DStv MEDIA SALES Terms and Conditions (revised Feb 2013).docx 01/03/2013

 

DStv MEDIA SALES (PTY) LTD

TERMS AND CONDITIONS

 

1.        Definitions

1.1.      In these Terms and Conditions, unless the context otherwise indicates, the following words shall bear the meaning assigned to them:

1.1.1.    “The Advertiser” means any person, including an association of persons, a partnership, a firm, a company and a close corporation or any other legal entity, making a booking for the selection and purchase of advertising space or time for the televised transmission of an advertisement other than through or by means of an Advertising Agent or Agency and includes its successors in titles and assigns.

1.1.2.    “Advertising Agent” or “Agency” means any person, including an association of persons, a partnership, a firm, a company or close corporation or any other legal entity carrying on the business of making a booking for the selection and purchase of advertising space or time for the televised transmission of an advertisement on behalf of persons intending to advertise.

1.1.3.    “Advertisement Copy” means any advertising and/or sponsorship material supplied by the Advertiser intended for transmission by the Broadcaster.

1.1.4.    “DStv Service” means the Pay TV service offered by Multichoice and/or its affiliates consisting of a variety of bouquets of English, French, Indian and/or Portuguese language programming packages distributed by Multichoice and/or its affiliates in Sub-Sahara Africa via the IS7, Sesat and W4 Satellite (and, once launched, the W7 Satellite). The DStv Service includes the DStv French Bouquet and the DStv Combo Bouquet.

1.1.5.    “Event of Force Majeure” means any circumstance not foreseeable at the date of this Agreement and not within the reasonable control of the party in question, including but not limited to any strike, lock-out or other industrial action (not due to the acts of any party to this Agreement); any destruction (temporary or permanent), breakdown, malfunction, alteration or damage of or to any premises, plant, equipment (including satellite equipment, computer hardware or software) or materials; any civil commotion or disorder, riot, invasion, war or terrorist activity or threat of war or terrorist activity; any action taken by a governmental or public authority of any kind (including not granting a consent, exemption, approval or clearance); and any fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster.

1.1.6.    “M-Net” means Electronic Media Network Limited (registration number: 85/02853/06) trading as M-Net, a company with limited liability duly registered and incorporated in terms of the Company Laws of the Republic of South Africa with its principal place of business and registered address at 137 Braam Fischer Drive, Randburg. M-Net is a duly licensed television content provider of certain proprietary digital satellite and analogue terrestrial television channels in the Republic of South Africa

 

1.1.7.    “Multichoice” means Multichoice Africa (Proprietory) Limited (registration number: 94/09083/07), a company with limited liability duly registered and incorporated in terms of the Company Laws of the Republic of South Africa with its principal place of business and registered address at 251 Oak Avenue, Randburg. Multichoice is a duly licensed provider of certain digital satellite and analogue terrestrial television channels in the Republic of South Africa.

1.1.8.    “SuperSport” means SuperSport Pty Ltd (registration number: 1997/04108/07) trading as SuperSport, a company with limited liability duly registered and incorporated in terms of the Company Laws of the Republic of South Africa with its principal place of business and registered address at 239 Oak Avenue, Randburg. SuperSport is a duly licensed television content provider of certain proprietary digital satellite and analogue terrestrial television channels in the Republic of South Africa.

1.1.9.    “The Company” means DStv Media Sales (Proprietory) Limited (registration number: 95/01791/07), a company with limited liability duly registered and incorporated in terms of the Company Laws of the Republic of South Africa with its principal place of business and registered address at 271 Oak Avenue, Randburg. The Company is the agent of Multichoice, SuperSport and M-Net in procuring sales of airtime on their channels referred to in 1.1.1, 1.1.4 and 1.1.6 respectively for televised advertisement transmission purposes.

1.1.10.“Working Day” means Monday to Friday inclusive in each week except Public Holidays in the Province of Gauteng.

 

1.2.      In these Terms and Conditions, any reference to one gender shall include the other and words importing the singular shall include the plural and vice versa. Headings appearing in these Terms and Conditions are for reference purposes only and shall not affect, dictate, modify or limit the meaning or interpretation of these Terms and Conditions.

