Merchant Agreement Between Affiliate Labs (Pty) Ltd and Advertiser

1. BACKGROUND
1.1. TRAFFICSYNERGY operates an affiliate marketing network at the URL www.trafficsynergy.co.za
1.2. The Merchant wishes to market its products and/or services through the TRAFFICSYNERGY affiliate marketing network.
1.3. This agreement stipulates the terms upon which this relationship is based.

2. APPROVAL AND USE POLICY
2.1. All web sites, newsletters, companies, or individuals need official approval from TRAFFICSYNERGY before they can become an Advertiser, Affiliate or Publisher Partner of the affiliate network.
2.2. Only web sites and newsletters that have been reviewed and approved are permitted to use the programs.
2.3. TRAFFICSYNERGY reserves the right to withhold or refuse approval on any web site, newsletter, company, or individual for any reason, whatsoever.
2.4. TRAFFICSYNERGY reserves the right to refuse service to any new or existing Merchant, in its sole discretion, with or without cause.
2.5. TRAFFICSYNERGY reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Merchant or Website for any reason at any time, with or without notice to the Merchant and regardless of whether such Merchant or Website was previously accepted.
2.6. TRAFFICSYNERGY reserves the right to refuse to affiliate with any Merchant.

3. REPRESENTATION
3.1. The Merchant represents and warrants that:
3.1.1. it is the owner or is licensed to use the entire contents and subject matter contained in the Website;
3.1.2. the Website is free of any virus or other any other device that could impair or injure any person or entity;
3.1.3. the Website does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement;
3.1.4. the Website does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity;
3.1.5. Merchant is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and
3.1.6. the Website does not and will not infringe any copyright, trademark, patent or other proprietary right.
3.1.7. Merchant grants TRAFFICSYNERGY and the Affiliate / Publisher the right and license to transmit the Creative to the Affiliate / Publisher's Website, and opt-in emails.
3.2. This Agreement is voidable by TRAFFICSYNERGY immediately if Merchant fails to disclose, conceals or misrepresents itself in any way.

4. CODE
4.1. TRAFFICSYNERGY codes must be not be modified from original format without consent from TRAFFICSYNERGY.
4.2. Merchant agrees to use the ad code provided for impression, click, lead, or sale tracking.
4.3. Merchant can not alter, copy, modify, take, sell, reuse, or divulge any TRAFFICSYNERGY computer code, except as is necessary to partake in the TRAFFICSYNERGY Network, provided, however, with the prior approval of TRAFFICSYNERGY, a Merchant may, in certain instances, modify the TRAFFICSYNERGY computer code for purposes of inserting certain pre-approved language above or below an advertisement served by TRAFFICSYNERGY. Requests for language approval should be sent to support@trafficsynergy.com.

5. DATA REPORTING
5.1. TRAFFICSYNERGY is the sole owner of all website, campaign, and aggregate web user data collected by TRAFFICSYNERGY. 5.2. Merchant only has access to campaign data that is collected through the use of their inventory via the TRAFFICSYNERGY Merchants area.

6. CONTACT INFORMATION
6.1. Merchants are responsible for maintaining the correct contact and payment information associated with their account. 6.2. Bank/service fees associated with returned or cancelled payments due to any error in the Merchant contact or payment information are the Merchant's responsibility, and will be deducted from Merchants fees owed.

7. FINANCIAL TERMS
7.1. TRAFFICSYNERGY will earn commission on a rate that will be agreed with individual Merchants from time to time.
7.2. The applicable total commission payable to an Affiliate / Publisher is set forth on the detail page within the TRAFFICSYNERGY members' area of the Network Service, subject to decrease upon 7 days prior written notice to the Affiliate / Publisher and subject to increase immediately upon such written notice to the Affiliate / Publisher and TRAFFICSYNERGY by the Merchant.
7.3. The Merchant will maintain a cash balance on call at TRAFFICSYNERGY equal to at least the sum of commissions due to Affiliates / Publishers and TRAFFICSYNERGY at any time. This will require the Merchant to make additional deposits at TRAFFICSYNERGY. If a Merchant chooses to pay his/her deposit by check the account will not be activated until the check payment has been cleared.
7.4. Commission payments are made to Publishers by TRAFFICSYNERGY approximately 15 days after the end of the month, thus the Merchant needs to ensure all payments are done within 5 days of the month following the month in which the leads were generated.
7.5. Delinquent Merchant payments received by TRAFFICSYNERGY will be subject to interest at 1.5% per month.
7.6. TRAFFICSYNERGY does not guarantee payment to the Affiliate / Publisher if the Merchant does not pay TRAFFICSYNERGY.
7.7. TRAFFICSYNERGY will be responsible for determining, in its sole and absolute discretion, what acts and omissions violate this policy, and which acts include activity that is deceptive or fraudulent in nature.

8. AUDIT
8.1. TRAFFICSYNERGY shall have the sole responsibility for calculation of Merchant affiliate program earnings, including Impressions and click through numbers, leads, and sales.
8.2. In the event Merchant disagrees with any such calculation, a written request should be sent immediately to TRAFFICSYNERGY. TRAFFICSYNERGY will provide Merchant with an explanation or adjustment of the numbers which shall be final and binding.
8.3. Merchant must report any disputes within 5 days after the end of the previous month.

