms of their rights in the Consumer Protection Act, or any other act which protects their rights as a consumer.
2.18.3 Includes a unique code specific to each Approved Sale.

2.19 “Disqualified Lead” is a lead which:

2.19.1 Is not a qualified lead;
2.19.2 Are leads which were not accepted and not paid for by the Lead – Purchaser;
2.19.3 Any lead in which the lead/sale exercises his/her/their cooling off period in terms of the CPA;
2.19.4 has already been submitted to The Great Break (pty) LTD by another affiliate for the same Client and Campaign in the preceding 90 days or as may be varied from time to time on the Campaign Order;
2.19.5 was obtained fraudulently, in that the interested individual was incentivised and mislead to express interest in, or request to be contacted about, the products and/or services marketed by the Affiliate;
2.19.6 relates to an individual who is on DMASA’s Opt-Out List; or
2.19.7 relates to an individual who is on the Internal Opt-Out List.
2.19.8 Leads which are ultimately rejected and not paid for.

2.20 “Disqualified Sale” is a sale which:

2.20.1 Is not a Qualified sale;
2.20.2 Are sales which were not accepted and not paid for by the Client/Merchant/Lead-Buyer;
2.20.3 Any visitor in which the lead/sale exercises his/her/their cooling off period in terms of the CPA;
2.20.4 has already been submitted to The Great Break (pty) LTD by another affiliate for the same Client and Campaign in the preceding 90 days or as may be varied from time to time on the Campaign Order;
2.20.5 was obtained fraudulently, in that the interested individual was incentivised and mislead to express interest in, or request to be contacted about, the products and/or services marketed by the Affiliate;
2.20.6 relates to an individual who is on DMASA’s Opt-Out List; or
2.20.7 relates to an individual who is on the Internal Opt-Out List.
2.20.8 Sales which are ultimately rejected and not paid for.

2.21 “Commencement date” means the date of signature of this agreement.

2.22 “CPA” means the consumer protection act, 68 of 2009, as amended from time to time.

2.23 “API” means any application programming interface that automatically transmits leads or data directly to our servers.

2.24 “DMASA” The Direct Marketing Association of South Africa

2.25 “DMASA’s DNC List” DMASA’s database of individuals who have previously registered on the DMASA opt-Out Service and in terms of which such individuals have opted out of receiving direct marketing communications from members of DMASA;

2.26 “ECTA” the Electronic Communications and Transactions Act, 25 of 2002, as amended from time to time.

2.27 “FTC Endorsement Requirements” refers to the United States Federal Trade Commission 16 CFR Part 225.

2.28 “GDPR” refers to the General Data Protection Regulation (EU) 2016/679

2.29 This programme is used for the business of producing, marketing and promoting affiliate programs. This service is accessed through the use of a personal computer, tablet device, smartphone, internet enabled mobile phone, modem, mobile network and/or direct internet access.

  1. Duration

This Agreement shall commence on the Commencement Date and shall continue indefinitely or in accordance with the termination clause contained in this agreement.

  1. Grant of License

4.1 The Affiliate desire to obtain from us, and we agree to grant the Affiliate the non-exclusive right and license to advertise, market and promote the Service, in accordance with the following Terms and Conditions.

4.2 This agreement provides the Affiliate with the non-exclusive right to direct users (“Visitors”) from the Affiliate site or sites to a merchant’s websites, in return for the payment of commissions and referral bonuses as specified below.

4.3 We hereby grant to the Affiliate a non-exclusive, non-transferable license, during the term of this Agreement, to use our ‘ intellectual-property’, including but not limited to suppliers, partners and clients marks (licensed, in turn by us, from their owner) solely in connection with the display of the banners on the Affiliate site. This license cannot be sub-licensed, assigned or otherwise transferred by the Affiliate. The Affiliate right to use the marks is limited to and arises only out of this license to use the banners. The Affiliate shall not assert the invalidity, unenforceability, or contest the ownership of the marks in any action or proceeding of whatever kind or nature, and shall not take any action that may prejudice our or our licensor’s rights in the marks, render the same generic, or otherwise weaken their validity or diminish their associated goodwill or take or perform any actions not in accordance with the Terms and Conditions of this Agreement.

4.4 We reserve all other rights and licenses not expressly granted to the Affiliate herein.

  1. Relationship of Parties

Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. The Affiliate will have no authority to make or accept any offers or representations on our behalf. The Affiliate will not make any statement, whether on the Affiliate site or otherwise, that reasonably would contradict anything in this paragraph. The relationship of the Parties shall be governed by the terms of this Agreement and nothing contained herein shall be deemed to constitute a partnership between the Parties. The Parties shall not by reason of the actions of any one of them incur any personal liability as co-partners to any third party, and no Party shall be entitled or empowered to represent or hold out to any third party that the relationship between them is that of partnership.