 

1.3.      Reference in these Terms and Conditions to the “Broadcaster” shall mean Multichoice, DStv, M-Net, SuperSport, or any channel represented by the Company as the case may be, and reference in these Terms and Conditions to the “Broadcaster’s Channels” shall mean the channels referred to in1.1.1, 1.1.4 or 1.1.6 above as the case may be.

 

2.        Advertising Placement

2.1.      Purpose:

2.1.1.    In terms of this Agreement the Company undertakes to book and place advertisements provided by the Advertising Agency or the Advertiser as the case may be on the Broadcaster’s Channels in consideration for payment as set out in the applicable rate cards, incorporated herein by reference. Credit facilities may be granted to the Advertising Agency or Advertiser as the case may be to facilitate payment as envisioned in this Agreement.

 

2.1.2.    An Advertising Agency shall at all times be deemed to contract as principal with the Company in all respects and as such an Advertising Agency that enters into this Agreement shall itself be personally, solely and exclusively liable and responsible for payment of any fees, charges, accounts and the like due to the Company in terms of this Agreement.

 

2.1.3.    Should an Advertiser terminate, suspend or otherwise cancel the services of an Agency prior to the payment of all or any fees, charges and accounts due to the Company in terms of any bookings made by the Advertising Agent on behalf of the Advertiser, the Agency that made such booking shall remain liable for settlement of such fees, charges and accounts despite the termination, suspension or cancellation of any agreement between the Agency and Advertiser and notwithstanding the appointment of a new Advertising Agent by such Advertiser. No dispute, litigation, claims or similar conflict or disagreement between an Advertising Agent and an Advertiser, on whose behalf any booking has been made, shall distract from the Advertising Agent’s liability for payment of fees, charges and accounts due to the Company.

 

2.2.      Delivery:

2.2.1.    Delivery of the Advertisement Copy shall be deemed to have been made only when the Company’s and/or the Broadcaster’s technical requirements have been met and the relevant transmission instructions have been given.

 

2.3.      Acceptance of Advertisements:

2.3.1.    Advertisements will only be transmitted on the Broadcaster’s Channels if it complies with the following:

2.3.1.1.    the Advertiser advertisements comply with the Advertising Standards Authority of South Africa’s (“ASA”) code and procedures; and

2.3.1.2.    if it satisfies the technical requirements of the Company and/or the Broadcaster and is accompanied by proper transmission instructions; and

2.3.1.3.    the Advertisement Copy complies with all legal and regulatory requirements and does not contain any material which is objectionable, including, without limit, information which is defamatory, obscene, threatening or untrue.

2.3.2.    It is specifically acknowledged and agreed that the onus rests on the Advertiser to ensure that compliance with the ASA’s codes and procedures are adhered to in respect of advertisements to be transmitted on the Broadcaster’s Channels.

 

2.3.3.    The Company may, at its sole discretion decide not to broadcast commercials that may be political or religious in nature.

 

2.3.4.    The Company may, at its sole discretion, restrict the broadcasting of advertising of subscription services.

 

2.3.5.    The Company may, at its sole discretion restrict the broadcasting of commercials advertising Adult content or services.

 

2.4.      Further Grounds for Rejection:

2.4.1.    Notwithstanding 2.3, the approval of the Advertisement Copy by the Company and/or the Broadcaster in terms of 2.3 shall not in any way negate and/or prejudice the Company’s and/or the Broadcaster’s right to reject any such Advertisement Copy as provided below:

 

2.4.2.    The Advertisement Copy must be delivered to the Company not less than 7 (seven) full working days before the date of the intended transmission in the following formats:

2.4.2.1.    Transmission copy — via acceptable digital streaming methods.

 

2.4.3.    The Advertiser shall, and the Advertising Agent shall procure that the Advertiser shall, ensure that it has cleared and paid for all rights (and associated usage rights) in respect of any musical works and/or sound recordings contained in the Advertisement Copy or in relation to the recording, synchronisation, reproduction, production, broadcast, transmission and distribution of the Advertisement Copy and has delivered (together with the Advertisement Copy as provided for in 2.4.2) proof that it has complied with the requirements of all performing rights societies, including the SA Music Rights Organisation LTD (SAMRO), Britain’s Performing Rights Society (PRS) and/or where applicable, any other similar body.

