clause headings are for convenience and shall not be used in its interpretation;
unless the context clearly indicates a contrary intention an expression which denotes:
any gender includes the other genders;
a natural person includes an artificial person and vice versa;
the singular includes the plural and vice versa;
any computation of time referring to days means any day, excluding Saturdays, Sundays and Public Holidays;
the following expressions shall bear the meanings assigned to them below and cognate expressions bear corresponding meanings –
“Advertiser” means the person (natural or juristic) reflected ex facie on the Booking Schedule to this Agreement as the Advertiser;
“Advertiser Contact” means the individual nominated by the Advertiser and recorded as such in the Booking Schedule, authorised on behalf of the Advertiser to accept and make all communications necessary for the implementation of this Agreement;
“Advertising” or “Advertisement” means advertising the Content on behalf of the Advertiser by means of or through the Advertising Mediums, including maintenance and repair of the Advertising Mediums;
“Advertising Medium” means the advertising medium on or through which the Content is displayed/flighted by the Company in accordance with the terms of this Agreement. The Advertising Medium may comprise one or more of the following formats, namely static/printed format, Windows format or digital format (or such other format as the Company may provide from time to time. The Advertising Medium/s selected by the Advertiser shall be recorded in the Booking Schedule;
“Agreement” means this Agreement and any annexure or addendums thereto;
“Artwork” means the artwork to be provided by the Advertiser to the Company in accordance with the terms of this Agreement. The Artwork will be used by the Company in order to create the Content. The Content is displayed by the Company on the Advertising Medium/s in accordance with the terms of this Agreement;
“Booking Schedule” means the Booking Schedule attached hereto and any further Booking Schedule/s concluded between the Parties;
“Campaign Costs” shall mean all and any costs, made up of the Production and Flighting Cost and the Media Rental and relating to the campaign as reflected in the Booking Schedule;
“Commencement Date” means, subject to clause 2 the date stated on the Booking Schedule to be the Commencement Date provided that in the event that the flighting of the Content on the Advertising Medium/s is delayed due to the exclusive fault of the Company, the Commencement Date will be the day on which the Content is first flighted/installed on the Advertising Medium/s;
“Company” means Smart Cart (Proprietary) Limited (Registration no: 2004/033226/07) trading as Smart Media and duly registered in terms of the Company laws of the Republic of South Africa;
“Content” means the content that has been created from the Artwork, and which Content is displayed/flighted by the Company on the Advertising Medium/s in accordance with the terms of this Agreement;
“Media Rental” means the total amount, excluding VAT, billed by the Company to the Advertiser for any Advertising (excluding the Production and Flighting Costs), which may be reflected in the Booking Schedule as a monthly or other periodic payment;
“Party/ies” mean the Parties to this Agreement;
“Production and Flighting Costs” shall mean the costs pertaining to manufacturing of the Advertising and the cost of flighting (installing) same, excluding VAT reflected in the Booking Schedule;
“Retailer” means the retailer in who’s Store/s the Advertising Medium/s will be situated, for the purposes of the Advertising;
“Store/s” means the location/s at which the Company displays the Advertising Medium/s, from time to time, in terms of this Agreement, as reflected in the Booking Schedule;
“Artwork Specifications” means the specifications with which the Artwork shall comply in order for such Artwork to be usable for each of the Advertising Mediums as provided by the Company to the Advertiser together with a Booking Schedule;
“VAT” means Value Added Tax as defined in the Value Added Tax Act, No 89 of 1991 (as amended from time to time);
“Website” means the Company’s website, namely smartmedia.co.za or such other website advised by the Company to the Advertising from time to time;
“Windows” means shopfront windows;
“Windows Campaign Terms” means the terms and conditions applicable to Advertising to be effected in terms of this Agreement on or through the Windows Advertising Medium. The Windows Campaign Terms are available on the Website. Where the Parties, in terms of a Booking Schedule agree to the use of the Windows Advertising Medium, such Advertising shall be provided in accordance with the terms of this Agreement read together with the Windows Campaign Terms. The Advertiser is deemed to have read and understood the Windows Campaign Terms. In the event of a conflict between the terms of this Agreement and the Windows Campaign Terms, the Windows Campaign Terms will take precedence.
The rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting of this Agreement, shall not apply.
The Advertiser hereby hires the Advertising services of the Company, which hereby undertakes to cause the Content to be produced from the Artwork provided by the Advertiser and thereafter flighted and displayed through or on the Advertising Medium/s at various Stores for a fixed period as stipulated in the Booking Schedule (“Campaign Period”), subject to the terms and conditions of this Agreement.
COMMENCEMENT AND DURATION
This Agreement shall commence on the Commencement Date and shall remain in force and effect for the Campaign Period as recorded in the Booking Schedule.
The Advertiser, represented by an authorised representative shall sign the Booking Schedule. Notwithstanding that this Agreement is not signed by the Advertiser, where the Advertiser provides the Company with a written instruction to proceed with any Advertising in terms of a completed Booking Schedule, the Advertiser will be deemed to have accepted the terms and conditions recorded herein, in full and the Advertising will be provided by the Company in accordance with these terms and conditions.
The Advertising Mediums will at all times remain the property of the Company.
The Advertiser shall not under any circumstances be entitled to determine the positioning of the Advertising Mediums within a Store or interfere with or reposition the Advertising Mediums.
The Advertiser shall notify the Company forthwith in writing upon it becoming aware of any damaged or missing Advertising Medium/s. Should any Advertising Medium be damaged or be missing, the Company shall repair or replace the Advertising Medium/s concerned at its cost, within a reasonable time after becoming aware thereof.
The Advertiser shall notify the Company forthwith in writing upon it becoming aware of any damaged or missing Content from the Advertising Medium/s. Should any Content within the Advertising Medium/s be damaged or be missing, the Company shall repair or replace the Content concerned, however the replacement costs thereof (which shall not exceed the Production and Flighting Costs in the Booking Schedule) shall be solely for the account of the Advertiser, which shall be obliged to pay same on demand.
All Artwork shall require the Retailer’s Approval. In order to enable the Company to obtain approval of the Artwork by the Retailer and to enable the Company to produce all Content, the Advertiser shall deliver suitable Artwork in accordance with the Artwork Specifications, to be provided by the Company to the Advertiser. Artwork which is intended for display in/on or through:
printed/static forma Advertising Medium/s shall be provided by the Advertiser to the Company at least 4 (four) weeks prior to the Commencement Date;
Windows format Advertising Medium/s shall be provided by the Advertiser to the Company at least 8 (eight) weeks prior to the Commencement Date; and
digital format Advertising Medium/s shall be provided by the Advertiser to the Company at least 14 (fourteen) business days prior to the Commencement Date.
In the event of late delivery of the Artwork by the Advertiser, the Company shall, at its discretion and notwithstanding its right to charge the Advertiser the Media Rental with effect from the Commencement Date (notwithstanding that the Content is not yet displayed in/on or through the Advertising Medium/s) and for the entire Campaign Period recorded in the Booking Schedule, be entitled to:
reduce the Campaign Period; or
vary the Commencement Date;
by at least the same number of days as the Advertiser delivered the Artwork late, provided that in the event that the late delivery of the Artwork has any cost implication for the Company, such cost shall be borne and paid for by the Advertiser on written demand by the Company, such demand to be accompanied by proof of such cost.
The Artwork provided by the Advertiser shall be of such a nature and quality as required in terms of the specification sheets provided by the Company to the Advertiser.
Save as recorded in this Agreement, all Production and Flighting shall be performed by the Company. The Advertiser shall not be entitled to produce its own Content for flighting by the Company save as recorded in this Agreement.
