TERMS AND CONDITIONS - 28 June 2021
By checking the "Accept" or similar language box below, you agree that the effective date of the applicable Publisher Service Agreement(s) is the date on which you check such below box.
OfferForge Publisher Service Agreement
This Publisher Service Agreement ("Agreement") is made by and agreed to between OfferForge (Proprietary) Ltd, registration number 2018/279085/07, domiciled at 5 Ensete Plate, Magalieskruin X27, Pretoria, 0159, South Africa ("OfferForge") and you, referring to the entity named as such on the Publisher Application Form, submitted by you to OfferForge when applying for participation in OfferForge, or as amended by you during your continued participation ("You").
Description of the Service
As an application service provider, OfferForge facilitates "Performance Marketing Programs" by providing services ("Network Service") via the Internet. A "Performance Marketing Program" ("Program") is where a person, entity, affiliate or its agent, operating "Web site(s)" (internet domain, or a portion of a domain) and/or other promotional methods to drive traffic to another's Web site or Web site content ("Publisher") may earn financial compensation ("Payouts") for "Transactions" (actions by Visitors as defined by the Advertiser) referred by such Publisher via an action made by a "Visitor" (any person or entity that is not the Publisher or the Publisher's agent) through an Internet connection ("Link") to a Web site or Web site content operated by another person or entity ("Advertiser") from an Advertiser authorized promotional method used by such Publisher. The Advertiser compensates the Publisher, in accordance with this Agreement and the Program Payout specifications.
1. Participation in Programs.
(a) Acceptance by Advertiser. During this Agreement You may apply to Advertiser Programs for the opportunity to earn Payouts by promoting Advertisers in accordance with the Advertiser's Program terms and complying with this Agreement. Upon approval by the Advertiser for acceptance into its Program, You may display (and remove) Links to Advertiser's Web site or Web site content in accordance with the Advertiser's Program terms and this Agreement. An Advertiser's acceptance of You extends only to the entity, or individual, that enters into this Agreement with OfferForge.
(b) Program Terms. The details of an Advertiser's Program shall be available through the Network Service. Transactions qualifying for a Payout are defined by the Advertiser. Advertisers may change any Payout rate upon no less than 7 days written notice through the Network Service with effect from the 8th day (or such later date as specified by Advertiser).
(c) Additional Terms. Publishers and Advertisers may enter into direct contractual relationships through an additional custom terms agreement hosted by OfferForge and/or other agreement(s) ("Custom Terms Agreement"). It is Your obligation to review and to either accept or decline such Custom Terms Agreement when one is presented to You. If accepted by You, compliance with the Custom Terms Agreement, as applicable, is solely Your responsibility. The terms and conditions of the Custom Terms Agreement, as applicable, shall apply only with respect to Your relationship with that particular Advertiser. Nothing contained in a Custom Terms Agreement, as applicable, may conflict with the terms and conditions contained in this Agreement. In the case of such conflict, this Agreement shall control.
(d) Prohibited Uses of Links.
(i) Locations. You may not place Links to an Advertiser's Web site or Web site content in any prohibited media such as unsolicited email, spam, link farms, counters, chatrooms, or guestbooks. Publishers using social media, instant messages, push, native or similar Internet resources must apply for and be granted written acceptance by OfferForge and the Advertiser prior to commencing any advertising.
(ii) Non-Bona Fide Transactions. You must promote Advertisers such that You do not mislead the Visitor, and such that the Links deliver bona fide Transactions by the Visitor to Advertiser from the Link. You shall not cause any Transactions to be made that are not in good faith, including, but not limited to, using any device, program, robot, Iframes, or hidden frames. You may or may not be compensated for Transactions where You or Your agent are the Visitor. Multiple Leads from the same individual, entity or IP address may be considered non-bona fide Transactions. You shall not earn Payouts for non-bona fide Transactions.
(iii) Infringement. None of Your promotional activities may infringe an Advertiser's proprietary rights (including but not limited to trademark rights), OfferForge's proprietary rights, or a third party's proprietary rights.
(e) Updating Links.
If Links to Advertiser are not dynamically updated through the Network Service, upon notification You are obligated to update an Advertiser's Links in order to earn Payouts.