 

2.4.4.    Notwithstanding anything to the contrary in this agreement, if the Company and/or the Broadcaster, in its/their sole and absolute discretion, decide/s that the Advertisement Copy is not acceptable in any respect, the Company shall notify the Advertising Agency or the Advertiser as the case may be of same in which event the Advertising Agency or the Advertiser as the case may be shall be obliged to supply an acceptable alternative copy as soon as possible and in any event not less than 5 (five) full working days prior to the date of the intended transmission. Should an alternative copy not be supplied or not be accepted by the Company and/or Broadcaster in its/their sole and absolute, the Company shall be entitled to be paid by the Advertising Agency or the Advertiser as the case may be in full for the advertising time booked.

 

2.5.      Non-Liability for ASA Decisions:

2.5.1.    The Company and the Broadcaster shall not be held responsible for any additions to, changes in, or deletions from the Advertisement Copy as required by the ASA and/or its successor/s in title and/or for the withholding or withdrawal of approval of any advertisement by the ASA and/or its successor/s in title and/or for any costs or consequential loss/es resulting from any such action of the ASA and/or its successor/s in title.

 

2.6.      Discretion of Company:

2.6.1.    The provisions of 2.3 and 2.4 above shall be without prejudice to any special arrangements for booking/s made at short notice in the Company’s sole and absolute discretion.

 

2.6.2.    The Company and/or the Broadcaster reserve/s the right, in its/their sole and absolute discretion and without incurring any liability, to decline to transmit any advertisement without giving any reason whatsoever in writing or otherwise for so doing, and in such instance the Advertising Agency or the Advertiser as the case may be shall not be liable to pay for any booked advertisement not televised by the Company and/or the Broadcaster.

 

2.6.3.    The Company and/or the Broadcaster reserve/s the right to restrict any repeat transmissions of the same advertisement.

 

2.6.4.    The Company and/or the Broadcaster reserve/s the right in its/their sole and absolute discretion to refuse advertisements advertising more than one product.

 

2.7.      Granting of Credit:

2.7.1.    An Advertising Agent or Advertiser as the case may be shall be entitled to credit facilities from the Company only if such Advertising Agency or Advertiser, within the sole and absolute discretion of the Company, meets the credit granting requirements of the Company from time to time, including the receiving and putting into place of such securities as the Company may from time to time in its sole and absolute discretion require.

 

3.        Advertising Transmissions

3.1.      Booking Applications & Amendments

3.1.1.    Booking applications or amendments to booking applications must be received from the Advertiser or Advertising Agent by the Company in writing no later than 7 (seven) working days prior to the intended transmission date.

3.1.1.1.    In the event that booking applications or amendments are received later than 7 (seven) working days prior to broadcast, the Company may (at its discretion) endeavour to transmit the relevant advertisements at the intended time, but accepts no responsibility or liability in the event of incorrect booking schedules, incorrect material being transmitted, material not being transmitted, or any other administrative errors whatsoever.

3.1.1.2.    The Company does not guarantee that the times and/or dates of transmission will be adhered to. If an advertisement is not transmitted on the day and in the time booked according to the rate agreed, the Company will endeavour to offer a transmission at some other time and/or some other date instead which may be acceptable to the Advertising Agency or the Advertiser as the case may be. If any offer of such a transmission is not acceptable (or not made), the original booking shall be cancelled and the Advertising Agency or the Advertiser as the case may be shall have no claim against the Company and/or the Broadcaster in respect of non-transmission or for any expenses or damages whatsoever incurred as a result thereof. The Company shall make no charge to the Advertising Agency or the Advertiser as the case may be for such booking but the Company shall be entitled to be paid by the Advertising Agency or the Advertiser as the case may be any fees and/or expenses the Company has incurred in respect of any facilities arranged or provided in terms of this booking.