Subject to clauses 6.1, 6.6.3 and 6.6.4 the Advertiser will be entitled to produce its own Content for the digital format Advertising Medium/s, provided further that the Company shall, at its discretion be entitled to adapt such Content in order to install/flight such Content on the Advertising Medium/s.
The Advertiser accepts that strict compliance with its instructions may not be possible and the Company is accordingly vested with discretion to implement such instructions as near to the Advertisers’ instructions as may be possible.
The Advertiser shall deliver the Artwork to the Company at the sole cost and expense of the Advertiser.
The Company shall not be liable for any costs (which costs include re-production and/or re-flighting of any Content) should the Content be taken down, upon the Advertiser’s and/or the Retailer’s instructions.
The Advertiser warrants that it has read and understood and agrees to be bound by the Windows Campaign Terms.
The Advertiser acknowledges that the right to place the Advertising Mediums in the Stores is based on and subject to the relationship between the Company and the Retailer. Accordingly, the Advertiser acknowledges that it shall not be entitled to communicate with the Retailer in respect of the Advertising and/or the Content and/or the Advertising Medium/s.
COMPANY’S RIGHTS AND OBLIGATIONS
Reserves the right at its option to move the Advertising Mediums to a Store or Stores other than as specified on the Booking Schedule or to an alternative location within a Store, when the Company considers it appropriate to do so, at which time the Company shall immediately notify the Advertiser of the removal and the re-location. The Company shall use its reasonable endeavors to re-locate the Advertising Mediums at a location as near as possible with the same or similar advantages to the Advertiser as the original location.
Will make every effort to ensure that the Advertising Mediums are displayed at all times during the Campaign Period and that same are in good order and condition.
Reserves the right to cancel this Agreement on written notice to the Advertiser should it for any reason not be able to continue to comply with its obligations in terms of this Agreement. In such event the Advertiser shall be entitled to a proportionate reduction in the Media Rental, equivalent in value to the period that such Advertising Mediums are not displayed during the Campaign Period (the un-expired portion of the Campaign Period).
Shall not be obliged to produce and/or flight and Artwork that is not approved by the Retailer or that it deems, within its sole discretion to be in bad taste, offensive in any way, objectionable, unsuitable for display or likely to give offence.
Shall cause the Content to be delivered to the Stores. The delivery/courier costs related to such delivery are unknown as at the time of concluding the Booking Schedule. Accordingly, in addition to the Campaign Costs and in addition to any other costs recorded in the Booking Schedule, the Company shall charge the Advertiser in respect of such delivery (“Delivery Costs”). Any such Delivery Costs shall be paid by the Advertiser on written demand accompanied by the relevant proof thereof.
Shall flight the Advertiser’s Content (by causing same to be displayed in/on or through the Advertising Medium/s) as close as possible to the Commencement Date provided that the Advertiser has complied strictly with the terms of this Agreement in that, inter alia:
the Advertiser’s Artwork is in good taste and is not deemed by the Company to be offensive; and
at least 70% (seventy percent) of the Production and Flighting Costs have been paid in accordance with the provisions of this Agreement and any Delivery Costs have been paid in full; and
that the Retailer has approved the Artwork; and
that the Artwork was provided to the Company timeously and in accordance with the terms of this Agreement.
Shall endeavour to comply with the Advertiser’s instructions and requirements wherever possible.
The Company may refuse to display or continue to display in/on or through the Advertising Medium/s any Content which, in its sole discretion, is objectionable, unsuitable for display or likely to give offence or that has not been approved by the Retailer.
The Advertiser indemnifies the Company and the Retailer together with their directors, officers and employees against any claim, loss or damage (together with legal costs on the attorney and client scale), that either of them may suffer as a result of any Content being alleged and/or proved to be defamatory or harmful of any person (natural or juristic), or infringe on any third party’s intellectual property or other rights or for any other cause whatsoever. The Advertiser agrees to co-operate fully with the Company and its legal advisers in the event of any such claim.
