advertising terms

Please read these Terms and Conditions carefully. All contracts that the Publisher may enter into from time to time for the provision of Advertising and related services shall be governed by these Terms and Conditions, and the Publisher will ask for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.
 

1. INTERPRETATION AND DEFINITIONS

The headings of the clauses are for the purposes of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms nor any clause hereof. Unless a contrary intention clearly appears:

1. words importing:

   1. the masculine gender shall include the feminine gender and neuter genders and vice versa;

   2. the singular includes the plural and vice versa; and

   3. natural persons include created entities (corporate and un-incorporated) and the state and vice versa;

2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:

   1. "AFSA" means the Arbitration Foundation of Southern Africa NPC, a non-profit company duly incorporated in South Africa with registration number 1996/007496/08;

   2. “Agreement” means a contract or service order form between the parties incorporating these Terms and Conditions, and any amendments to that contract or service order form from time to time;

   3. “Business Day” means any day other than a Saturday, Sunday or official public holiday in South Africa;

   4. “Business Hours” means the hours of 08:00 to 17:00 South African Standard Time (SAST) on a Business Day;

   5. “Charges” means the following amounts:

      1. the amounts specified in the Services Order Form;

      2. such amounts as may be agreed in writing by the parties from time to time; and

      3. amounts calculated by multiplying the Publisher's standard time-based charging rates (as notified by the Publisher to the Customer before the date of the Agreement) by the time spent by the Publisher's personnel performing the Support Services;

   6. “Customer” means means the person or entity identified as such in Section 1 of the Services Order Form;

   7. “Customer Confidential Information” means any information disclosed by or on behalf of the Customer to the Publisher during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:

      1. was marked or described as “confidential"; or

      2. should have been reasonably understood by the Publisher to be confidential; and

      3. the Customer Data;

   8. “Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Network at the instigation of the Customer; supplied by the Customer to the Publisher for uploading to, transmission by or storage on the Network;

   9. “Documentation” means the documentation produced by the Publisher and delivered or made available by the Publisher to the Customer;

   10. “Effective Date” means the date upon which the parties execute a hard-copy Services Order Form; or, following the Customer completing and submitting the online Services Order Form published by the Publisher on the Publisher's website, the date upon which the Publisher sends to the Customer an order confirmation;

   11. "Expenses" means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by the Publisher exclusively in connection with, the performance of the Publisher's obligations under the Agreement;

   12. “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

   13. “Intellectual Property Rights” means all such right, title and interest (including goodwill) that each Party may have in and to intellectual and industrial property anywhere in the world, including, without limitation, any copyrights, patents, trademarks, know-how, designs, trade name/s, business name/s and identifying insignia or Confidential Information, as well as any such other intellectual property rights or such other rights of a similar nature (whether registered or unregistered) that either Party may have and/or the right to apply for any of them;

   14. “Mobile App” means the mobile application/s created by the Publisher for the Publisher's Customers that is made available by the Publisher through the Google Play Store, the Apple App Store and other distribution platforms;

   15. “Parties” means the Parties as specified in the Services Order Form, being the Publisher and the Customer, and “Party" shall mean any one of them, as the context may require;

   16. “Personal Information” has the meaning given to it in the Protection of Personal Information Act, 2013;

   17. “Protectable Interests” includes the Confidential Information related to the Provider, its goodwill and market reputation, its intangible assets and interests in general, its interests in the Agreements and the arrangements between the Provider and its clients and/or other suppliers and third parties;

   18. “Publisher” means immedia Studio Proprietary Limited (Registration no. 2001/023563/07), a company duly incorporated and registered in accordance with the laws of the Republic of South Africa,
       with domicilium Level 3 The Quarterdeck, 69 Richefond Circle, Ridgeside Office Park, Umhlanga, Durban, 4321;
       contactable via telephone on +27 31 566 8000,
       with postal address P.O. Box 25080, Gateway, 4319;
       for the attention of Mr Anice Hassim, at email address anice@immedia.co.za;

   19. “Schedule” means any schedule attached to the main body of the Contract or Services Order Form;

   20. “Services” means any services that the Publisher provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions;

   21. "Services Order Form" means an online order form published by the Publisher and completed and submitted by the Customer, or a hard-copy order form signed or otherwise agreed by or on behalf of each party, in each case incorporating these Terms and Conditions by reference;

   22. “Signature Date” means the date on which the Services Order Form is signed by the Party signing last in time;

   23. “Term” means the Duration of the Agreement commencing on the Effective Date and terminating as per the Service Order Form

   24. "Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the Services Order Form, the main body of these Terms and Conditions and the Schedules, including any amendments to that documentation from time to time;