3.1.2.    In the event of any significant alteration(s) to the programme schedule, the Company reserves the right to re-establish the breaks affected. Where there is a current booking in an affected break, the Company will consult with the Advertising Agency or the Advertiser as the case may be and endeavour to agree an alternative transmission time in any new break.

3.1.3.    The Company and/or the Broadcaster shall not incur any liability for any failure to transmit all or any part of any advertisement for any reason, or for any error in the advertisement transmitted, except that if a total failure to transmit or an incorrect transmission is due to the fault of the Company and/or the Broadcaster, the Company shall consult with the Advertising Agency or the Advertiser as the case may be to book an acceptable alternative transmission slot.

3.1.4.     Advertisements appearing within approximately 30 (thirty) minutes of the segment booked will be regarded as appearing within such segment and will accordingly not constitute a valid defence or cause by which the Advertising Agency or the Advertiser as the case may be may withhold payment due in terms of this Agreement.

3.1.5.    The Company will use its reasonable endeavours to adhere to advertisement rotation instructions but shall not be liable for any failure to comply with those instructions

 

3.2.      Cancellations

3.2.1.    Cancellations to booking applications must be received from the Advertising Agent or Advertiser by the Company in writing no less than 28 (twenty eight) days prior to the intended transmission date, failing which the Advertiser shall pay 100% of the total airtime value of such bookings:

3.2.1.1.    In the event of booking cancellations being received later than 7 (seven) working days prior to the intended transmission, the Company accepts no responsibility or liability for the transmission of any material incorrectly or erroneously.

 

3.2.2.    Unless the advertisement transmission bookings are cancelled in accordance with the provisions of Clause 3.2.1 above, an Advertising Agency or the Advertiser as the case may be who fails to deliver any Advertisement Copy in accordance with 2.2 and 2.3 above, remains liable for payment in full whether or not any of its advertisements are transmitted during the advertisement slots booked.

 

4.        Risk

4.1.      All risk in the delivery of the physical storage devices and other materials shall vest with the Advertiser or Advertising Agency as the case may be and the Company shall not assume any liability on any basis whilst it is stored on its premises. The Company, however, commits to safeguard it with due care as if it is its own property.

 

4.2.      All risk in the televised transmission of the Advertisement Copy and the content contained therein, shall vest with the Advertiser or Advertising Agency as the case may be and the Advertiser and/or Advertising Agency, each indemnify the Company, its licensees and assigns, and the directors, employees and agents of the aforegoing in full from any and all claims liabilities, damages and costs (including outside legal fees and court costs) arising from third parties with respect thereto.

 

5.        Materials and Property Liability

5.1.      While every reasonable care will be taken in respect of the Advertisement Copy, goods or equipment, the Company shall not accept liability and will not be held liable for the delay in delivery, loss or damage thereof, whether in the Company’s and/or the Broadcaster’s control or in transit and whether or not such Advertisement Copy, goods or equipment are supplied by the Company.

 

5.2.      However, unless otherwise instructed, any delivered Advertisement Copy will be destroyed by the Company without reference to the respective Advertising Agency or the Advertiser as the case may be if not collected within the following periods:

5.2.1.    SP Beta — 2 years after receipt thereof.

 

 

 

6.        Compensation

6.1.      Rates, Charges and Changes:

6.1.1.    Subject to the provisions of 6.3 below, all advertisement transmission bookings are accepted on the understanding that they will be paid for at the rate actually in force at the date of transmission.

 

6.1.2.    While as much notice as possible will be given of all changes, the Company reserves the right to change the advertisement rates and/or any of these Terms and Conditions by giving 1 (one) months or 30 (thirty) day’s notice (new rates as appear on the Company’s Rate Cards shall be regarded as sufficient notice as envisaged herein), and in the event of such a change, the rates payable and the Terms and Conditions applicable shall be those in force at the time of the advertisement transmission. The Advertising Agent or the Advertiser as the case may be shall at all times ensure that it is in possession of the latest Rate Cards in force from time to time.