You hereby understand, acknowledge and accept that OfferForge, OfferForge systems, OfferForge partners' systems and/or third party systems may and has/have the right granted by You to send emails and other communications to You on behalf of OfferForge, Advertisers, and other OfferForge partners and affiliates, including solicitation and service solicitation emails. You may have the ability to change some of Your email settings and preferences.
2. Publisher Obligations to OfferForge.
(a) Accurate, Up-to-Date Information.
You agree to provide OfferForge and Advertiser with accurate information about You and Your promotional methods, and to maintain up-to-date "Account" information (such as contact information, Web sites used, etc.). In Your Account, You must accurately, clearly and completely describe all promotional methods by selecting the appropriate descriptions and providing additional information when necessary. Some promotional methods will be designated by the system as "special". Special programs are linked to promotional methods and practices considered unique and require manual approval and acceptance by the Advertiser. OfferForge reserves the right to define any program as special.
(b) Use of Links.
(c) Promotional Methods.
You represent and warrant that You will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with applicable laws including The ECT Act (Electronic Communications and Transactions Act 25 of 2002 and the Protection of Personal Information Act, 4 of 2013, (“POPIA”) coming into effect on the 1st of July 2021 and have familiarised yourself with the acts and their requirements.
Pop up/unders must honor the OfferForge Publisher Code of Conduct requirements (as such requirements may be modified from time to time), including but not limited to: (i) installation requirements, (ii) enduser agreement requirements, (iii) subid5=POP requirements, (iv) requirements prohibiting usurpation of a Transaction that might otherwise result in a Payout to another Publisher (e.g. by purposefully detecting and forcing a subsequent click-through on a link of the same Advertiser) and (v) non-interference with competing advertiser/ publisher referrals.
(d) POPI Act COMPLIANCE and transmission of collected consumer data to OfferForge.
You warrant that you will comply with provisions of the Protection of Personal Information Act, 4 of 2013, (“POPIA”) coming into effect on the 1st of July 2021 and have familiarised yourself with the act and its requirements.
You represent and warrant that You will not modify our Web Tracking Code provided to you to collect personally identifiable information of Visitors without their consent and then transmit this information to OfferForge.
Where you collect Personally Identifiable Information from your site visitors in forms on your website, which you securely transmit to OfferForge via API or other electronic means for processing, you are obligated to:
- (i)obtain express consent from your visitor for the collection, processing and transmission of their personal information for the purposes stated.
- (ii)disclose that you will be transmitting the data to independent parties in order to fulfil the consumer’s request.
- (iii)capture and store timestamp, IP and visitor consent to prove opt-in.
- (iv)maintain an up-to-date opt-in register of your subscribers including the method of opt in, date and time of consent, products consented to and a copy of consent wording.
- (v)notify us within 24 hours of any opt-out requests or complaints.
(f) Applicable Codes and Code Maintenance. In order for OfferForge to record the tracking of Visitors' Transactions resulting from clicks on Links to Advertisers promoted by You, You must include and maintain a OfferForge "Tracking Code" within the Advertiser's Links. All Advertiser Links and all advertisements ("Ad Content") must be in a Network Service compatible format.
(g) Usage and Security of Account. You shall be responsible for all usage and activity on Your account and for loss, theft or unauthorized disclosure of Your password (other than through OfferForge's negligent or willful conduct or omission). You shall provide OfferForge with prompt written notification of any known or suspected unauthorized use of Your Account or breach of the security of Your Account.
3. OfferForge's Services.
(a) Tracking Transactions and Payouts. OfferForge shall determine (where possible) actual Payouts that should be credited to Your Account. OfferForge may, in OfferForge's sole discretion, apply an estimated amount of Payouts, if: (i) You are referring Visitors to Advertiser as verified by clicks through Links to Advertiser with OfferForge Tracking Code, (ii) where there is an error in Advertiser's transmission of Tracking Code data to OfferForge, and (iii) where OfferForge is able to utilize a historical analysis of Your promotion of Advertiser to determine an equitable amount of estimated Payouts.