  1. The Affiliate’s Rights and Obligations

6.1 The Affiliate shall provide the Services to The Great Break (pty) LTD in accordance with this agreement and any other reasonable requirements of The Great Break (pty) LTD notified to the Affiliate from time to time.

6.2 In providing the Services, the Affiliate shall (without limiting any other obligation under this Agreement):

6.2.1 comply with all Applicable Law;
6.2.2 undertake the Services in accordance with Good Industry Practice;
6.2.3 use only Approved Lead Sources and no other marketing channel; and
6.2.4 at all times ensure that it has appropriate measures, processes, procedures, and systems in place to ensure that unauthorized persons will not be able to access, disclose, process or share any information.

6.3 All copy and advertising/marketing collateral used by the Affiliate for or in connection with any Campaign (“The Great Break (pty) LTD Copy”) must be pre-approved by The Great Break (pty) LTD, failing which the Affiliate shall not be entitled to use same. Further, should the Affiliate wish to amend or change the The Great Break (pty) LTD prior written consent to any such amendments or changes.

6.4 If instructed to do so by The Great Break (pty) LTD, the Affiliate shall immediately update the The Great Break (pty) LTD Copy to reflect any amendments or changes requested by The Great Break (pty) LTD or The Great Break (pty) LTD’s clients.

6.5 The Affiliate may not use any The Great Break (pty) LTD Copy in connection with any other lead generation or marketing campaign in which it is involved.

6.6 The Affiliate shall immediately inform The Great Break (pty) LTD if the Affiliate will not, or suspects that it will not, be able to generate and submit a sufficient number of Leads to The Great Break (pty) LTD, as set out in clause 2.11.

6.7 The Affiliate is responsible for providing all Equipment and Personnel and obtaining all Authorisations, required to provide the Services.

6.8 The Affiliate assumes full responsibility for the actions of its Personnel in performing the Services and shall be solely responsible for their supervision, direction and control, payment of salary, workers’ compensation, disability benefits and the like.

6.9 The Affiliate shall immediately pause or stop any acting Campaign upon receiving a written instruction to this effect from The Great Break (pty) LTD (“Pause Instruction”). The Great Break (pty) LTD shall not be liable to pay any Fees to the Affiliate for Leads generated and submitted after receipt by the Affiliate of a Pause Instruction.

6.10 The Affiliate must ensure that:

6.10.1 it has an adequate number of suitable experienced and qualified Personnel available to render the Services;
6.10.2 inferior or defective Equipment is not used to render the Services;
6.10.3 the APIs used by the Affiliate will immediately submit Leads to The Great Break (pty) LTD as same are generated, such that Leads are passed on to The Great Break (pty) LTD instantaneously; and
6.10.4 each Lead generated and submitted to The Great Break (pty) LTD shall include a unique code specific to each Approved Lead Source.

  1. Our Rights and Obligations

7.1 We will register the Affiliate visitors and will track their activity. We reserve the right to refuse customers (or to close their accounts) if necessary to comply with any requirements we may periodically establish and/or comply with any laws.

7.2 We will track customers’ activities and will supply reports summarizing their activity, lead status and acquisition status where requested. The form, content and frequency of the reports may vary from time to time in our discretion. We will provide the Affiliate with remote online access to reports of customer activity and the referral fees generated.

7.3 We will pay the Affiliate referral fees (as set out below) on income we earn from purchases of goods or services by all legitimate customers after they open an account with a merchant.

7.4 We reserve the right, in our sole discretion, to amend and/or replace any of, or the whole of, the Terms and Conditions. Such amendments shall supersede and replace any previous Terms and Conditions by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures, and referral program rules. If any modification is unacceptable to the Affiliate, the Affiliate only recourse is to terminate this agreement. The Affiliate continued participation in the program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change. Each time the Affiliate access and/or utilize any of the marketing material provided, the Affiliate are deemed to have consented, by such access or utilization, to the Terms and Conditions, as amended and/or replaced by us from time to time.

  1. Unsolicited Communication

8.1 By agreeing to this agreement, the Affiliate is agreeing to create a unique link from the Affiliate site to a merchant site. The Affiliate may link to a merchant with marketing material. This is the only method by which the Affiliate may advertise on our behalf, unless agreed otherwise.