 

6.1.3.    Scheduled programming may be subject to change and in instances where the change is deemed to be significant in either rating or audience profile, the Company reserves the right to renegotiate all slots and rates booked around such rescheduled programmes.

 

6.1.4.    The rates quoted on programme schedules issued by the Company must be related and read subject to the Rate Cards issued by the Company from time to time having relevance thereto.

 

6.1.5.    All rates quoted on the Rate Cards issued by the Company are VAT (value added tax) exclusive.

 

6.1.6.    The rates as quoted on the Rate Cards issued by the Company are solely for the information of the Advertising Agent or the Advertiser, as the case may be, and do not constitute an offer by the Company.

 

6.2.      Overdue Payments

6.2.1.    Notwithstanding anything to the contrary herein contained, all accounts shall be paid not later than 45 (forty five) days from the date of statement and if the Advertising Agency or the Advertiser as the case may be is in default of payment, the Company shall be entitled, without prejudice to its other rights and remedies for breach of Agreement, to refuse further transmissions of the advertisement and/or to deny the Advertising Agency or the Advertiser as the case may be the use or benefit of any other facilities and/or services procured in terms of this Agreement, and/or to cancel this Agreement and to recover any outstanding amounts which shall become immediately due, owing and payable. In such an event, the Advertising Agency or the Advertiser as the case may be shall pay all costs of the Company on the Attorney and own Client scale incurred in the recovery of such amounts, interest at the rate prescribed in these Terms and Conditions for overdue accounts as well as collection commission. It is further recorded that nothing contained in these Terms and Conditions shall prevent the Company from ceding any and/or all of its claims against the Advertising Agency or the Advertiser as the case may be to a third party.

 

6.2.2.    Any account not paid on due date in accordance with the date of payment as prescribed in 6.2.1 above shall be subject to interest being levied thereupon at the rate 1.5% (one and a half percent) above the prevailing prime lending interest rate as quoted and published from time to time by ABSA Bank Limited in South Africa.

 

6.2.3.    In the event of Advertising Agency or the Advertiser as the case may be not paying any account on due date in accordance with the terms as prescribed in 6.2.1 above, the Company reserves the right, without prejudice to all and/or any of its other rights, not to accept further bookings from the Advertising Agency or the Advertiser as the case may be.

 

6.2.4.    Failure by the Company to render or dispatch Statements will not affect the obligation of the Advertising Agent or the Advertiser as the case may be to make payment as required in accordance with these Terms and Conditions and shall not affect any early settlement discounts allowable or disallowable in accordance with these Terms and Conditions.

 

6.2.5.    The existence of a query of any individual item in an account will only affect the due date of payment of that individual item. The Advertising Agency or the Advertiser as the case may be shall notify the Company of any query in writing within 7 (seven) working days of receipt of the account. This notification must include the reason for the query and should be addressed to the Financial Director of the Company. The Advertising Agency or the Advertiser as the case may be may not bring any item into query after this time. In the event that a credit note and re-invoice is required, then the balance will be paid within 7 (seven) working days of the new Statement date. In the event of a query being resolved in favour of the Company, the amount in query will be subject to the full rate of any interest payable by virtue of 6.2.2.

 

6.3.      Early Settlement Discounts

6.3.1.    The Company will in its sole and absolute discretion allow, on application, an early settlement discount to the Advertising Agent or the Advertiser as the case may be of up to but not exceeding:

6.3.1.1.    16,5% (sixteen and a half percent) of the Account Statement should such Account be paid not later than 45 (forty five) days from the date of statement and provided that the necessary guarantees have been lodged with the Media Credit Co-ordinators (MCC) by the Advertiser/Agency; or

6.3.1.2.    12.5% (twelve and a half percent) or 15% (fifteen percent) of the Account Statement should the Advertiser/Agency not be a member of the MCC.

6.3.1.3.    No early settlement discounts of whatsoever nature shall be payable by the Company on any interest and/or penalty charges payable and/or paid in accordance with the provisions of these Terms and Conditions.

6.3.1.4.    The early settlement discounts referred to in 6.3.1 and 6.3.1.2 will only be allowed if all accounts of the Company have been paid in full and timeously in accordance with the terms allowed by the Company in terms of these Terms and Conditions, or at the sole and absolute discretion of the Company, at least within the period referred to in above.