9. TERMINATION
9.1. TRAFFICSYNERGY reserves the right to terminate the Merchant's relationship with the TRAFFICSYNERGY Network at any time, with or without cause.
9.2. Termination notice may be provided via email or any other public means and will be effective immediately.
9.3. All legitimate moneys due to Publishers will be paid during the next billing cycle.

10. INDEMNITY
10.1. The Merchant guarantees that all content, products, and services on its web site are legal to distribute and that it owns or has the legal right to use any and all copyrighted material.
10.2. The Merchant is solely responsible for any legal liability arising out of or relating to
10.2.1. the content and other material set forth on the Merchant Websites and/or
10.2.2. any content or material to which users can link through the Merchant Websites (other than through an advertisement supplied by TRAFFICSYNERGY).
10.3. The Merchant hereby agrees to indemnify, defend and hold harmless TRAFFICSYNERGY and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings
10.3.1. for libel, defamation, violation of right of privacy or publicity, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Merchant Websites (except for advertisements supplied by TRAFFICSYNERGY);
10.3.2. arising out of any material breach by merchant of any duty, representation or warranty under any agreement with merchant; or
10.3.3. relating to a contaminated file, worm, virus, or Trojan horse originating from the Merchant Websites (other than through an advertisement supplied by TRAFFICSYNERGY).
10.4. If any Merchant or Affiliate / Publisher violates or refuses to take part in their responsibilities, or commits fraudulent activity against us, TRAFFICSYNERGY reserves the right to withhold payment and take appropriate legal action to cover its damages.
10.5. Any legal action taken by an advertiser, agency, client, person, or entity against TRAFFICSYNERGY as a result of a Merchant's actions, that violate these terms and conditions, may result in TRAFFICSYNERGY working with the advertiser, agency, client, person, or entity to divulge the Merchant's personal information. The Merchant agrees that TRAFFICSYNERGY is not liable for its actions, and its will bear all costs (legal or otherwise) that TRAFFICSYNERGY incurs if TRAFFICSYNERGY is sued by an advertiser, client, agency, person, or entity under these circumstances.
10.6. Neither TRAFFICSYNERGY nor its users will be subject to any liability whatsoever for
10.6.1. any failure to provide reference or access to all or any part of the Website due to systems failures or other technological failures of TRAFFICSYNERGY or of the Internet;
10.6.2. delays in delivery and/or non-delivery of Creative, including, without limitation, difficulties with a Customer or Creative, difficulties with a third-party server, or electronic malfunction; and 10.6.3. errors in content or omissions in any Creative.

11. CHANGES IN TERMS AND CONDITIONS
11.1. TRAFFICSYNERGY reserves the right to change any conditions of this contract at any time.
11.2. Change notices are sent to Merchants by email, and Merchants are responsible for complying with any changes to the contract within 10 calendar days from the date of change. Failure of the Merchant to terminate the agreement within those 10 calendar days will constitute acceptance of the changes to this contract.
11.3. Change of terms or additions to this agreement can only be done in writing.

12. DAMAGES
12.1. In no event shall either party be liable for special, indirect, incidental, or consequential damages, including, but not limited to, loss of data, loss of use, or loss of profits arising there under or from the provision of services.

13. WARRANTY DISCLAIMER
13.1. TRAFFICSYNERGY and its users do not make and hereby expressly disclaim all warranties, express or implied, with respect to any matter whatsoever, including, without limitation,
13.1.1. the performance of any software programs incidental to services rendered by TRAFFICSYNERGY,
13.1.2. for any and all services and products provided, including, but not limited to, warranty of merchantability and warranty of fitness for a particular purpose.
13.2. This statement expressly includes any reimbursement for losses of income due to disruption of service by TRAFFICSYNERGY or its upstream providers.

14. GOVERNING LAW
14.1. This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa and the parties irrevocably submit to the exclusive jurisdiction of the Republic of South Africa courts in relation to any legal actions or proceedings arising out of or in connection with this Agreement.

15. TRANSFER OF RIGHTS OR RESPONSIBILITIES
15.1. The parties do not have the right without the other party's written approval entirely and partly to give away the right or responsibility in this agreement to someone else, except as is provided for in this agreement.

16. APPLICABILITY
16.1. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter.
16.2. Applicable sections shall survive expiration or early termination of this Agreement.
16.3. Nothing in this Agreement shall be deemed to create a partnership or joint venture between the parties and neither TRAFFICSYNERGY nor Merchant shall hold itself out as the agent of the other, except for that specified in this Agreement.
16.4. Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.
16.5. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement shall be effective only if in writing and signed by the parties, except as provided for in Clause 11 herein.
16.6. If for any reason a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
16.7. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.
16.8. In addition to terms that are negotiated and documented separately from this Agreement, terms that are automatically generated through the interactive use of the TrafficSynergy.com website Merchant interface are explicitly bound by this Agreement.

17. PUBLIC RELATIONS
17.1. Merchant shall not release any information regarding Campaigns, Creatives, or Merchants relationship with TRAFFICSYNERGY or its customers, including, without limitation, in press releases or promotional or merchandising materials, without the prior written consent of TRAFFICSYNERGY.
17.2. TRAFFICSYNERGY shall have the right to reference and refer to its work for, and relationship with, Merchant for marketing and promotional purposes. No press releases or general public announcements shall be made without the mutual consent of TRAFFICSYNERGY and Merchant.

18. ABILITY TO ACT
18.1. By executing this Agreement, Merchant warrants that Merchant (or Authorized Representative of Merchant) is at least 18 years of age, and that there is no legal reason that Merchant cannot enter into a binding contract.