8.2 We will terminate this agreement immediately if there is any form of unsolicited communication (spamming) or if the Affiliate advertise our product or those of our merchants in any other way. The Affiliate shall not make any claims, representations, or warranties in connection with us or our merchants and the Affiliate shall have no authority to, and shall not, bind us or our merchants to any obligations.

8.3 The Affiliate agrees to add a disclosure to all the Affiliate Terms and Conditions informing the Affiliate users, customer and clients that their personal information the Affiliate collect on the Affiliate website, will be disclosed and sent to third parties who may further distribute the Affiliate information to their clients and customers, for the purpose of quotes and related advertisements and marketing materials.

8.4 The Affiliate recognises that The Great Break (pty) LTD has proprietary relationship with the third-party advertisers which provide Advertising Material via the The Great Break (pty) LTD Network and the Affiliate agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Publisher to be an advertising client and/or customer of The Great Break (pty) LTD (e.g., an advertiser which provides creative’s via The Great Break (pty) LTD, for purposes of offering products or services that are competitive with The Great Break (pty) LTD (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of the Affiliate membership in the The Great Break (pty) LTD network and for the 360-day period following termination of the Affiliate membership in the The Great Break (pty) LTD network, provided however, that the foregone restriction shall not apply to advertisers with whom the Affiliate already have a relationship prior to the placement of advertising on the Affiliate Media on behalf of such advertisers by The Great Break (pty) LTD, as explicitly proven by documented evidence of such prior relationship provided by the Affiliate to The Great Break (pty) LTD immediately upon The Great Break (pty) LTD’s written request.

  1. Promotional and Marketing Material

9.1 By agreeing to participate in a merchants’ The Great Break (pty) LTD Affiliate Programme program, the Affiliate are agreeing to download marketing material including banners, text or other promotional materials and place it on the Affiliate site or that of a 3rd party authorizing access thereto. These methods are by which the Affiliate may advertise on our merchants’ behalf. We will terminate this agreement immediately if there is any form of spamming or if the Affiliate discredit our merchants through false advertising, written or uttered words. The Affiliate shall not make any claims, representations, or warranties in connection with us or our merchants and the Affiliate shall have no authority to, and shall not, bind us or our merchants to any obligations.

9.2 Without our prior written approval, the Affiliate will only use our approved marketing material and will not alter their appearance nor refer to us in any promotional materials unless agreed to in writing beforehand. The appearance and syntax of the hypertext transfer links are designed and designated by us and constitute the only authorized and permitted representation of our merchants’ sites.

9.3 The Affiliate will not knowingly benefit from known or suspected traffic not generated in good faith whether or not it actually causes Merchant damage.

9.4 Should fraudulent activity arise through a person directed to a site via the Affiliate link, we retain the right to retract the commissions paid to the Affiliate at any time. Our decision in this regard will be final and no correspondence will be entered into. We reserve the right to retain all amounts due to the Affiliate under this Agreement if we have reasonable cause to believe that such traffic has been caused with the Affiliate knowledge. Even if the Affiliate have not knowingly generated such traffic, we reserve the right to withhold referral fees with respect to such traffic.

9.5 The Affiliate will be solely responsible for the development, operation, and maintenance of the Affiliate site and for all materials that appear on the Affiliate site. For example, the Affiliate will be solely responsible for ensuring that materials posted on the Affiliate site are not defamatory or otherwise illegal. We disclaim all liability for these matters. Further, the Affiliate will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance, and contents of the Affiliate site.

9.6 Rules around email marketing

9.6.1 The Affiliate are to at all times abide by the generally accepted marketing best practices and standards.
9.6.2 The Affiliate will comply with anti-SPAM laws and regulations.
9.6.3 The Affiliate agree to de-duping against the DMASA Do not contact list, when promoting South African offers. Should the Affiliate require assistance with this please contact us on jared@thegreatbreak.com
9.6.4 The Affiliate may not conduct email marketing in a way that damages our reputation.

  1. Term

10.1 The term of this Agreement will begin when the Affiliate downloads marketing material including Product banners and any links from our site and will continue indefinitely unless and until either party notifies the other in writing that it wishes to terminate the Agreement, in which case this Agreement may be terminated immediately.

10.2 This Agreement may be terminated unilaterally by us at any time, for any reason, whatsoever.

10.3 For purposes of notification, delivery of a notice of termination via e-mail, facsimile and/or delivery by hand is considered a written and immediate form of notification

10.4 Commission will not be honoured for earnings generated by immediate family members of affiliates.

  1. Termination

11.1 We may terminate this agreement if we determine (at our sole discretion) that the Affiliate site or sites the Affiliate are using are unsuitable.