 

 

 

 

7.        Warranties and Indemnity

7.1.      The Advertising Agency or the Advertiser as the case may be represents, warrants and undertakes that:

7.1.1.    It will be responsible for obtaining and paying for, and has obtained and paid for, all necessary licenses, consents and clearances for the use and transmission of the Advertisement Copy, including but not limited to any lyrics and/or musical works and/or sound recordings synchronised thereto and/or recorded and/or appearing therein, any copyright material owned by any third party appearing therein and/or the appearance of any person and/or property owned by a third party contained therein; and

 

7.1.2.    No Advertisement Copy will breach the trademark copyright, personality rights, rights of association or any other rights of another, nor shall it be defamatory towards any person and/or entity whomsoever; and

 

7.1.3.    The Advertisement Copy or advertisement broadcast on behalf of the Advertiser will not be illegal or actionable for any reason and will comply with all legal and regulatory requirements applicable thereto. It indemnifies and keeps the Company and/or the Broadcaster and/or its/their licensees and assigns and the directors, officers, employees and agents of the foregoing indemnified in full against all actions, proceedings, costs (including outside legal fees and court costs, damages, expenses, penalties, claims, demands and liabilities of any kind (including those arising from any third party) arising from any breach of the above warranties and/or arising from the use, recording, broadcasting or transmission of any Advertisement Copy supplied by or transmitted on behalf of the Advertising Agent or the Advertiser as the case may be.

 

7.1.4.    It hereby indemnifies and holds the Company and/or the Broadcaster and/or its/their licensees, and assigns and the directors, officers, employees and agents for the aforegoing harmless against any claims for damages to property or personal injuries, infringement of copyright, defamation, losses, legal costs or claims of any kind howsoever arising out of, in respect of or as a result of the use, recording and/or broadcasting and/or transmission of advertisements or the use and/or access by the Advertising Agent or the Advertiser as the case may be of and/or facilities provided by the Company and/or the Broadcaster.

 

7.2.      Notwithstanding anything to the contrary herein contained, the Advertising Agent or the Advertiser as the case may be agrees, confirms and warrants that all its employees from time to time shall have all the necessary and relevant authority to act and liaise with the Company on behalf of the Advertising Agent or the Advertiser as the case may be and to bind the Advertising Agent or the Advertiser as the case may be to the in terms hereof.

 

7.3.      The Advertising Agent or the Advertiser as the case may be indemnifies and holds the Company and/or the Broadcaster and/or its/their employees harmless against any claims for damages and/or costs whatsoever and howsoever arising out of any changes to the Broadcaster’s programmes and/or times as advertised.

 

7.4.      Should any such claim be made against the Company and/or the Broadcaster, it shall be entirely in the Company’s and/or the Broadcaster’s discretion as to whether it/they admit/s or deny/ies any such claim and the Company and/or the Broadcaster reserve/s the right to defend any such claim brought against it/them and to proceed to the final end and determination thereof and to lodge any appeal or appeals to any Court or Courts, to which it/they have/has the right to do so and in addition shall have the right to compromise, abandon or settle any claim against it/them and to nominate legal representatives and to brief Counsel in connection therewith, and the Advertising Agent or the Advertiser as the case may be shall be liable for and shall pay all costs, charges and expenses incurred by the Company and/or the Broadcaster in connection therewith or otherwise in addition to all sums of money whether for damages, costs, charges, expenses or otherwise howsoever which the Company and/or the Broadcaster may be ordered to pay to the said Plaintiff in the said action or agree to pay in regard to the said actions on the advice of its/their legal representative/s and/or Counsel/s.

 

7.5.      In the event of the Company having incurred any disbursements of whatsoever nature, including that in respect of legal opinions/advices, etc., in the exercise of its sole and absolute discretion as to whether to refuse or allow the transmission of any advertisement in terms of these Terms and Conditions, such disbursements shall be for the sole and absolute account of the Advertising Agent or the Advertiser as the case may be.

 

7.6.      Neither the Company nor the Broadcaster make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the services provided in terms of this Agreement and all warranties, which are implied or residual at common law, are hereby expressly excluded. In particular, the Advertising Agency or the Advertiser as the case may be specifically acknowledges and agrees that spill over of transmission is an inevitable and internationally accepted consequence of digital satellite television distribution. As such, neither the Company nor the Broadcaster provide any guarantee that the Advertisement Copy shall not be transmitted or received in countries, territories or regions outside of those expressly elected for distribution, broadcast and/or transmission by the Advertiser or Advertising Agency, and neither the Company nor the Broadcaster can and shall be liable for the consequences of any such spill over of transmission whatsoever. The responsibility for obtaining all necessary clearances and consents remains solely that of the Advertising Agency or Advertiser (as the case may be) as set out in clause 7.1.1 above.

 

7.7.      Neither the Company nor the Broadcaster makes any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the viewership numbers provided by the Company, Broadcaster, SAARF, or any source whatsoever. The Advertising Agency or the Advertiser as the case may be specifically acknowledges and agrees that variations in such numbers are beyond the control of the Company or Broadcaster, and that no right of cancellation or compensation shall arise due to a revision in viewership numbers after an advertisement has been placed and before it is broadcast, or after the advertisement has been broadcast.

 

8.        Further Rights and Obligations

 

8.1.      The Company shall have the right, in the event of the Advertising Agency committing any act of insolvency in terms of the Insolvency Act as amended, to summarily or in any act by Advertising Agency constituting a breach as regulated by clause 10, to cancel this Agreement and in such instance to revert to the Advertiser and collect any outstanding payments from the Advertiser, without prejudice to any of Company’s rights and remedies against the Advertising Agency.

 

8.2.      The Company hereby establishes and confirms that an implicit hypothec is placed on all products delivered by the Advertising Agency or Advertiser as the case may be to Company as security for non-payment by any of the aforementioned.

 

8.3.      The Advertising Agency or Advertiser as the case may be, may not offset any double payment or incorrect payment made by it to any other party that was due to Company, by withholding any monies due to Company for whatever reason on any other accounts. The Advertising Agency or Advertiser as the case may be shall always be personally liable for payment of any advertising bookings made with Company.

 

8.4.      No Advertising Agency or Advertiser as the case may be shall, without the prior written consent of the Company first having been had and obtained, publish any information in connection with any advertisement which has been transmitted or is scheduled for transmission by the Broadcaster. The Advertising Agent or the Advertiser as the case may be shall under no circumstances whatsoever use any intellectual property/material belonging to the Company and/or the Broadcaster without its/their written consent first having been had and obtained.

 

8.5.      Unless the Company advises the Advertising Agent or the Advertiser as the case may be to the contrary by giving 1 (one) months written notice in that regard, no additional levy will be payable by the Advertising Agent or the Advertiser as the case may be in respect of the Marketing Industry Trust Levy. The Company will contribute the ruling percentage to the Marketing Industry Trust from its nett income after deduction of any client settlement discounts applicable in terms of these Terms and Conditions.

 

8.6.      The Advertising Agency or Advertiser shall not be entitled to cede or assign any rights and/or obligations, which it may have in terms of this Agreement without the prior written consent of the Company.

 

9.        Force Majeure

9.1.      The Company shall not be deemed to be in breach of this Agreement or otherwise liable to the Advertiser or Advertising Agent (as the case may be) as a result of any delay or failure in the performance of its obligations under this Agreement if and to the extent that such delay or failure is caused by an Event of Force Majeure and the time for performance of the relevant obligation(s) shall be extended for the period of such Event of Force Majeure.

 

9.2.      In the event of the Company’s and/or Broadcaster’s transmission activities being affected, restricted, curtailed or prevented by an Event of Force Majeure, the Company may at any time, notwithstanding anything to the contrary herein contained, forthwith terminate this Agreement without prejudice to the Company’s right to be paid by the Advertising Agency or the Advertiser as the case may be in terms of these Terms and Conditions at the time of such termination for services delivered up to the point of termination.

 

10.     Breach

10.1.   In the event of the material breach of any of the terms and conditions of this Agreement by either party hereto and failure of such party to remedy such breach within 14 (fourteen) days after receipt of a written demand by the aggrieved party to effect such remedy, the aggrieved party shall be entitled to terminate this agreement forthwith without notice to such other party, and such termination shall be without prejudice to any right of the aggrieved party to recover, inter alia, any costs, damages or expense arising from or consequent upon such breach, provided that any breach arising out of an Event of Force Majeure shall exempt the Company from any liability for specific performance or damages arising out of such breach during the continued existence of such Event of Force Majeure. The entire liability of Company and the Advertising Agency or Advertiser’s exclusive remedy for damages from any cause related to or arising out of this Agreement, regardless of the form of action, whether in contract or in delict, will not exceed the aggregate of the fees and charges paid by the Advertising Agency or Advertiser to Company under this Agreement for the placement of the advertisement from which the damage arose.

 

11.     Arbitration

11.1.   Separate, divisible agreement

11.1.1.This clause is a separate, divisible agreement from the rest of the agreement and shall:

11.1.1.1.Not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the agreement and not to this clause. The parties intend that any such issue shall be subject to arbitration in terms of this clause;

11.1.2.Remain in effect even if the agreement terminates or is cancelled.

 

11.2.   Disputes subject to arbitration

11.2.1.Any dispute arising out of or in connection with this agreement or the subject matter of this agreement, including, without limitation, any dispute concerning –

11.2.1.1.the existence of the agreement apart from this clause;

11.2.1.2.the interpretation and effect of the agreement;

11.2.1.3.the parties’ respective rights or obligations under the agreement;

11.2.1.4.the rectification of the agreement;

11.2.1.5.the breach, termination or cancellation of the agreement or any matter arising out of the breach, termination or cancellation;

11.2.1.6.damages in delict, compensation for unjust enrichment or any other claim, whether or not the rest of the agreement apart from this clause is valid and enforceable

11.2.1.7.shall be decided by arbitration as set out in this clause 11.

 

11.3.   Appointment of arbitrator

11.3.1.Such arbitration shall be by a single arbitrator who shall be:

11.3.1.1. selected by agreement between the parties within 5 (five) working days of either party calling

11.3.1.2.for agreement, failing such agreement;

11.3.1.3.nominated on the application of either party by the chairman for the time being of

11.3.1.4.the Arbitration Foundation of Southern Africa.

 

11.4.   Award binding

11.4.1.The award of the arbitrator shall be final and binding on the parties.

 

11.5.   Confidentiality of arbitration proceedings

11.5.1.The parties, any arbitrator, and their agents or representatives, shall keep confidential and not disclose to any non-party the existence of the arbitration, non-public materials and information provided in the arbitration by another party, and order or awards made in the arbitration, except to the extent necessary to enforce the order or award.

11.5.2.This confidentiality provision survives the termination of the agreement and of any arbitration brought pursuant to the agreement. This confidentiality provision may be enforced by an arbitral tribunal or any court of competent jurisdiction, and an application to court to enforce this provision shall not waive or in any way derogate from the agreement to arbitrate.

 

12.     General

12.1.   This Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof, and shall supersede any and all prior agreements, representations or understanding between the parties, whether written or oral. No terms and/or conditions other than those set forth herein shall be binding upon the Company unless it is reduced to writing and signed by the Company and the Advertising Agency or the Advertiser as the case may be or their duly authorized representatives.

 

12.2.   Neither party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced the Agreement between the parties or not.

 

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

 

12.4.   Should any of the terms and conditions of this Agreement be held to be invalid, unlawful or unenforceable, such terms and conditions will be severable from the remaining terms and conditions which will continue to be valid and enforceable.

 

12.5.   This Agreement shall be interpreted, construed and executed in terms of the laws of the Republic of South Africa and shall, subject to Clause 11 above, be subject to the jurisdiction of any competent court in South Africa.

 

12.6.   Nothing in this Agreement shall be deemed to constitute a joint venture, partnership or relationship of agency or employment between the parties.

 

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