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.
       

15. ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS

  1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, the Publisher gives no warranty or representation that the Services will be wholly free from defects, errors and bugs.

  2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of the Agreement, the Publisher gives no warranty or representation that the Services will be entirely secure.

  3. The Customer acknowledges that the Publisher will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Publisher does not warrant or represent that the Services or the use of the Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

  4. The Customer acknowledges and accepts that understand that the technical processing and transmission of the Services, including the Customer’s Content, may be transferred unencrypted and involve

    1. transmissions over various networks; and

    2. changes to conform and adapt to technical requirements of connecting networks or devices.

  5. The Customer acknowledges that the Publisher uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Services and that the Publisher cannot be held liable for any failure or delay on the part of such third party vendors and hosting partners.

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16. LIABILITY AND INDEMNITY

  1. Without prejudice to any of the other rights of the Publisher arising from any provisions of the Agreement, the Customer hereby indemnifies and holds the Publisher and its Affiliates harmless from and against all or any, direct and indirect, loss, damage, liability or expense (including attorneys’ fees) relating to any third-party claim against the Publisher or an Affiliate relating to the Customer and/or its customers’ use of any products related to the Services and/or which is a result of, or which may be attributable to, any misconduct, fraudulent activity or negligence of the Customer, its employees and employees of its subcontractors, its representatives and suppliers.

  2. The Publisher shall exercise due care and attention in the exercise of its duties and the performance of its functions in terms of the Agreement, but no claims shall lie against the Publisher, and the Customer hereby further indemnifies and absolves the Publisher absolutely, on demand, from and against any and all direct or indirect, losses, claims, demands, actions, suits, proceedings, fines, costs, disbursements or expenses of whatsoever nature (including consequential losses) arising out of the Provider’s bona fide exercise or failure to exercise any such power or perform any of its duties hereunder, save in the event of gross negligence or wilful dishonesty of the Publisher or any of its directors, officers or employees.

  3. Under no circumstances whatsoever, including as a result of its negligent (including grossly negligent) acts or omissions or those of its servants, agents or contractors or other persons for whom in law it may be liable, shall the Publisher, its Affiliates or its servants (in whose favour this constitutes a stipulatio alteri) be liable for any indirect, extrinsic, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss or damage was actually foreseen or reasonably foreseeable), sustained by the Customer, its directors and/or servants, including but not limited to any loss of operation time, corruption or loss of information, loss of contracts and/or loss of profits.

  4. The Customer shall have no claim for damages against the Publisher and may not withhold or delay any payment or performance due to the Publisher by reason directly or indirectly of any act or omission of the Publisher or any director, officer, employee, representative or other service provider of or to the Publisher.
     

17. BREACH

  1. Should a Party (the “Defaulting Party") commit a breach of the Agreement and/or fail to comply with any of the provisions of the Agreement, then the other Party (the “Aggrieved Party") shall, if it wishes to, enforce its rights hereunder, be obliged to give the Defaulting Party 10 (ten) Business Days’ written notice to remedy the breach and/or failure, which notice shall specify, in sufficient detail, the breach and the conduct required to rectify it.

  2. If the Defaulting Party fails to comply with such notice, the Aggrieved Party shall be entitled, but not obliged, to immediately cancel the Agreement against the Defaulting Party without further notice or to claim immediate payment and/or performance by the Defaulting Party of all of the Defaulting Party’s obligations in respect of which it is in breach of the Agreement, in either event without prejudice to the Aggrieved Party’s rights to claim damages.

  3. Notwithstanding anything to the contrary contained in the Agreement, the Aggrieved Party shall not be entitled to cancel the Agreement for any breach by the Defaulting Party unless such breach is a material breach going to the root of the Agreement and is incapable of being remedied by a payment in money, or if it is capable of being remedied by a payment in money, the Defaulting Party fails to pay the amount concerned within 10 (ten) Business Days after such amount has been finally determined and payment thereof by the Defaulting Party has been demanded in writing by the Aggrieved Party.
     

18. FORCE MAJEURE

  1. A Party shall not be liable for a failure to perform any of its obligations in terms of the Agreement insofar as it is able to prove that:

    1. such failure was due to an impediment beyond its reasonable control;

    2. it could not reasonably have been expected to have taken such impediment and its effects upon such Party’s ability to perform into account at the time of conclusion of the Agreement; and

    3. it could not reasonably have avoided or overcome the impediment or at least its effects,

      and, for purposes of this clause (Force Majeure), the following events (which enumeration is not exhaustive) shall be deemed to be impediments beyond the control of each of the Parties (“Force Majeure”), namely:
       

      1. war, whether declared or not, civil war, civil violence, riots and revolutions, acts of piracy, acts of sabotage;

      2. natural disasters such as violent storms, cyclones, earthquakes, floods and destruction by lightning;

      3. explosions, fires and destruction of plant, equipment, machinery and machines and of any kind of installations;

      4. boycotts, strikes and lock-outs of all kinds, go-slows, occupation of or work stoppages at either Party’s premises; and

      5. acts of authority, whether lawful or unlawful, apart from acts for which the Party seeking relief has assumed the risk.