11.2 Unsuitable sites may include those that: are aimed at children, promote sexually explicit materials, promote violence, promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities, or violate intellectual property rights.

11.3 Upon termination:

11.3.1 All rights and licenses given to the Affiliate in this Agreement shall immediately terminate.
11.3.2 The Affiliate must remove our merchants’ banner/s from the Affiliate site and disable any links from the Affiliate site to theirs and ours.
11.3.3 The Affiliate will be entitled only to those unpaid referral fees, if any, earned by the Affiliate on or prior to the date of termination. The Affiliate will not be entitled to referral fees occurring after the date of termination.
11.3.4 If the Affiliate has failed to fulfil the Affiliate obligations and responsibilities, we will not pay the Affiliate the referral fees otherwise owing to the Affiliate on termination.
11.3.5 The continuation of purchases after termination by customers referred to our merchants by the Affiliate will not constitute a continuation or renewal of this Agreement or a waiver of termination.
11.3.6 The Affiliate will cease all uses of any intellectual property including but not limited to trade names, trademarks, service marks, logos and other designations of our merchants and us.
11.3.7 The Affiliate and us will be released from all obligations and liabilities to each other occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination, as set out in this Agreement.
11.3.8 Termination will not relieve the Affiliate from any liability arising from any breach of this Agreement that occurred prior to termination.

11.4 Brand bidding is a serious matter. We therefore have set out limitations to advertising on behalf of any of our products or those of our merchants. Please be advised that if the Affiliate are found brand bidding, we reserve the right to withdraw the Affiliate commissions paid to the Affiliate at any time without any correspondence or warning and ultimately the termination of the Affiliate account:

11.4.1 The Affiliate may not, under any circumstances, use domain names utilized by the The Great Break (pty) LTD Affiliate Programme and its merchants. The Affiliate may therefore not use domain names, brand names or any bid made by the Affiliate party on keywords, search terms including “The Great Break (pty) LTD Affiliate Programme” and without limitations.
11.4.2 If the Affiliate are found scraping text from any the sites mentioned in 11.4.1.
11.4.3 If the Affiliate are found cloning any of the sites mentioned in 11.4.1.

  1. Confidential Information

12.1 During the term of this Agreement, the Affiliate will acquire access to the information disclosed by each other (hereinafter collectively referred to as the “Confidential Information”) relating to inter alia:

12.1.1 trade secrets and information which, before such information becomes public, is confidential;
12.1.2 documents marked confidential or which either Party has been informed is confidential or which either Party might reasonably expect the other Party to regard as confidential or information which has been provided to the receiving party in confidence by other persons, whether or not in document form, electronic form, computer disk, or tape;
12.1.3 technology developed by the disclosing party;
12.1.4 computer programmes, software and hardware, source and object codes in respect thereof;
12.1.5 business dealings of each Party, including but not limited to, business plans or dealings relating to current activities, current and future plans, relating to all or any development, including the timing of all or any such matters;
12.1.6 A Party’s business contacts and client lists
12.1.7 plans and procedures;
12.1.8 financial information and plans relating to a Party and its clients;
12.1.9 marketing and marketing strategy and tactics;
12.1.10 training and skill;
12.1.11 methodology and systems;
12.1.12 techniques and methods;
12.1.13 technical designs, specifications of a Party’s products, formulae;
12.1.14 product information;
12.1.15 research activities;
12.1.16 business know-how;
12.1.17 the know-how, processes, techniques and strategies developed, used and applied by a Party in the development, marketing, selling of their products and services;
12.1.18 knowledge of and influence over a Party’s clients, customers, suppliers and other business associates;
12.1.19 knowledge of the group’s strategic plans;
12.1.20 the contractual arrangements between a Party and its business associates;
12.1.21 the financial details of a Party’s relationship with its business associates;
12.1.22 the names of prospective customers of a Party and its requirements;
12.1.23 the computer information systems and software applications developed and/or sold and/or installed and commissioned by a Party including the computer languages and software source codes developed and used by a Party;
12.1.24 the know-how, processes, techniques and strategies developed, used and applied by a Party in the development, marketing and selling of its products and services; and
12.1.25 other matters which relate to the business of a Part.;

12.2 For purposes hereof, “Confidential Information” includes any information in written, graphic, oral, tangible, intangible, electronic or other form relating to the know-how, formulae, statistics, processes, business plans, business methods, shareholding, marketing, pricing, trading and merchandising methods and information, research and product development, management know-how, processes and techniques, business strategies, promotional plans, specifications, records, drawings, reports, samples, financial information, financial models, inventions, long-term plans, user and consumer data, databases and profiles, computer software, contractual business and financial arrangements with shareholders and with third parties, trade secrets, information regarding the personnel and the directors and other employees and agents and any other confidential information which relates to the business and or to any other aspect of The Great Break (pty) LTD in respect of which information is not readily available in the ordinary course of business to a competitor of a Party, but excluding the Excluded Information