   25. “VAT” means value-added tax as may be levied in terms of the Value-Added Tax Act, No. 89 of 1991;

3. any reference in these Terms and Conditions to a statutory provision is to that statutory provision as at the Signature Date, as amended or re-enacted or replaced from time to time;

4. when any number of days is prescribed in these Terms and Conditions and the Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day is not a Business Day, in which case the last day shall be the next succeeding Business Day;

5. whenever performance is required to be made in these Terms and Conditions and the Agreement on any date and such date is not a Business Day, such performance shall be required to be made on the next Business Day;

6. expressions defined in this Terms and Conditions shall bear the same meanings in schedules or annexures to the Agreement which do not themselves contain their own conflicting definitions;

7. where any term is defined within the context of any particular clause in the Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of the Agreement, notwithstanding that that term has not been defined in this interpretation clause;

8. where figures are described in the Agreement both in numerals and in words, the numerals shall prevail in the event of any conflict between the two;

9. the expiration or termination of the Agreement shall not affect such of the provisions of these Terms and Conditions and the Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;

10. any reference in these Terms and Conditions and the Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under these Terms and Conditions and the Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be; and

11. the words “include", “including", “in particular", “other" and “otherwise" shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the meaning or generality of any preceding word/s (and as such the eiusdem generis rule shall not apply).

2. DURATION AND EARLY TERMINATION

1. The Agreement shall commence on the Effective Date.

2. The Agreement shall continue in force indefinitely, subject to termination in accordance with any provision of the Service Order Form and these Terms and Conditions.

3. Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract under these Terms and Conditions.

4. Notwithstanding the provisions of the clause above, either Party shall be entitled cancel the Agreement, which cancellation shall be without prejudice to any other rights which the Party may have at law and under the Agreement:

   1. as specified in any Services Order Form and accompanying Schedules;

   2. as a result of a material breach, as contemplated in Clause (Breach); or

   3. immediately, upon giving written notice by a Party in the event of the other Party:

   4. committing any act which would have been an act of insolvency in terms of the Insolvency Act, 1936, had it been a natural person;

   5. being provisionally or finally wound-up, and whether compulsorily or voluntarily, or placed under provisional or final judicial management;

   6. commencing proceedings for business rescue, as contemplated in the Companies Act, 2008;

   7. filing an application for its de-registration, liquidation or winding-up; or

   8. breaching the Agreement 3 (three) times in a period of a calendar year, as a result of which notice is given in terms of Clause (Breach) in each such instance of breach.

5. On termination of the Agreement, for whatever reason:

   1. each Party shall immediately return to the other, at the other’s election, all items in the possession of the other which are its property, including all documents, disks or other medium containing Customer Confidential Information and Confidential Information of the other Party.  and

   2. the Customer shall immediately cease use of all Intellectual Property Rights and Confidential Information supplied by the Publisher.

3. CUSTOMER DATA

1. The Customer hereby grants to the Publisher a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Publisher's obligations and the exercise of the Publisher's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Publisher's obligations and the exercise of the Publisher's rights under the Agreement.

2. The Customer warrants to the Publisher that the Customer Data when used by the Publisher in accordance with the Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.

3. The Publisher is under no obligation to screen Content, but the Provider has the right (but not the obligation) in its sole discretion to refuse or remove any Content that is provided by the Customer.

4. The Publisher has the authority, but not the obligation, to remove Content containing Content that the Publisher determines in its sole discretion to be actually or potentially unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or actually or potentially in violation of any party’s intellectual property rights or these Terms and Conditions.

5. The customer understands and agrees that any loss or damage of any kind that occurs as a result of the use of any Content that the Customers sends, uploads, downloads, streams, posts, transmits, displays, or otherwise make available or access through the use of the Network or Service/s, is solely the responsibility of the Customer, and the Customer agrees that the Publisher is only acting as a passive conduit for online distribution and publication of the Customers Content. The Publisher is not responsible for any public display or misuse of the Customer's Content.

6. If the Customer operates a social network, manages a community, post material to the Platform or Service, post links on the Platform and Service, or otherwise make (or allow any third party to make) material available by means of the Platform or Service (any such material, “Content”) or other services, the Customer is entirely responsible for the content of, and any harm resulting from that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio or video file, or computer software.

7. By making Content available, the Customer represents and warrants that:

   1. The downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;

   2. The Cusotmer has fully complied with any third-party licenses relating to the Content;

   3. The Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;

   4. The Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);

   5. The Content is not pornographic, libelous or defamatory, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;

   6. The social network, community, software, or application is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, blogs and web sites, and similar unsolicited promotional methods;

   7. The social network, community, software, or application is not named in a manner that misleads readers into thinking that the Customer is another person or company. ; and

   8. the Customer has, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by social network or otherwise.