  2. Should the Force Majeure continue for a period of more than 45 (forty-five) days then either Party shall be entitled forthwith to cancel the Agreement in respect of any obligations still to be performed hereunder.

  3. Whilst any Force Majeure is in progress, the Party invoking it shall have a duty to mitigate its damages.

  4. A Party invoking Force Majeure shall, upon termination of the event giving rise thereto, forthwith give written notice thereof to the other Parties.
     

19. RELATIONSHIP OF PARTIES

  1. The relationship between the Parties is that of independent contractors.

  2. The Customer shall not assume any obligations on behalf of the Publisher nor make any representations on behalf of the Publisher, nor bind or purport to bind the Provider in any manner whatsoever.  The Customer shall not be a commercial agent or distributor, nor in any way represent itself as being the agent or distributor of the Publisher.

  3. It is understood and agreed by the Parties hereto that the Agreement does not create a fiduciary relationship between them. The Agreement does not create a partnership, joint venture or agency between the Parties and neither Party shall be liable for the debts of the other Party, howsoever incurred.
     

20. NOTICES AND DOMICILIA

  1. Each of the Parties chooses domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from the Agreement at their respective addresses set forth in the clause entitled Interpretation and Definitions above.

  2. Each Party may at any time, by notice in writing to the other Party, change its domicilium to any other address which is not a post office box or post restante.
     

21. SUBCONTRACTING

  1. The Publisher may subcontract any of its obligations under the Agreement.

  2. The Publisher shall remain responsible to the Customer for the performance of any subcontracted obligations.
     

22. ASSIGNMENT

  1. The Customer hereby agrees that the Publisher may assign, transfer or otherwise deal with the Publisher's contractual rights and obligations under these Terms and Conditions.

  2. The Customer may not, without the prior written consent of the Publisher, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under the Agreement.


23. JURISDICTION AND GOVERNING LAW

  1. The Agreement will in all respects be subject to, governed by and construed under the laws of the Republic of South Africa.

  2. Subject to the provisions of clause 28 (Dispute Resolution), the Parties hereby consent and submit to the non-exclusive jurisdiction of the KwaZulu-Natal High Court, Durban in any dispute arising from or in connection with the Agreement.

  3. For the purposes of clause 26.1 above, the Parties herewith submit to the jurisdiction of the Court referred to in clause 26.1 above and appoint as their domicilia for those purposes their respective addresses as set out in the Service Order Form.
     

24. GOOD FAITH

  1. The Parties hereby undertake, during the existence of the Agreement, to at all times show to each other the utmost good faith in their dealings with each other.
     

25. DISPUTE RESOLUTION

  1. If any dispute arises out of or in connection with the Agreement, its termination or cancellation or the subject matter thereof, including claims in delict or for rectification of the Agreement, a Party may declare that a dispute exists by notice in writing to the other Party.

  2. Save in respect of those provisions of the Agreement which provide for their own remedies that are incompatible with litigation or arbitration, a dispute (the "Dispute") which arises in regard to:

    1. the interpretation of; or

    2. the carrying into effect of; or

    3. any of a Party’s rights and obligations arising from; or

    4. the termination or purported termination of or arising from the termination of;

    5. the rectification or proposed rectification of; or

    6. any documents furnished by the Parties pursuant to the provisions of,

      the Agreement or out of or pursuant to the Agreement, such Dispute shall be resolved in the manner provided for in this clause (Dispute Resolution) (other than a dispute in respect of which urgent relief may be obtained from a court of competent jurisdiction).
       

  3. Should any Dispute with regard to any of the matters described in clause 28.2 above arise between the Parties, such Dispute shall be dealt with as follows:

    1. the Party contending that a Dispute has arisen (the "Claimant") shall deliver a written notice to such effect to the other Party;

    2. within 10 (ten) Business Days after receipt of the notice referred to in clause 28.3.1 above by the Party to whom such notice is addressed, a committee comprising of 2 (two) senior executives of each of the Parties shall be constituted to attempt to resolve the Dispute.  If the Dispute remains unresolved for a period of 14 (fourteen) days after the aforementioned notice is received by the Party to whom such notice is addressed, then persons nominated by the Parties to represent them with regard to the Dispute shall:

      1. agree in writing a process for resolving the Dispute, or

      2. agree in writing to refer the matter to litigation in the courts described in clause 28.1 above or such other court as the Parties may agree to in writing or to arbitration in terms of the provisions below of this clause (Dispute Resolution).

  4. Should the Parties fail to agree whether the Dispute is principally a legal, accounting or other matter within 7 (seven) days after the arbitration was demanded, the matter shall be deemed to be a legal matter.

  5. Should the Parties fail to agree the appointment of an arbitrator within 7 (seven) days after the delivery of the Arbitration Notice, the referring Party shall request the President for the time being of the KwaZulu-Natal Law Society, South Africa or its successor to appoint in writing an arbitrator.