INVOICE, PRICE AND PAYMENT
The Company requires the Advertiser, before commencing the Advertising services, to pay a deposit which, amount will be equivalent to an amount specified in clause 4 below or otherwise agreed to in writing between the Parties.
The Media Rental reflected on the Booking Schedule excludes VAT. The Advertiser shall pay the Media Rental reflected in the Booking Schedule by no later than 30 (thirty) days after the date of statement relating to the invoice raised in the course of the month.
The Company will render the Advertiser with a valid tax invoice in respect of:
Media Rental, monthly in advance; and
Production and Flighting Costs in accordance with clause 4.
The Advertiser shall pay an amount equal to 70% (seventy percent) of the Production and Flighting Costs as recorded in the Booking Schedule within 7 (seven) days after date on which the Booking Schedule is signed by the Advertiser. The balance of the Production and Flighting Costs shall be paid by the Advertiser immediately after the Content is displayed in/on or through the Advertising Medium/s against delivery by the Company to the Advertiser Contact of a so-termed “flighting receipt” issued by the Company.
The Production and Flighting Costs reflected on the Booking Schedule exclude VAT.
The Advertiser shall make payment of all amounts due to the Company in the manner as prescribed by the Company from time to time, to the Company’s bank account reflected on the Booking Schedule or as otherwise advised by the Company in writing (and confirmed by a director of the Company in writing) from time to time.
The Advertiser shall not be entitled to set off, withhold or delay any payments in terms of this Agreement for any reason whatsoever including but not limited to, any mistake, delay, omission or unaffected changes to the Advertising Mediums or any damage or destruction to the Content as a result of vis major, strikes, riots, lockouts, fire, floods, drought or any other cause beyond the Company’s control or otherwise.
CANCELLATION BY ADVERTISER PRIOR TO COMMENCEMENT DATE
This clause 9 is limited to a written notice of cancellation of this Agreement or any particular Advertising in terms of this Agreement, given and received prior to the Commencement Date.
Save for Clause 10 below and subject at all times to clause 3, the Parties hereby agree that should this Agreement (or any Booking Schedule) be cancelled by the Advertiser (on written notice to the Company) prior to the Commencement Date, such cancellation will be subject to the following:
Should the Advertiser cancel this Agreement at least 120 (one hundred and twenty) days prior to the Commencement Date (as reflected in the Booking Schedule), no cancellation fee will be due and payable by the Advertiser;
Should the Advertiser cancel this Agreement between 120 (one hundred and twenty) and 90 (ninety) days prior to the Commencement Date, a cancellation fee, equivalent to 25% (twenty five percent) of the total Media Rental payable by the Advertiser for the Campaign Period and as reflected in the Booking Schedule shall upon receipt of the written cancellation notice be due and payable by the Advertiser;
Should the Advertiser cancel this Agreement between 90 (ninety) and 60 (sixty) days prior to the Commencement Date, a cancellation fee, equivalent to 50% (fifty percent) of the total Media Rental payable by the Advertiser for the Campaign Period and as reflected in the Booking Schedule shall upon receipt of the written cancellation notice be due and payable by the Advertiser;
Should the Advertiser cancel this Agreement, within 60 (sixty) days of the Commencement Date, a cancellation fee, equivalent to 100% (one hundred percent) of the total Media Rental payable by the Advertiser for the Campaign Period and as reflected in the Booking Schedule shall upon receipt of the written cancellation notice be due and payable by the Advertiser.
Should the Advertiser cancel this Agreement, the Advertiser shall remain liable for all amounts due to the Company in respect of Production and Flighting Costs actually incurred by the Company as at the cancellation date.
The Advertiser acknowledges that the aforementioned cancellation fees represent a genuine pre-estimate of the liquidated damages suffered by the Company as a result of early termination of this Agreement.
No cancellation in terms of this clause 9 shall be valid unless given in writing by the Advertiser.
In the event of any non-payment or any other default by the Advertiser of any of its obligations in terms of this Agreement, the Company shall be entitled, but not obliged and without prejudice to any other rights which may be vested in it by law to suspend or cancel this Agreement (which shall include the removal of the Advertising Mediums and/or the Content displayed in/on or through the Advertising Mediums), without notice to the Advertiser.
In such event the Advertiser shall be immediately liable, not only for the amount owing to the Company to the date of such cancellation or suspension, as the case may be, but also for the full value of the incomplete portion of the Agreement which takes into account, inter alia, amounts payable by the Advertiser to the Company during the uncompleted portion of the Agreement, all amounts payable by the Company to the Retailer during the uncompleted portion of the Agreement and any loss of profit, which represents a genuine pre-estimate by the Parties of the liquidated damages which will be suffered by the Company on suspension and/or cancellation as contemplated herein.
The Advertiser shall be liable to the Company for all legal expenses (including collection fees) on the attorney and own client scale which shall include counsel’s fees per brief, in the event of (a) any default by the Advertiser or (b) any litigation with regard to the validity and enforceability of this Agreement.
No claim under this Agreement will arise against the Company unless the Advertiser has given the Company 14 (fourteen) business days’ written notice sent by pre-paid courier service, to rectify any defect or breach of this Agreement.
INDEMNITIES AND LIMITATION OF LIABILITY
The Company shall not be liable to the Advertiser for any loss of profit, goodwill or consequential losses of any kind whatsoever due to failure, delay or errors in any Advertisement or Content and the Advertiser specifically waives any claim which it may have against the Company.
The Company accepts no responsibility for loss or damage to the Content other than where such loss or damage is caused directly by the by the fault or negligence of the Company. In such event the Advertiser shall be responsible for the furnishing of further Artwork at its own cost and the Advertiser’s liability for all amounts due to the Company under this Agreement shall be unaffected thereby.
Where Content produced by the Company is damaged or destroyed, the Company shall not be liable for any direct, indirect or consequential loss of whatsoever nature.
The due performance in terms of this Agreement to be made by the Company shall be subject to variation or cancellation by the Company in the event of vis major, strikes, riots, lockouts, fire, floods, drought or any other cause beyond its control.
The Advertiser indemnifies the Company and/or the Retailer against any liability, whether in respect of damages, costs or otherwise that the Company or the Retailer may incur in terms of the Consumer Protection Act 68 of 2008 as a result of the display of any Content in/on or through the Advertising Medium/s on behalf of the Advertiser.
The Advertiser indemnifies and holds the Company harmless from and against any and all claims, losses, costs, delays, demands, damages, suits, judgements, penalties, liabilities, debts, expenses and causes of action and every other claim or litigation (including all costs thereof and attorneys’ fees) for bodily injury, illness, disease, or death to any person or third party personnel and/or loss of or damage to any third party property and/or for any and all other loss, damage or delay sustained by any third party which may in any manner arise from, or be incidental to the services/flighting/work, whether or not such has been caused or contributed to by the fault or negligence of any of the Company, including the sole negligence but excluding the gross negligence or willful misconduct of the Company.
The Advertiser is an independent contractor and nothing in this Agreement shall create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between the Parties.
The Advertiser acknowledges that in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provisions except as expressly provided herein, and all conditions, warranties or other terms implied by statute or common law are hereby excluded to the fullest extent permitted by law.
The Company shall be deemed to have performed its obligations in terms of this Agreement, duly and properly, unless and until the contrary is proved.
The Advertiser acknowledges that the Retailer shall be entitled (by notice to the Company) to withdraw the approval of any Store/s booked by the Company and/or approval of the Content and/or the approval of any particular location for the Advertising Mediums within a Store at any time. In such event (or in circumstances where the Content is not displayed, during the Campaign Period set out in the Booking Schedule, in/on or through the Advertising Medium/s in circumstances other than a breach of this Agreement by the Advertiser) the Advertiser shall be entitled to a reduction in the total Media Rental payable by the Advertiser for the Campaign Period and as reflected in the Booking equal to the pro rata period (calculated on a daily basis) by which the Campaign Period in respect of the particular Content is reduced, determined from the date that the Content is no longer displayed in/on or through the Advertising Medium/s.
The Retailer has the right, in its sole discretion, to refuse any Advertising and/or Content for any reason whatsoever.
Where the Advertiser requires the Company to complete a supplier application or to accept the Advertiser’s standard terms and conditions or any similar document/s (“Advertiser Documents”), it is agreed that in the event of a conflict between the Advertiser Document and this Agreement, the terms and provisions of this Agreement shall take precedence.
Should the Media Rental and/or Production Costs and/or any amounts due in terms of this Agreement not be paid on the due date, any such outstanding amount shall accrue interest at the prime (being the prime rate of interest applied by the Company’s bank) rate plus 3% (three percent) per annum, calculated monthly in arrears from date of default until date of payment.
A certificate by such bank as to the prime rate shall be prima facie proof of that fact.
Interest shall be payable on demand.
DOMICILIUM CITANDI ET EXECUTANDI
The Parties choose, as their domicilia citandi et executandi, their respective addresses set out on the Booking Schedule for all purposes arising out of or in connection with this contract at which addresses and notices arising out of or in connection with this contract, its breach or termination may validly be served upon or delivered to the Parties.
Either Party may from time to time decide to vary its domicilium or give notice as contemplated in this Agreement by giving written notice to the other Party and such notice must be posted by pre-paid registered post or hand-delivered or sent by electronic mail to the other Party’s domicilium and shall be presumed, unless the contrary is proven, to have been received by that Party on the tenth day after the date of posting or on the day of delivery/transmission, as the case may be.
CERTIFICATE OF INDEBTEDNESS
The Advertiser agrees that the amount due and payable to the Company from time to time, shall be determined and proven by a certificate issued by the Company and signed on its behalf by any duly authorized person, which authority need not be proven.
Such certificate shall be binding and be prima facie proof of the indebtedness of the Advertiser to the Company.
This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa and the Parties hereby agree to submit to the jurisdiction of the South African courts.
The Company shall have the right to institute any action in either the Magistrates Court or the High Court at its sole discretion, regardless of whether the quantum of any claim by the Company against the Advertiser exceeds the jurisdiction of the Magistrates Court.
The Advertiser shall not be entitled to cede or assign any rights and/or obligations which it may have in terms of this Agreement to any third Party.
Each clause in this Agreement is severable, the one from the other and if any clause is found by any competent court to be defective or unenforceable for any reason whatsoever, the remaining clauses shall not be affected and shall remain of full force and effect.
No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
The Parties agree that:
this Agreement represents the entire Agreement between the Advertiser and the Company and that no alterations or additions to this Agreement, including this clause, may be effected unless agreed to by both Parties, reduced to writing and signed by the Advertiser and a duly authorized representative of the Company;
this Agreement is applicable to all existing contracts between the Parties; and
the Advertiser acknowledges that it has read and understood each term of this Agreement and accepts same as binding.
the Advertiser warrants that the signatory to the Booking Schedule of which these standard conditions form a part has been duly authorized to contract on its behalf.
the signatory to the Booking Schedule hereby binds himself in his personal capacity as co-principal debtor in solidum for the full amount due to the Company and agrees that these standard conditions will apply mutatis mutandis to him.
the Advertiser acknowledges that no representations were made by the Company in regard to the services or any of its qualities leading up to this Agreement, nor has it relied on any such representations (if any) in entering into this Agreement.
the Advertiser agrees that neither the Company nor any of its directors, officers and employees will be liable for any negligent or innocent misrepresentation made to the Advertiser.