8. By submitting Content to the Publisher for inclusion on any services or applications provided by the Publisher, you grant the Publisher a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting the Content. If the Content is deleted, the Provider will use reasonable efforts to remove it from the Service, but the Customer acknowledges that caching or references to the Content may not be made immediately unavailable.
    

9. INTELLECTUAL PROPERTY RIGHTS

   1. Nothing in these Terms and Conditions and the Agreement shall operate to assign or transfer any Intellectual Property Rights from the Publisher to the Customer, or from the Customer to the Publisher.

   2. All Intellectual Property Rights belonging to a Party prior to the execution of the Agreement shall remain vested in that Party.

   3. Any unauthorised use of any Intellectual Property Rights by either Party shall constitute a material breach of the Agreement.

   4. Each Party acknowledges and agrees that all usage by Party of the other Party’s Intellectual Property Rights, and any goodwill established thereby, shall be for the exclusive benefit of the Party who owns the Intellectual Property Rights and that the Agreement does not confer goodwill or any other interest in the Intellectual Property Rights on them.

   5. Notwithstanding the provisions of Clauses above, the Customer acknowledges and agrees that the Publisher shall have the right to use certain of its intellectual property (including the Customer’s logos, tradename and/or trademarks) in its marketing materials.

   6. The provisions of this clause (Intellectual Property Rights) shall survive the termination of the Agreement for the purpose they were agreed.

   7. Any improvements, custom development, suggestions, ideas or feedback concerning the Service provided by the Customer to the Publisher shall become the sole property of the Publisher. The Publisher shall own exclusive rights, including all Intellectual Property Rights, and shall be entitled to the unrestricted use and circulation thereof for any purpose, without acknowledgment or compensation to the Customer.
       

10. CHARGES AND PAYMENTS

    1. The Customer shall pay the Charges to the Publisher in accordance with this Agreement.

    2. If the Charges are based in whole or part upon the time spent by the Publisher performing the Services, the Publisher must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the Parties being exceeded.

    3. In consideration for rendering the Services, the Customer shall pay the Publisher the charges set out herein, without deduction or set-off, effected by direct debit or electronic transfer to the Publisher’s bank account reflected on the invoice, unless otherwise agreed between the Parties from time to time. The Publisher shall be entitled to charge the Customer an additional once-off set up fee and cancellation fee.

    4. The Publisher shall issue invoices for the Charges to the Customer in advance of the start date of the advertisement.

    5. The Customer must pay the Charges to the Publisher on the receipt of an invoice issued in accordance with this clause, providing that the Charges must in all cases be paid before the start date of the advertisement.

    6. The Publisher shall be entitled at any time to request that the Customer pay a deposit or pre-payment to the Publisher in consideration of the charges.

    7. The Publisher shall be entitled at any time to increase the Charges commensurate with any increase in the actual cost to the Publisher, where the costs are directly attributable to the Services, and the cost price of the Services have changed by reason of changes in input costs, whether by reason of exchange rate fluctuations, supply side increases or otherwise. 

    8. The Publisher may elect to vary any element of the Charges by giving to the Customer not less than 14 (fourteen) days' written notice of the variation.

    9. If the Customer fails to pay the Charges, the Publisher may, without prejudice to any of its rights under this Agreement, suspend the performance of its obligations in terms of this Agreement, and shall be entitled to charge interest at the rate of 2% (two percent) above the Prime Rate, plus any additional costs incurred by the Publisher as a result of the Customer’s failure to make payment on the due date.

    10. Should the Customer require a change or modification to the Services provided by the Publisher, the Customer shall immediately notify the Publisher to such effect in writing (the “Change Order”).  The Publisher shall be entitled to recalculate the Service Fee payable by the Customer for the Services under the Change Order. For the avoidance of doubt, the Service Fee in respect of the Change Order shall become payable in accordance with the provisions of Clause 10.5 above.

    11. Unless otherwise stipulated in this Agreement, all amounts in this Agreement are exclusive of VAT (where applicable).
         

11. CONFIDENTIALITY

    1. In the implementation of this Agreement either Party may either be required to disclose Confidential Information held by it to the other, or may itself require access to Confidential Information held by the other Party.

    2. The Parties undertake in favour of each other and its successors in title and assigns, which undertaking shall survive termination of this Agreement, that in order to protect, inter alia, the proprietary interests of the other Party in respect of the Confidential Information it shall treat any information obtained by the Party in terms, or arising from the implementation, of this Agreement shall be treated as confidential by the 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 save that:

       1. each Party shall be entitled to disclose such information to such of its employees and/or contractors who need to know for the purposes of this Agreement. Before revealing such information to any such employees and/or contractors, it undertakes to procure that the employees and/or contractors are aware of the confidential nature of the information being made available to them;

       2. any information which is required to be furnished by law or by existing contract; and

       3. no party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it.