12.3 Any and all Confidential Information obtained by either party (the “Receiving Party”) in terms of or arising from the implementation of this Agreement and/or the Intellectual Property of us shall be treated as highly confidential by the Receiving Party and shall not be used, divulged or permitted to be divulged to any person not being a party to this Agreement without the prior written consent of the other party but excluding the Excluded Information save that:

12.4 the Receiving Party shall be entitled to disclose such information to such of its employees (which shall include any of its directors) and/or advisers who need to know the same for the purposes of implementing this Agreement. Before revealing such information to any such employees and/or advisers, the Receiving Party undertakes to procure that the employees and/or advisers are aware of the highly confidential nature of the information being made available to them; and

12.5 “Excluded Information” is any information that:

12.6 can be shown by written documentation to be in the public domain at the time of disclosure or later becomes publicly available other than through breach of this agreement and could be obtained by any person with no more than reasonable diligence;

12.6.1 any information which is required to be furnished by law or by any regulatory body or stock exchange may be so furnished, provided that the Receiving Party notifies the other party immediately on becoming aware of the requirement for any such disclosure, and the Receiving Party shall use its best endeavours to timeously co-operate with and assist the other party in any attempts by the other party to prevent or limit such disclosure.

12.7 We reserve our rights to all Confidential Information supplied to the Affiliate, including the proprietary and novel features contained therein, and the Affiliate acknowledge that we are the sole owner thereof.

12.8 This clause 8 shall survive termination of this Agreement for any reason whatsoever.

  1. Payment

13.1 We will pay the Affiliate referral fees on a monthly basis, within 45 (forty-five) business days of each month for any fees earned by the Affiliate in the previous month provided an invoice is issued for the previous months commission earned.

13.2 It is recorded that the Affiliate shall have a target set forth which it should strive to obtain on a monthly basis. In light hereof the parties agree, expressly to the following:

13.2.1 that The Great Break (pty) LTD shall only pay the Affiliate for Billable Leads, Qualified Leads, or Qualified Sales received from the previous month. The Great Break (pty) LTD shall not be obliged to pay the affiliate for any Disqualified Leads or Disqualified Sales.

13.2.2 In the event that there is a discrepancy between the Raw Server data and the data shown on the tracking portal, then the Raw Server data shall be used to calculate the amount of leads.

13.2.3 That The Great Break (Affiliates (PTY) LTD shall not be held liable to pay for leads/sales for which they have not been paid for by the Lead-Purchaser, and that the Affiliate cannot hold The Great Break (pty) LTD or the Merchant liable for any losses incurred, … etc … etc… (Handre please add here to cover our asses and the Merchants ass is section 14 enough?

13.3 Payments shall be affected by us through the following methods mentioned in 13.4 and 13.5. below. Please note that we retain the right to request personal information from the Affiliate itself relating to the authorisation of the account. Such information may include identification documents and/or company registration and Vat documents.

13.4 If the Affiliate is a local affiliate or foreign affiliate, whose bank account is within the Republic of South Africa, we will affect payment by way of electronic transfer of funds into a bank account nominated in writing by the Affiliate.

13.5 If the Affiliate is a local or foreign affiliate whose bank account is outside of the Republic of South Africa:

13.5.1 in order to ensure the most efficient, prompt payment and avoid unnecessary charges, we recommend affiliates choose PayPal as their payment method of choice to receive commissions. Any fees levied by PayPal will be to the Affiliate’s account.

13.5.2 Should the Affiliate chosen payment method, however, be into a bank account which is outside of the Republic of South Africa, a minimum charge of R230 may be applicable to perform payment, which will be deducted from the Affiliate commissions due. The Affiliate further notes that date of payment may also be negatively impacted, as international wiring of fund can take longer, and the Affiliate may not hold us liable for such delays. Any further fees and bank charges, including charges from the receiving bank, foreign exchange conversion fees, etc. will be for the Affiliate’s account.

13.6 Where the Affiliate elect to receive commission payments into a local bank account, commission balances of less than R 250.00, will be withheld until such time as the balance exceeds R 250.00 at the end of the month. Where the Affiliate elect to receive commission payments into an international bank account, current international conversion rates will need to be considered, and commission payments under a threshold of fixed transfer costs will be applied to minimum rates withheld until such balance exceeds such fixed costs.