  6. Unless otherwise expressly agreed to in writing by the Parties:

    1. the arbitration proceedings shall be held at Durban, South Africa;

    2. the arbitration shall be conducted in accordance with the rules (the "Arbitration Rules") of the AFSA.  Should AFSA, for any reason, have ceased to exist at the time of the referral of the Dispute to arbitration, the arbitration shall be conducted in accordance with the Standard Rules of the Association of Arbitrators of South Africa, which rules are hereinafter also referred to as the "Arbitration Rules";

    3. the arbitrator shall be entitled, in his or her sole discretion, on the written application of a Party to the Dispute (which application shall be made in a manner acceptable to the arbitrator) at any time after the referral of the Dispute to arbitration, to amend the Arbitration Rules and/or any time period provided for therein or to supplement the Arbitration Rules in the interests of resolving the Dispute effectively, efficiently and economically, but provided that no such amendment or supplemental rule shall operate retrospectively;

    4. the arbitration shall be subject to the provisions of the Arbitration Act, 1965 (the "Arbitration Act"); and

    5. the arbitration proceedings shall be conducted as expeditiously as possible.

  7. The provisions of this clause (Dispute Resolution) shall prevail to the extent of there being any conflict between the Arbitration Rules and this clause (Dispute Resolution).

  8. The provisions of this clause (Dispute Resolution):

    1. constitute an irrevocable consent by the Parties to the arbitration proceedings provided for herein and no Party shall be entitled to withdraw from the provisions of this clause (Dispute Resolution) or claim at any such proceedings that it is not bound by this clause (Dispute Resolution) or such proceedings; and

    2. are severable from the rest of the Agreement and shall remain in effect despite the termination, cancellation, invalidity or alleged invalidity of the Agreement for any reason whatsoever.

  9. Nothing in this clause (Dispute Resolution) shall preclude a Party from seeking interim and/or urgent relief from the court referred to in clause 28.1 above for the protection of any rights pending the final determination of the Dispute.

  10. The decision of the arbitrator shall be final and binding on the Parties and may be made an order of any competent court at the instance of either of the Parties.

 

26. CUSTOMISATIONS

  1. The Publisher and the Customer may agree that the Provider shall design, develop and implement a Customisation or Customisations in accordance with a specification agreed in the Services Order Form or in writing by the parties.

  2. All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Publisher (unless the parties agree otherwise in writing).

  3. From the time and date when a Customisation is first delivered or made available by the Publisher to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customisation shall be governed by the Clause related to the Services.

  4. The Customer acknowledges that the Publisher may make any Customisation available to any of its other customers or any other third party.

27. MODIFICATIONS AND NEW FEATURES

  1. The provider reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof), in all cases with or without notice.

  2. Any new features that augment or enhance the Services, including the release of new tools and resources, shall be subject to the Service Terms and Conditions.

  3. Continued use of the Services after any such changes shall constitute the Customer’s consent to such changes.

  4. The Provider shall not be liable to the Customer or to any third party for any modification, suspension or discontinuance of the Services.

  5. From time to time, the Publisher may issue an update to the systems that may add, modify, and/or remove features from the Services. These updates may be pushed out automatically with little or no notice, although the Publisher may take reasonable steps to notify the Customer in advance of an upcoming update, including details on what the update includes.

28. EXPENSES

  1. The Customer shall reimburse the Publisher in respect of any Expenses, providing that the Publisher must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.
     

29. PUBLICITY

  1. The Customer must not make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Publisher.

30. HOW THE PUBLISHER UPDATES THESE TERMS AND CONDITIONS

  1. These Terms and Conditions are maintained on the Publisher's website. The Publisher reserves the right, in its sole discretion, to modify or replace these Terms and Conditions from time to time, and so the Customer should review this page periodically. When the Publisher changes these Terms and Conditions in a material way, the Publisher will update the ‘last updated’ date on this page. The Customer's continued use of the Service after any such change constitutes your acceptance of the new terms. If the Customer does not agree to any of these terms or any future terms, do not use or access (or continue to access) the Service.

31. GENERAL

  1. The Services Order Form, the main body of these Terms and Conditions and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

  2. No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.

  3. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.

  4. No alteration, variation of, addition to, consensual cancellation of or waiver of any right arising in terms of the Agreement (including this clause) shall be of any force or effect unless it is reduced to writing and signed by all the Parties to the Agreement or their duly authorised representatives.

  5. If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect.

  6. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).

  7. The Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party.

  8. The rights of the Parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.

  9. No relaxation, indulgence or extension of time which a Party (“the Grantor”) may show or grant to any other Party, shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the other Party which might have arisen in the past or which might arise in the future, save should such waiver be reduced to writing and signed by the Parties.

32. COSTS

Each Party shall bear its own costs incurred in respect of the negotiation, preparation, conclusion and implementation of the Agreement (including the fees of any professional advisors).

 

UPDATED 17 June 2021.