    3. On termination of this Agreement for any reason whatsoever, the Customer shall forthwith deliver to the Publisher all documents, electronic data, recordings, computer diskettes, copies and other records relating to the Confidential Information which has been disclosed to it and, insofar as it is not possible to deliver any such data or records, the Customer shall destroy such data or records.

    4. The Customer shall not acquire any rights or interests in or to, or ownership of, the Confidential Information.

    5. The Parties shall treat as strictly confidential all Confidential Information received or obtained as a result of entering into or performing this Agreement.

    6. If a Party is uncertain about whether any information is to be treated as confidential in terms of this clause (Confidentiality), it shall be obliged to treat it as such until written clearance is obtained from the other Party.

    7. The Publisher must:

       1. act in good faith at all times in relation to Customer Confidential Information; and

       2. not use any of the Customer Confidential Information for any purpose other than to enable it to perform the Services.

    8. This clause (Confidentiality) imposes no obligations upon the Publisher with respect to Customer Confidential Information that:

       1. is known to the Publisher before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

       2. is or becomes publicly known through no act or default of the Publisher; or

       3. is obtained by the Publisher from a third party in circumstances where the Publisher has no reason to believe that there has been a breach of an obligation of confidentiality.

    9. The undertakings in this clause (Confidentiality) shall survive termination of this Agreement for the purpose they were agreed.
        

12. DATA PROTECTION

    1. The Customer warrants to the Publisher that it has the legal right to disclose all Personal Data that it does in fact disclose to the Publisher under or in connection with the Agreement, and that the processing of that Personal Data by the Publisher for the Permitted Purpose in accordance with the Agreement will not breach any applicable data protection or data privacy laws (Protection of Personal Information Act, 2013).

    2. The Customer hereby authorises the Publisher to make the following transfers of Customer Personal Data:

       1. the Publisher may transfer the Customer Personal Data internally to its own employees, offices and facilities in jurisdiction(s);

       2. Notwithstanding any other provision of the Agreement, the Publisher may process the Customer Personal Data if and to the extent that the Publisher is required to do so by law. In such a case, the Publisher shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.

       3. As at the Effective Date, the Publisher is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data.
           

13. WARRANTIES

    1. Each Party hereby represents, warrants and undertakes to and for the benefit of the other Party that:

       1. it is duly and validly registered in accordance with the laws of its domicilium country;

       2. it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into the Agreement and to perform its obligations under these Terms and Conditions;

       3. it has all such licences, consents, permits and other authorities prescribed by law for the lawful conduct of its business; and

       4. it shall not incur any liability on behalf of the other Party.

    2. All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
        

14. NON-COMPETE UNDERTAKING IN FAVOUR OF THE PROVIDER

    1. The Customer acknowledges that as a result of the Agreement it is and/or shall become possessed of and have access to Confidential Information, become intimately associated with the Publishers goodwill, suppliers and customers (including the clients).

    2. The Customer acknowledges that:

       1. the Protectable Interests are legitimate proprietary and commercial interests of the Publisher, which the Publisher is entitled to protect; and

       2. the business of the Publisher would be prejudiced if the Customer were to exercise its influence over the customers and suppliers of the Publisher (including the clients) contrary to the interests of the Publisher.

    3. In consideration for the conclusion of the Agreement and in the interest of the protection and maintenance of, inter alia, the Protectable Interests and to avoid the Customer unfairly competing with the Publisher, the Customer undertakes to and in favour of the Publisher that it shall not for the duration of the Agreement and for a period of 2 (two) years after the termination of the Agreement, whether directly or indirectly and either solely or jointly:

       1. canvass, influence or try to persuade any customer of the Publisher (including the clients) to take its custom elsewhere and/or to purchase the products offered by the Publisher from any other person/entity; or

       2. offer employment to or cause to be employed any person who was employed by the Publisher at any time within the 2 (two) year period immediately preceding the termination of the Agreement.

    4. The Customer hereby acknowledges, agrees and records that it has given careful consideration to the restraints contained in this clause (Non-Compete Undertaking in favour of the Publisher) and that such restraints are fair and reasonable (after taking all relevant circumstances into consideration) and go no further than is reasonably necessary to protect the Protectable Interests.

    5. The restraints and undertakings in this clause (Non-Compete Undertaking in favour of the Publisher) shall be severable from the Services and shall survive termination of the Agreement for any reason whatsoever, notwithstanding a breach of the Agreement by either Party.