  1. Indemnity

14.1 The Affiliate shall defend, indemnify, and hold our merchant’s, lead-buyers, and their electronic cash provider, their directors, officers, employees, and representatives harmless from and against any and all liabilities, losses, damages, and costs, including reasonable attorney’s fees, resulting from, arising out of, or in any way connected with:

14.2 any breach by the Affiliate of any warranty, representation, or agreement contained in this Agreement,

14.3 the performance of the Affiliate duties and obligations under this Agreement,

14.3.1 the Affiliate negligence or
14.3.2 any injury caused directly or indirectly by the Affiliate negligent or intentional acts or omissions, or the unauthorized use of our banners and link or this referral program.

  1. Disclaimers

We make no express or implied warranties or representations with respect to the referral program, or referral fee payment arrangements (including, without limitation, their functionality, warranties of fitness, merchantability, legality, non-infringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error-free and will not be liable for the consequences of any interruptions or errors.

16 Limitation of Liability

16.1 We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the referral program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total referral fees paid or payable to the Affiliate under this Agreement.

16.2 Nothing in this Agreement shall be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement. Our obligations under this Agreement do not constitute personal obligations of our directors, officers or shareholders and/or members. Any liability arising under this Agreement shall be satisfied solely from the referral fee generated and is limited to direct damages.

17 Cession of rights

The Affiliate may not assign or cede this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on and enforceable against the Affiliate and us and our respective successors and assigns.

18 Non-Waiver

18.1 No amendment or consensual cancellation of this Agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement and no settlement of any disputes arising under this Agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this Agreement or of any agreement, bill of exchange or other document issued pursuant to or in terms of this Agreement shall be binding unless recorded in a written document signed by the Parties (or in the case of an extension of time, waiver or relaxation or suspension, signed by the Party granting such extension, waiver or relaxation). Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.

18.2 No extension of time or waiver or relaxation of any of the provisions or terms of this Agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this Agreement, shall operate as an estoppel against any Party in respect of its rights under this Agreement, nor shall it operate so as to preclude such Party thereafter from exercising its rights strictly in accordance with this Agreement.

18.3 To the extent permissible by law no Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement and/or whether it was negligent or not.

  1. Remedies

Our rights and remedies hereunder shall not be mutually exclusive, i.e., the exercise of one or more of the provisions of this Agreement shall not preclude the exercise of any other provision. The Affiliate acknowledge, confirm, and agree that damages may be inadequate for a breach or a threatened breach of this Agreement and, in the event of a breach or threatened breach of any provision of this Agreement, the respective rights and obligations of the parties may be enforceable by specific performance, injunction, or other equitable remedy. Nothing contained in this Agreement shall limit or affect any of our rights at law, or otherwise, for a breach or threatened breach of any provision of this Agreement, it being the intent of this provision to make clear that our respective rights and obligations shall be enforceable in equity as well as at law or otherwise.

  1. Non-circumvention

The Affiliate is not allowed to generate Leads for a Client they generated Leads for in terms of this agreement, neither directly for the Client or indirectly via a third party, for a period of 6 months from date of last payment in terms of this agreement.

  1. Severability/Waiver

Any provision in this Agreement which is or may become illegal, invalid or unenforceable shall be ineffective to the extent of such prohibition or unenforceability and shall be treated pro non scripto and severed from the balance of this Agreement, without invalidating or affecting the remaining provisions of this Agreement.

  1. Legal and Compliance

22.1 This Agreement shall be governed by the laws of the Republic of South Africa.

22.2 In choosing to join our Affiliate programme The Affiliate shall be responsible for complying with all laws and regulations that are applicable to the Affiliate duties and obligations in terms of this Agreement and any further Advertising terms that may be specific to an Advertisers campaign.

22.3 In light of this, The Affiliate therefore warrant, represent and undertake that the Affiliate will comply with any applicable laws, including but not limited to all the provisions and requirements of Consumer Protection, Data Protection and Privacy laws which may be in force from time to time.

  1. Entire contract

This Agreement contains all the express provisions agreed on by the Parties regarding the subject matter of the Agreement and supersede and novate in its entirety any previous understandings or agreements between the Parties in respect thereof, and the Parties waive the right to reply on any alleged provision not expressly contained in this Agreement.

