STANDARD TERMS & CONDITIONS
EFFECTIVE: 1 JANUARY 2019
DIGITAL – TERMS AND CONDITIONS
1 The Parties
1.1 The parties to this agreement Perform Digital Media and the party whose details are fully set out on the Insertion Order as part of this agreement hereinafter referred to as the “Advertiser”.
1.2 The Advertiser hereby acknowledges and agrees that the Advertiser will be responsible to fulfil or procure fulfillment of all its obligations as set out in this agreement and that the Advertiser will ultimately be liable to Perform Digital Media for fulfillment of all of its obligations under this agreement.
1.3 Annexures, addendums or schedules to this agreement form an integral part hereof. If any provision in an annexure, addendum or schedule is in conflict with a provision(s) in this agreement, effect shall be given to the other provision(s) in this agreement.
2.1 For the sake of convenience and clarity, the following words shall bear the meanings assigned to them below :
2.1.1 “Advertisement(s)” means any text, graphics, image, content or any other marketing or promotional material provided by the Advertiser to Perform Digital Media for placement within Perform Digital Medias’ digital properties as set out on the first page;
2.1.2 “Campaign(s)” means all of the advertisements that shall be placed within Perform Digital Medias’ web properties in accordance with the details set out in this agreement collectively;
2.1.3“Insertion Order” means the document headed ”Online Advertising Agreement” and/or “IO” stipulates the details of the Advertiser and the placement of the advertisements; and
2.1.4 “This agreement” means the first page, all additional numbered pages, the terms and conditions set out herein and any annexure, schedule or addendum attached hereto.
2.1.4 “This agreement” means the first page, all additional numbered pages, the terms and conditions set out herein and any annexure, schedule or addendum attached hereto
3 Placement of Advertisements
3.1 Material, image and/or content, required by Perform Digital Media to give effect to this agreement, needs to be supplied to Perform Digital Media, in such format as Perform Digital Media may specify, at least 5 (five) working days prior to the campaign commencing. Perform Digital Media shall not be obliged to place any advertisement that does not satisfy its technical requirements with regards to advertising creative dimensions, le type and le size.
3.2 Perform Digital Media will provide Advertiser with reports on advertisements placed within Perform Digital Media’s digital properties as per Auto Campaign Frequency Reporting field specified on Insertion Order.
3.3 The placing of advertisements is subject to availability of inventory. Whilst every effort will be made to serve all advertisements as indicated in this agreement, strict compliance will not always be possible and Perform Digital Media cannot be held liable for any advertisements not placed as set out in this agreement and/or any changes in the placement of advertisements.
3.4 Perform Digital Media reserves the right to :
3.4.1 Serve any advertising on Perform Digital Medias’ digital properties, including (without being limited to) advertising relating to competing products and/or services;
3.4.2 Change the format, layout and/or look-and-feel of Perform Digital Medias’ digital properties;
3.4.3 Include any link in the web pages within Perform Digital Medias’ web properties that Perform Digital Media, in its sole discretion, deems appropriate;
3.4.4 Reject any advertisement that is improper, immoral or unlawful. The client will be duly informed of such decision and allowed 48 hours to rectify the advertisement, failing which the client will remain liable for the total campaign value whilst Perform Digital Media will not be liable to serve any advertising on such campaign until the rectified material has been received.
3.4.5 Reject any campaigns and/or advertisements that are not appropriate to Perform Digital Media’s viewers, or in conflict with Perform Digital Medias’ business interests. The client will be duly informed of such decision and the applicable campaign will be cancelled with immediate effect with no obligations to the client or Perform Digital Media;
3.5 All bookings are subject to availability on receipt of a signed Insertion Order (IO).
3.6 All bookings are subject to approval by the individual media owners.
3.7 IO’s together with all relevant creative/material must be received no less than three days before campaign starts.
3.8 If Creative/material is not supplied in the stipulated three day deadline the campaign will be charged for in full.
3.9 In cases where campaign placements are being shifted from one site to another, a signed amendment document must be submitted.
3.10 Rates are nett and exclude all negotiated discounts and incentives
3.11 Please note that impressions are booked on a daily basis, therefore your invoice will reflect the billing per day, for the current month only.
3.12 All campaigns shall be monitored, reported on and invoiced based on Perform Digital Media’s inventory management system.
4 Duration & Cancellation
4.1 This agreement shall come into effect on the date when it is counter signed by an authorized representative of Perform Digital Media (“the effective date”) and shall endure until the end date set out on the Insertion Order (unless otherwise agreed in writing), subject to the right of either party to terminate the agreement by means of twenty-eight (28) days prior written notice to such effect to the other party.
4.2 In the event of termination of this agreement for any reason whatsoever, Perform Digital Media shall forthwith remove all advertisements that may appear on Perform Digital Medias’ digital properties in terms of this agreement.
4.3 Cancellation by the Advertiser will only be effected through the submission of a written cancellation notice, which must reach Perform Digital Media twenty-eight (28) days before the effective date of cancellation. The Advertiser shall remain liable for all advertisements placed until the effective date of cancellation. Should the Advertiser insist on a waiver of the cancellation notice period, i.e. immediate cancellation of the campaign, Perform Digital Media will be entitled to hundred percent (100%) of the originally booked campaign value, i.e. the full Online Advertising Agreement value will be payable.
5.1 In consideration for the advertisements served in terms of this agreement, the Advertiser will pay Perform Digital Media the amounts set out in this agreement
5.2 Perform Digital Media shall provide the Advertiser with a monthly VAT invoice. The amounts set out in the VAT invoice will be payable within the agreed payment period.
5.3 Perform Digital Media shall be entitled to give the Advertiser reasonable written notice which may include an e-mail notification of any increase in any amount set out in this agreement.
5.4 Should the Advertiser fail to pay any amount to Perform Digital Media by due date, Perform Digital Media shall be entitled, in its discretion and without prejudice to any other rights which it may have in law, forthwith cancel this agreement or suspend performance of its obligations without notice to the Advertiser.
6 Intellectual Property Rights
6.1 The Advertiser hereby grant to Perform Digital Media a worldwide, royalty free license to use the advertisement, Advertiser name, trademark, logo, brand name and/or domain name to the extent necessary to give effect to the provisions of this agreement.
6.2 The Advertiser hereby warrant that the Advertiser is, and at all relevant times will be, the lawful owner of the copyright of the advertisement and all the material and content provided by the Advertiser to the Web for the purposes hereof and hereby irrevocably and unconditionally indemnify Perform Digital Media and agree to hold Perform Digital Media harmless against any claim made by any person, howsoever arising from any infringement of copyright and/or infringement of any other intellectual property rights or other third party rights by the advertisements and/or any other material provided by the Advertiser to Perform Digital Media.
6.3 The parties agree that, except where specifically provided otherwise in this agreement, no party shall obtain any rights of whatsoever nature in or to the intellectual property rights of the other party and that any intellectual property rights developed during the term of this agreement by Perform Digital Media or by the parties acting jointly, shall vest exclusively in Perform Digital Media.
6.4 The Advertiser will not be entitled to use any of Perform Digital Media trademarks, logos, brand names, domain names or other marks without Perform Digital Media’s prior written approval.
7 Limitation of Liability
7.1 The Advertiser acknowledge that neither Perform Digital Media nor its respective Publishers has no knowledge of, nor in any way contributes to, nor approves the advertisement and/or any other content provided to Perform Digital Media or its respective Publishers in terms of this agreement and that certain kinds of advertisements, content and conduct may be offensive, unlawful, in breach of codes of conduct binding on Perform Digital Media, violations of legislation, violations of the common law generally or violations of the requirements or rules of any regulatory authority and that certain kinds of advertisements, content and conduct may cause harm to the name, goodwill and reputation of Perform Digital Media or its respective Publishers. The Advertiser therefore agrees that Perform Digital Media or its respective Publishers may, without derogating from any other rights that it may have, terminate this agreement with immediate effect and without notice to the Advertiser, should Perform Digital Media or its respective Publishers, in their sole discretion, be of the opinion that the Advertisers’ advertisement and/or any of the content accessible via link from the advertisement or any conduct within the website accessible via a link from the advertisement is offensive, unlawful or harmful.
7.2 The Advertiser agrees that nothing that Perform Digital Media does in the exercising of its rights or the performance of its obligations in terms of this agreement or in the carrying on of its business generally shall be construed as an assumption of responsibility or liability by Perform Digital Media for the advertisement and/or the content accessible via a link from the advertisement and/or the conduct carried on the website accessible via a link from the advertisement.
7.3 The Advertiser hereby warrant to and in favour of Perform Digital Media that the performance by Perform Digital Media of its obligations under this agreement will not result in the breach of any applicable law or any third party rights and the Advertiser hereby irrevocably and unconditionally indemnify Perform Digital Media and agree to hold Perform Digital Media harmless from and against any loss, costs, damages and/or claims suffered or incurred by or instituted against Perform Digital Media as a result of a breach of this warranty.
7.4 Nothing herein or that Perform Digital Media does in performance of its obligations in terms hereof, shall be interpreted so as to give Advertiser any form of entitlement in respect of Perform Digital Media’s web properties, other than as provided for herein.
7.5 Notwithstanding any other provision under this agreement, neither party shall be liable to the other party for any indirect and/or consequential damages directly or indirectly resulting from (relating to) this agreement in any manner whatsoever.
Notwithstanding termination of this agreement, the parties agree to treat all information, in whatever form and howsoever recorded, that may reasonably be argued to have commercial value and that a party receives from the other party as a result of this agreement (“confidential information”), as private and confidential and safeguard it accordingly. The parties furthermore agree not to use or disclose or divulge or copy or reproduce or publish or circulate or reverse engineer and/or decompile or otherwise transfer, whether directly or indirectly, any confidential information to any other person and shall take all such steps as may be reasonably required to prevent confidential information falling into the hands of unauthorised persons