(b) Charge-backs. An Advertiser may apply, or OfferForge may apply, a debit to Your Account in an amount equal to a Payout previously credited to Your Account in circumstances of :
(i) product returns; (ii)duplicate entry or other clear error; (iii) non-bona fide Transactions; (iv) non-receipt of payment from, or refund of payment to, the Visitor by the Advertiser; or (v) Publisher failure to comply with Advertiser's Program terms or other agreement with Advertiser ("Charge-back"). Charge-backs may be applied to Your Account at any time, including previous payment cycles.
(c) Access to Tracking and Reporting Tools. OfferForge shall provide You with access to tracking and reporting tools, and to support services. From time to time OfferForge may offer optional services for a fee. Fees for such optional services are at OfferForge's then-current published rates or as may be quoted by OfferForge, and are payable in advance or may be off-set against Your positive Account balance (at OfferForge's discretion). Tracking detail regarding Visitor Transactions is not available on a real-time basis for all Advertisers and there may be reporting delays regarding Transactions for some Advertisers. OfferForge may make available, for fees that OfferForge shall publish from time-to-time, enhanced reporting capabilities and other services that are not included in the standard Network Service.
(d) Support. Support for your program is available on-line through the "Support" area in the OfferForge Account Manager, which allows You to categorize and describe Your issue. Online help also allows You to check the status of all issues through the "Check Question Status" feature. Phone support may also be available during operating hours, except holidays.
(e) Facilitating Payment of Payouts. Subject to other provisions in this Agreement, OfferForge pays 45 days in arrears of each period. OfferForge shall prepare an invoice on behalf of You at the end of each month, in respect of the payout 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.
OfferForge shall credit Your Account with a Payout for each qualifying Transaction in accordance with the Advertiser's Payout rate and Program terms for the relevant Transaction on or about the 15th day of each calendar month. OfferForge will issue to You any positive balance in Your Account, provided Your Account balance exceeds the required "Minimum Account Balance." OfferForge shall have no obligation to make payment of any Payouts for which OfferForge has not received payment from the relevant Advertiser of all monies due to OfferForge (including for all Payouts owed by such Advertiser to all of such Advertiser's Publishers). You agree that OfferForge has the right, but not the obligation, to seek on behalf of You any and all amounts due from Advertisers, including, but not limited to Payouts. If OfferForge elects, in its own discretion, not to make payment to You for amounts not received from an Advertiser, those amounts shall not be included in the Minimum Balance Amount. Your recourse for any earned Payouts not paid to You shall be to make a claim against the relevant Advertiser(s), and OfferForge disclaims any and all liability for such payment. You may elect to receive payment in any of the currencies that OfferForge supports (as may be amended by OfferForge). The conversion rate shall be determined in accordance with OfferForge's operating standards. OfferForge has the right to assess service fees in order to process or stop your payment as necessary. The number or amount of Transactions, credits for Payouts, and debits for Charge-backs, as calculated by OfferForge, shall be final and binding on You.
(f) Dormant Accounts. If Publisher's Account has not been credited with a valid, compensable Transaction that has not been Charged-back during any rolling, six consecutive calendar month period ("Dormant Account"), a dormant account fee at OfferForge's then-current rate shall be applied to Publisher's Account each calendar month that Publisher's Account remains an open yet Dormant Account or until Your Account balance reaches a zero balance, at which time the Account shall become deactivated. Transactions will not be counted if the Transaction subsequently becomes a Charge-back.
(g) Negative Accounts. You may have a negative balance if Your Account is debited amounts equivalent to previous Payouts for Charge-backs and You do not have an adequate Account balance to cover the Charge-back amounts. When You have a negative balance, You must immediately remit payment to OfferForge in an amount sufficient to bring Your Account to a zero balance, or Your Account is subject to 1.5% interest per month, compounded monthly.
4. Proprietary Rights.
(a) Linking to Advertisers. For each Advertiser's Program that You have been accepted to, the Advertiser is granting to You the right to display and Link to the Advertiser's Web site or Web site content in accordance with the Advertiser's Program terms for the limited purposes of Promoting the Advertiser's Program, subject to the terms and conditions of this Agreement. Your use of the Link signifies Your agreement to refrain from copying or modifying any icons, buttons, banners, graphics files or content contained in the Link, including but not limited to refraining from removing or altering any copyright or trademark notices. As between OfferForge and Publisher, OfferForge owns all rights in and to all information regarding the Visitors that You refer to Advertisers through OfferForge.
(b) OfferForge's Use of Your Marks. You authorize OfferForge to utilize Your trademarks, service marks, tradenames, and/or copyrighted material that You provide to OfferForge through Your Account to promote Your participation in the Network Services.
(d) Retention of Rights. All proprietary rights of Advertisers, You, and OfferForge, and all goodwill arising as a result of such rights, inure to the benefit of such owner.
(e) No Challenge to OfferForge's/Advertiser's Proprietary Rights. You acknowledge that You obtain no proprietary rights in OfferForge's trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agree not to challenge OfferForge's proprietary rights. You acknowledge that You obtain no proprietary rights in Your Advertisers' proprietary rights, and agree not to challenge such Advertiser's proprietary rights.
(f) Data Ownership. You understand that all personally identifiable information, if any, provided by Visitors through the Tracking Code or in response to an advertisement or request for information and/or any or all reports, results, and/or information created, compiled, analyzed and/or derived by OfferForge from such data is the sole and exclusive property of Advertiser and OfferForge and is considered OfferForge's Confidential Information pursuant to this Agreement. OfferForge and any parent, divisions, subsidiaries and affiliates of OfferForge (Pty) Ltd, and/or its Advertisers, in their sole discretion, shall have the right to use, market and re-market any Visitors and/or data without further obligation to You. You shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data or Visitors, or any portion thereof, to any third-party.
(a) Obligations. You or OfferForge may provide the other with information that is confidential and proprietary to that party or a third party, as is designated by the disclosing party or that is reasonably understood to be proprietary and/or confidential ("Confidential Information"). The receiving party agrees to make commercially reasonable efforts, but in no case no less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Confidential Information shall not include (even if designated by a party) information: (i) that is or becomes part of the public domain through no act or omission of the receiving party; (ii) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (iii) that the receiving party had in its possession prior to the date of this Agreement. Upon termination of this Agreement, You must destroy or return to OfferForge any Confidential Information provided by OfferForge to You under this Agreement.
(b) Provision of Info to Advertisers/Third Parties. You agree that OfferForge may, but is not obligated to, provide Your email address(es) and basic Publisher Account detail (including but not limited to Your address, phone and fax number, Web site name, the date the website or subscription email first entered into operation, and visitor demographics) to Advertisers. OfferForge may provide any and all Visitor, Transaction and/or Tracking Code data to the Advertiser to which You referred such Visitor, and to any third party in OfferForge's sole discretion, including but not limited to all regulatory, legislative and judicial bodies, and pursuant to allegations and claims of proprietary rights infringement.
6. Term, Termination, Deactivation and Notices.
(a) Term. This Agreement shall commence upon Your indication that You have accepted this Agreement by providing the required information and ‘clicking through' the acceptance button on the OfferForge Web site and shall continue until terminated in accordance with the terms of this Agreement. This Agreement may be terminated by either party upon 15 days' notice. This Agreement may be terminated immediately upon notice for Your breach of this Agreement. Your Account may be deactivated and/or Payouts may be withheld during investigation of breach of this Agreement. If this Agreement is terminated based upon Your breach, You shall not be eligible to enter into a new Publisher Service Agreement with OfferForge, and any attempt to do so shall be null and void.
(b) Termination by Advertiser. An Advertiser may terminate You, one of Your Web sites, or Your ability to use a promotional method, from the Advertiser's Program for any or no reason, upon 7 days written notice with effect from the 8th day. Additionally, Advertiser may immediately terminate You from the Advertiser's Program for breach of a third party's proprietary rights, and/or diluting, tarnishing or blurring an Advertiser's trademarks, trade names, and/or service marks, or for Your material breach of the Advertiser's Program terms or of this Agreement.
(c) Termination or Deactivation by OfferForge. OfferForge may terminate You, one of Your Web sites, or Your use of a promotional method, from an Advertiser's Program, at any time in OfferForge's sole discretion. Breach of any Section of this Agreement is cause for immediate termination from an Advertiser's Program and/or termination of this Agreement, and may result in Charge-back of one or more Payouts. OfferForge may temporarily deactivate or terminate Your Account if: (i) You or Your agent are responsible for the improper functioning of Ad Content, or if You otherwise interfere with and/or fail to maintain the Tracking Code; (ii) Your Account has not been logged into and/or there have been no Transactions credited to Your Account for any 30 day period; (iii) You maintain a negative balance in Your Account; (iv) OfferForge determines You are diluting, tarnishing or blurring OfferForge's proprietary rights; (v) You begin proceedings to challenge OfferForge's proprietary rights; or (vi) a third party (including a OfferForge Advertiser) disputes Your right to use any Link, domain name, trademark, service mark, trade dress, or right to offer any service or good offered on Your Web site, or through any of Your promotional means. Upon termination of this Agreement, or in case of deactivation of Your Account, You shall no longer accrue Payouts in Your Account, including but not limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
(d) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
(e) Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Agreement to: (i) for OfferForge, via registered mail, return receipt requested or via an internationally recognized registered mail carrier to OfferForge (Pty) Ltd, 5 Ensete Place, Magalieskruin X27, Pretoria, 0159 South Africa (effective upon actual receipt); and, (ii) for You, at the email or physical address listed on Your Account (effective upon sending as long as OfferForge does not receive an error message regarding delivery of the email) or five (5) days after mailing).
(f) Post-termination. Upon termination of this Agreement, any outstanding payments shall be paid by OfferForge to You within 90 days of the termination date, and any outstanding debit balance shall be paid by You to OfferForge within 30 days of termination of this Agreement. All payments are subject to recovery for Charge-backs. Upon termination of this Agreement, any permissions granted under this Agreement will terminate, and You must immediately remove all Links to Advertiser(s). Provisions of this Agreement that by their nature and context are intended to survive the termination of this Agreement shall survive the termination of this Agreement to the extent that and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to termination.
7. Representations, Warranties, Disclaimers and Limitations.
(a) Business Operations. Each party will make reasonable commercial efforts to keep its Web site operational during normal business hours. However, the parties agree that it is normal to have a certain amount of system downtime and agree not to hold each other or Your Advertisers liable for any of the consequences of such interruptions. OfferForge may modify the Network Service, or discontinue providing the Network Service, or any portion thereof, at any time.
(b) Authority. Each party represents and warrants to the other party as to itself that the person executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. You represent and warrant that: (i) You have all appropriate authority to operate, and to any and all content on, Your Web site(s); (ii) You have all appropriate authority in any promotional method you may choose to use; (iii) Your Web site(s) and Your promotional methods do not and will not infringe a third party's, a OfferForge Advertiser's, or OfferForge's, proprietary rights; and (iv) You shall remain solely responsible for any and all Web sites owned and/or operated by You and all of Your promotional methods. OfferForge may or may not review all content on Your Web site or used by You in Your promotional methods.
(d) Compliance with Laws. You are responsible for compliance with the requirements of all relevant legislation in force or applicable in the Republic of South Africa or in any other applicable territory, and warrant that no promotion method used by You or the content of Your Web site(s) will render OfferForge liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF OFFERFORGE UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYOUTS PAID TO YOU BY OFFERFORGE UNDER THIS AGREEMENT DURING THE YEAR PRECEDING THE CLAIM. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. YOU AGREE THAT OFFERFORGE SHALL NOT BE LIABLE TO YOU, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, OFFERFORGE DISCLAIMS ALL WARRANTIES IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT OFFERFORGE'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF THE PUBLISHER'S INFORMATION OR WEB SITE. ALL 'INFORMATION' AND 'COMPUTER PROGRAMS' PROVIDED TO YOU IN THE COURSE OF THIS AGREEMENT ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. OFFERFORGE IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK SERVICE.
(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
8. Publisher's Indemnification Obligations.
Publisher shall defend, indemnify and hold OfferForge and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees at scale) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement, (b) Publisher's violation of any law, or an alleged violation of law by OfferForge, that is a direct or indirect result of Publisher's use of the Network Service, (c) Publisher's use of the Network Service, (d) Publisher's participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, (f) Publisher's acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher's use of internet links via email distribution, (g) any claim that OfferForge is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser's Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification under this Section 8, OfferForge shall promptly notify Publisher, and OfferForge shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold OfferForge harmless. Publisher shall not settle any Claim without OfferForge's prior written consent. Publisher also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 8. In the context of this Section 8 only, the term "OfferForge" shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors.
(a) Headings and References. Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
(b) Third Party Disputes. In the event of a third party claim against either: (a) OfferForge's intellectual property; or (b) against OfferForge's right to offer any service or good on OfferForge's Web site(s) or if, in OfferForge's opinion, such a claim is likely, OfferForge shall have the right, at its sole option and in its sole discretion, to (i) secure the right at OfferForge's expense to continue using the intellectual property or good or service; or (ii) at OfferForge's expense replace or modify the same to make it non-infringing or without misappropriation.
(c) Relationships of Parties/Third Party Rights. The relationships of the parties to this Agreement shall be solely that of independent contractors, and nothing contained in this Agreement shall be construed otherwise. Nothing in this Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. You agree that Your consent is not necessary to modify any Advertiser Service Agreement.
(d) Choice of Law/Attorneys' Fees/Arbitration. This Agreement is governed by the laws of the Republic of South Africa and the parties consent to exclusive jurisdiction and venue in the magisterial and high courts of Gauteng, for such purpose. Any dispute or controversy arising out of or related to this agreement shall be settled by binding arbitration by an arbitrator appointed by mutual consent or failing consent the President of the Gauteng Bar Association. If the matter is primarily of an accounting nature the arbitrator shall be a chartered accountant of no less than 10 years’ experience. If the matter is primarily of a legal nature the arbitrator shell be an arbitrator of no less than 10 years’ experience. If the parties cannot agree the nature of the matter it shall be arbitrated as a legal matter. Award shall be final and binding upon the parties. Judgment upon any award may be entered in any competent court within the jurisdiction of the Gauteng Bar Association. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.
(e) Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.
(f) Severability/Waiver. If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the stated intentions in this Agreement. The waiver of any breach of any provision under this Agreement by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
(g) Assignment and Acknowledgement. Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Your consent shall not be required for assignment or transfer made by OfferForge (1) due to operation of law, or (2) to an entity that acquires substantially all of OfferForge's stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent). Your use of the Network Service is irrefutable acknowledgement by You that You have read, understood and agreed to each and every term and provision of this Agreement. OfferForge may establish from time to time rules and regulations regarding use of the Network Service as published on the Network Service and incorporated herein.
(h) Marketing. Publisher agrees that OfferForge may identify it as a OfferForge Publisher in client lists and may use Publisher's name and/or logo solely for such purpose in its marketing materials. Any other uses of Publisher's name and/or logo not otherwise described or contemplated herein shall require Publisher's prior written consent.
(i) Tax Status and Obligations. OfferForge is not obligated to and shall not provide You with tax and/or legal advice. OfferForge undertakes no duty to investigate or research Your tax status and/or obligations, and such research and investigation is solely Your responsibility. You are obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to Visitors. If OfferForge provides You with information regarding a particular Advertiser or Publisher, the information shall not be deemed tax or legal advice, and OfferForge shall not be responsible for the accuracy of such information. Any Publisher or Advertiser addresses provided to You are addresses provided by the relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or presence of the Publisher or Advertiser in such location or elsewhere.
(j) Entire Agreement, Assignment and Amendment. This Agreement, including the Introduction, contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by either of the parties, either oral or written, except as stated in this Agreement. This Agreement may only be altered, amended or modified by an instrument that is assented to by each party to this Agreement by verifiable means, including without limitation by written instrument signed by the parties or through a "click through" acknowledgement of assent. No interlineations to this Agreement shall be binding unless initialled by both parties. Notwithstanding the foregoing, OfferForge shall have the right to change, modify or amend ("Change") this Agreement, in whole or in part, by posting a revised Agreement at least 14 days prior to the effective date of such Change. Your continued use of the Network Service after the effective date of such Change shall be deemed Your acceptance of the revised Agreement.
IF YOU ARE AN INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18 YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
OfferForge (Pty) Ltd
registration number 2018/279085/07
5 Ensete Place, Magalieskruin X27, Pretoria, 0159, South Africa
Tel no: +27 (87) 231-0377
Posted 28 June 2021