  1. COMPLIANCE WITH POPI

24.1 The affiliate acknowledges and agrees that, in providing the services, it will collect information. In this regard, the affiliate represents, warrants and undertakes to:

24.1.1 only generate Leads with the necessary consent as defined in POPI;
24.1.2 protect and treat the information in compliance with POPI;
24.1.3 use the information solely for purposes if this agreement and the services;
24.1.4 not process, disclose or share (and to procure that its related person does not process, disclose or share, the information with any other person (other than The Great Break (pty) LTD) without the prior consent of the interest individual.

24.2 The Parties hereby warrant in favour of each other that they will at all times strictly comply with POPI and all applicable laws relating to the protection of information.

  1. Compliance with the FTC Endorsement Policies

25.1 Should the Affiliate market a product to an audience based in the United States of America, it is required to fulfil its obligations in terms of the FTC Endorsement Compliance. Accordingly, we require all The Great Break Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliate Sites (e.g. directories, review/rating websites, blogs, and other websites) and any email or collateral that provide an endorsement or assessment of The Great Break’s Products and Services must prominently disclose the fact that you receive compensation for Referred Customers. The Affiliate agrees to hold The Great Break (pty) LTD harmless for any breach of the FTC Endorsement Policies.

  1. General Data Protection Regulation (GDPR)

26.1 Should the Affiliate market a product to an audience based in the European Union, it is required to fulfil its obligations in terms of the General Data Protection Regulation (EU) 2016/679. Accordingly, we require all The Great Break Affiliates to comply with applicable laws, regulations and guidelines concerning advertising, marketing, data collection and information protection. The Affiliate agrees to hold The Great Break (pty) LTD harmless for any breach of any GDPR regulations or stipulations.

  1. PENALTIES

25.1 Without derogating from the generality of clause 20, the Affiliate will be liable to pay penalties to The Great Break (pty) LTD in the following circumstances:

25.1.1 if the Affiliate uses copy or advertising/marketing collateral which has not been approved by The Great Break (pty) LTD, as contemplated in clause 6.3, of if the Affiliate does not update the The Great Break (pty) LTD Copy as contemplated in clause 6.4, then:

25.1.1.1 in relation to a first offense, no penalty will be payable to The Great Break (pty) LTD, but The Great Break (pty) LTD will issue a written warning to the Affiliate;

25.1.1.2 in relation to a second offense, the Affiliate shall, on first demand, pay an R10 000 (ten thousand rand) penalty to The Great Break (pty) LTD;

25.1.1.3 relation to a third offence, the Affiliate shall, on first demand, pay a R20 000 (twenty thousand rand) penalty to The Great Break (pty) LTD;

25.1.1.4 in relation to a fourth offense (and subsequent offenses), the Affiliate shall, on first demand, pay an R50 000 (fifty thousand rand) penalty to The Great Break (pty) LTD;

25.1.1.5 and, in all of the above instances, no Fees shall be payable for or in connection with any Leads generated or submitted as part of the relevant Campaign;

25.1.2 if the Affiliate sends marketing communication to an individual who is on the DMASA’s DNC List, the Affiliate shall, on first demand, pay a R10 000 (ten thousand rand) penalty (per incident) to The Great Break (pty) LTD, provided that no such penalty shall be imposed if the relevant individual only registered on the DMASA’s DNC List after the date on which the affiliate ran their data against the DMASA’s DNC List;

25.1.3 If the Affiliate does not handle complaints in accordance with clause 27 and does not contact Aggrieved Individuals, or provide written reports to The Great Break (pty) LTD, as contemplated in clause 27, the Affiliate shall, on first demand pay an R10 000 (ten thousand rand) penalty (per incident) to The Great Break (pty) LTD.

25.2 The Parties record and agree that, for the purpose of clause 25.1.1, The Great Break (pty) LTD shall be entitled to regard all Leads/Sales generated and submitted as part of a Campaign to have been generated with the incorrect copy or advertising/marketing collateral, and the onus shall be on the Affiliate to prove otherwise. In this regard, the Affiliate shall be required to provide sufficient evidence as to the exact number of leads what was generated with the incorrect copy or advertising/marketing collateral.

  1. DISPUTE RESOLUTION

26.1 In the event of there being any dispute or difference between the Parties arising out of this Agreement, such dispute or difference shall, notwithstanding anything to the contrary in this Agreement, first be referred to the senior management of the Parties for resolution. If said matter cannot be resolved by the senior management of the Parties within a period of 10 (ten) days from the date on which the matter was referred to them, the matter shall be referred to arbitration. In accordance with clause 25, in which event the said dispute or difference shall on written demand by any Part be submitted to arbitration in Johannesburg in accordance with the Expedited Rules of AFSA.

26.2 The arbitrator is to be appointed by agreement between the Parties. If the Parties fail to agree and appoint the arbitrator within 10(ten) days of referral to arbitration, then the appointment shall be made, upon request of any Party, by the Chairman of AFSA or its equivalent.

26.3 The arbitrator’s award shall be final and binding on the Parties.

26.4 Notwithstanding anything to the contrary contained in this clause 26, no Party shall be precluded from instituting any injunctive or similar proceedings in any appropriate court of competent jurisdiction and, if successful, being granted appropriate injunctive relief.

26.5 This clause 26 will continue to be binding on the Parties notwithstanding the expiry or termination of the Agreement.

27 COMPLAINTS:

27.1 The Parties record and agree that the Affiliate shall be responsible for handling all complaints received from individuals (“Aggrieved Individual”) arising from or in connection with any Campaign and/or the Services.

27.2 The Affiliate shall telephonically contact any Aggrieved Individual to discuss and understand the Aggrieved Individual’s complaint, and shall provide The Great Break (pty) LTD with a written report detailing the complaint and how it has been resolved:

27.1.1 within 24 hours of the complaint having been raised, subject to clause

27.1.2 The API’s used by the Affiliate will immediately submit Leads/Sales to The Great Break (pty) LTD as same are generated, such that Leads are passed on to The Great Break (pty) LTD instantaneously; and

27.1.3 The API’s used by the Affiliate will immediately submit Leads to The Great Break (pty) LTD as same are generated, such that Leads are passed on to The Great Break (pty) LTD instantaneously.

28 FORCE MAJEURE

28.1 For the purpose of this Agreement, the expression “Event of Force Majeure” means, in respect of a Party, any event or circumstance of combination of events or circumstances occurring after the Signature Date, the occurrence of which is beyond the reasonable control (direct or indirect) of, and could have not been avoided, by steps which might reasonably be expected to have been taken by such Party acting as a reasonable and prudent party.

28.2 Should any Party (“Affected Party”) be prevented from fulfilling any of its obligations in terms of this Agreement because of an Event of Force Majeure then:

28.2.1 those obligations shall be deemed to have been suspended to the extent that, and for so long as the Affected Party shall so be prevented from fulfilling them and the corresponding obligations of the other Party (“Unaffected Party”) shall be suspended to the corresponding extent;

28.2.2 the Affected Party shall promptly notify the Unaffected Party in writing of such Event of Force Majeure, and such notice shall include an estimation of the approximate period for which the suspension in terms of clause 28.2.1 will endure. Such estimate shall not be binding on the Affected Party; and

28.2.3 the duration of any period in which any Services affected by the Event of Force Majeure shall have been agreed to be performed, as well as each period within which, and each date by which, any obligation shall be required to be performed in terms of this Agreement, shall be extended or postponed, as the case may be, by the period of suspension in terms of clause 28.2.1.

28.3 In the event that the Affected Party shall partially or completely cease to be prevent from fulfilling its obligations by the Event of Force Majeure, the Affected Party shall immediately give written notice to the Unaffected Party of such cessation, and the Affected Party shall, as soon as possible, fulfil its obligations which shall previously have been suspended; provided that, in the event, and to the extent that, fulfilment shall no longer be possible or the Unaffected Party shall have given written notice that it no longer requires such fulfilment, the Affected Party shall not be obliged to fulfil its suspended obligations, and the Unaffected Party shall not be obliged to fulfil its corresponding obligations.

28.4 If the Affected Party is unable to perform any of its obligations in terms of this Agreement for a period of more than 30 Business Days as a result of any Event of Force Majeure, the Unaffected Party shall be entitled to cancel this Agreement by giving 15 Business Days’ written notice to that effect to the Affected Party.

28.5 Subject to clause 28.4, in the event that the Affiliate, as the Affected Party, shall be unable to perform any of the Services in terms of this Agreement at any time as a result of an Event of Force Majeure, The Great Break (pty) LTD, as the Unaffected Party, shall be entitled but not obliged to procure the relevant Service from any third party for so long as the Affected Party shall be unable to perform such Service.

29 COSTS

29.1 Each party shall bear that Party’s own legal costs and disbursements of and incidental to the negotiation, preparation, settling, signing and implementation of this agreement.

29.2 Any costs, including all legal costs on attorney and own client basis and VAT, incurred by a Party arising out of or in connection with a breach by another party shall be borne by the Party in breach.

30 Independent Investigation

THE AFFILIATE ACKNOWLEDGES THAT THE AFFILIATE HAS READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. THE AFFILIATE UNDERSTANDS THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH THE AFFILIATE WEB SITE. THE AFFILIATE HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THIS REFERRAL PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT