1. INTERPRETATION
1.1 The headnotes to the paragraphs in this agreement are for reference purposes only and shall not affect the interpretation of any part hereof.
1.2 Unless inconsistent with the context, the words and expressions set forth below shall bear the following meanings :
1.2.1 "the act" the Electronic Communications and Transactions Act No 25 of 2002;
1.2.2 "advertising" or "the advertisement" any illustrative and/or text material intended for placement on the web site(s), including banners, buttons, links utilising technology such as push technology, active technology or any other technology which may be developed allowing visitors to the web site(s) to view, hear, interact with, respond to or otherwise experience an advertising element;
1.2.3 "advertisement server software" the software utilised by JUST TIPPING, which enables STARBAL DOT NET CC to serve the advertising of the client to the web sites of the hosts;
1.2.4 "business day" any day other than a Saturday, Sunday or public holiday;
1.2.5 "host(s)" web site owner(s) and/or administrator(s) with whom STARBAL DOT NET CC has contracted in order to serve advertisements of a client to the web site(s) of such web site owners and/or administrator(s);
1.2.6 "impression" the serving of an advertisement to the web site of the host utilising the advertisement server software;
1.2.7 "Online Marketing Agreement" or “this agreement” shall mean this written document including pages 1 and 2 hereof and together with all written appendices, annexures, exhibits or amendments attached to it from time to time;
1.2.8 "the parties" STARBAL DOT NET CC and the Client, whose details are on pages 1 and 2 of this agreement;
1.2.9 "serve/service" the process by which advertisements or other data are relayed from one computer server to another, in this case utilizing the advertisement server software;
1.2.10 "web site" a set of graphic and textual elements comprising a page, or group of pages, accessible on the Internet, sharing a domain name; to which STARBAL DOT NET CC has agreed to serve the advertisements of the client, in accordance with the details set out on the fist page of the Online Marketing Agreement.
2. RECORDAL
1.3 STARBAL DOT NET CC undertakes to serve the Client's advertisements to the web sites subject to the following terms and conditions, as well as the details included under the Insertion Order Form, in exchange for the consideration.
3. TERM
3.1 This agreement will come into effect on the date of last signature of this agreement (“the effective date”) and will continue until the end of the 2009/2010 A1 GP, World Cup of Motorsport season from the effective date.
3.2 Should the host(s) web sites to which the advertising content is served experience down-time or technical problems resulting in the Client's advertising not gaining the period of exposure that is agreed upon in this agreement, STARBAL DOT NET CC shall extend the time period of this agreement on a pro-rata basis at no extra cost to the Client.
4. ORDER PROCEDURE AND SERVICE OF THE ADVERTISEMENTS
4.1 An order with STARBAL DOT NET CC is placed by the Client completing pages 1 and 2 of this agreement and signing it either physically in writing or by electronic signature and then delivering it to STARBAL DOT NET CC. Such signature must comply with the conditions of the Act. STARBAL DOT NET CC will then issue the Client with an invoice.
4.2 The Client shall provide to STARBAL DOT NET CC, in a format specified by STARBAL DOT NET CC, the advertisements which STARBAL DOT NET CC will serve to the web site(s) of the host(s). All material, image and/or advertising content required by STARBAL DOT NET CC to give effect to this agreement, must be received by STARBAL DOT NET CC at least five (5) business days prior to the date of change or the commencement of the Client's advertising campaign.
4.3 STARBAL DOT NET CC shall not be obliged to serve the changed advertisements if these change orders are submitted any more frequently than once every (10) ten business days
4.4 STARBAL DOT NET CC shall not be obliged to serve the advertisements if they do not satisfy the advertising content specifications of STARBAL DOT NET CC, as detailed on page 2 of this agreement, or those of the web site(s) of the host(s).
4.5 The right is reserved to withhold serving of any advertisement and to cancel any advertisement booking which has been accepted without assigning any reason therefore. No liability is accepted for losses arising from omissions or failure to advertise. STARBAL DOT NET CC shall not be responsible for the refusal of the host(s) to allow the advertisement to be served to a web site, in the event of which the parties may agree on an alternative web site, failing which, this agreement may be cancelled by either party in writing, and the parties shall owe no further obligations or liability to each other.
4.6 STARBAL DOT NET CC does not guarantee that the times and/or dates of the service of the advertisements will be adhered to. If an advertisement is not transmitted within the dates specified in any order confirmation and/or in a time band relevant to the rate agreed, STARBAL DOT NET CC will endeavor to serve the advertisements at some other time and or date which may be acceptable to the Client. If any offer for such alternative service is unacceptable to the Client (or is not made by STARBAL DOT NET CC), the Client shall have no claim against STARBAL DOT NET CC or the host in respect of such non-service, and STARBAL DOT NET CC shall not charge the Client for any non-service, but STARBAL DOT NET CC shall be entitled to claim any expenses or fees incurred in respect of arranging or providing any service which has taken place.
4.7 STARBAL DOT NET CC reserves the right to serve any advertising on the web site(s) of the host(s), including (without being limited to) advertising relating to competing products and/or services.
5. CONSIDERATION
5.1 In consideration for the services, the Client shall pay STARBAL DOT NET CC in accordance with the rates / sponsorship detailed on the first page of the Online Marketing Agreement.
5.2 Payment shall fall due on 30 (thirty) business days from date of the STARBAL DOT NET CC invoice, which invoice shall be issued monthly for the value of the advertising delivered in that period.
5.3 Failure by the Client to pay the monies due on the agreed terms will result in the immediate cancellation of this agreement, or any part thereof, without further prejudice to JUST TIPPING's right to claim damages or any other right which STARBAL DOT NET CC may have in terms of this agreement or by law.
5.4 Costs of production of any material, images and/or advertising content that must be delivered by the Client to STARBAL DOT NET CC in terms of this agreement are for the Client's own account, unless otherwise stated.
5.5 Unless otherwise agreed upon, tariffs quoted are inclusive of agency commission and exclusive of VAT.
5.6 Interest will be charged on any late payments at the prime rate of Nedbank Limited at that time.
6. LICENCE AND INTELLECTUAL PROPERTY RIGHTS
6.1 The Client hereby grants to STARBAL DOT NET CC a worldwide, royalty free license to use its' name, trade mark and/or domain name for the purposes of this agreement, provided that STARBAL DOT NET CC ‘s use thereof shall be limited to the extent that is necessary to give effect to the provisions of this agreement.
6.2 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, including (without being limited to) the intellectual property rights of the host(s) and that any intellectual property rights developed during the terms of this agreement shall vest exclusively in STARBAL DOT NET CC or the host(s).
7. ALTERATIONS OF THE RATES OR TERMS AND CONDITIONS
7.1 The placement of any advertising contemplated in this agreement is subject to the right of the host of a web site to make changes to such web site on an ad hoc basis. This could then impact the presentation of the Client's advertising. By negotiation with Client, STARBAL DOT NET CC will arrive at advertising exposure that at least equates with what was initially agreed upon.
7.2 In the event that the Client cancels this agreement within thirty (30) business days from the effective date, STARBAL DOT NET CC shall be entitled to claim fifty (50%) percent of all future / remaining rates that would have been paid by the Client to STARBAL DOT NET CC in respect of a specific advertising campaign. The claim shall remain liable for all rates due for the period to such cancellation.
8. WARRANTIES
8.1 The Client warrants that :-
8.1.1 the Client has the necessary power and authority to enter into this agreement;
8.1.2 the Client has all the licenses, rights and authority that are necessary to facilitate the fulfillment by them of its obligations in terms of this agreement;
8.1.3 the fulfillment by the Client of its obligations in terms of this agreement will not infringe the provisions of any law or regulation and will not infringe the rights, including the personality, proprietary and intellectual property rights, of any third parties; and
8.1.4 the advertisements do not infringe the provisions of any law or regulation and will not infringe the rights, including the personality, proprietary and intellectual property rights, of any third parties.
9. INDEMNITY AND LIMITATION OF LIABILILTY
9.1 The Client hereby indemnifies and holds STARBAL DOT NET CC harmless from and against any loss, claim, action, damage or expense suffered or sustained by STARBAL DOT NET CC pursuant to or arising out of the breach of the Client of any of its obligations, representations or warranties contained in this agreement, howsoever arising.
9.2 Notwithstanding the above, no party shall be liable to the other party in any circumstances for any indirect, contingent or consequential loss (including, but without being limited to, loss of revenue, loss of business or loss of profits) sustained or incurred by the other party, howsoever arising.
9.3 It is specifically recorded that STARBAL DOT NET CC is not responsible for any advertising, whether text, visual or otherwise, published on the web site(s) and STARBAL DOT NET CC shall not be responsible for any loss, claim, action, damage or expense suffered or sustained by the Client or any other third party arising out of the publication of the web site content by any entity or person. The Client hereby indemnifies and holds STARBAL DOT NET CC harmless from and against any loss, claim, action, damage or expense suffered or sustained by STARBAL DOT NET CC pursuant to or arising out of the website content provided by the Client to STARBAL DOT NET CC in terms of this agreement, howsoever arising.
9.4 The Client acknowledges that STARBAL DOT NET CC has no knowledge of, nor in any way contributes to, nor approves the advertising and that certain kinds of content and conduct may be offensive, unlawful, in breach of codes of conduct binding on STARBAL DOT NET CC and/or the host(s), 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 content and conduct may cause harm to the name, goodwill and reputation of STARBAL DOT NET CC and/or the host(s). The Client therefore agrees that STARBAL DOT NET CC may, without derogating from any other rights that it may have, terminate this agreement with immediate effect and without notice to the Client, should JUST TIPPING, in its sole discretion, be of the opinion that advertising content or any part thereof is offensive, unlawful or harmful.
9.5 Whilst every effort will be made to ensure service of the full advertising content of the web site(s), neither party shall be held responsible for undelivered or un-served content due to the fluctuating nature of internet traffic which is beyond either party's control.
9.6 The Client agrees that nothing that STARBAL DOT NET CC 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 be construed as an assumption of responsibility or liability by STARBAL DOT NET CC for the web site and/or the Client's advertisements.
10. NO AGENCY
10.1 The parties confirm that neither of them are acting as agent for the other and both parties bind themselves to this agreement in their own capacities.
10.2 STARBAL DOT NET CC does not act as an agent for any host(s) in the provision of the service to the client and denies any power to represent such host(s).
11. CONFIDENTIALITY
11.1 Without the prior written consent of the other party, the parties will keep confidential and will not disclose to any person the material details of this agreement, including without limitation, the technologies employed by either party in the fulfilment of its obligations in terms of this agreement, the consideration and rates of remuneration and any other information which either party has access to in the course of its relationship with the other party relating to the business, operations and affairs of the other party which it knows or should reasonably know is confidential information (together "the confidential information").
11.2 The parties agree to keep all confidential information confidential and to disclose it only to their officers, directors, employees, consultants and professional advisers who :-
11.2.1 have a need to know (only to the extent that each such party has a need to know);
11.2.2 are aware that the confidential information should be kept confidential;
11.2.3 are aware of the disclosing party's undertaking in relation to such information in terms of this agreement; and
11.2.4 have been directed by the disclosing party to keep the confidential information confidential and have undertaken to keep the confidential information confidential in accordance with the provisions of this agreement.
11.3 The obligations of the parties in respect of the maintenance and non-disclosure of confidential information in terms of this agreement do not extend to information that:-
11.3.1 is disclosed to the receiving party in terms of this agreement but at the time of such disclosure such information is known to be in the lawful possession or control of such party and not subject to an obligation of confidentiality; or
11.3.2 is or becomes public knowledge, otherwise than pursuant to a breach of this agreement by any party; or
11.3.3 is required by the provisions of any law, statute or regulation, or during any court proceedings, or by the rules or regulations of any recognised stock exchange to be disclosed and the party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure of, and to limit, as far as reasonably possible, the extent of such disclosure and have consulted with the other parties prior to making such disclosure.
12. BREACH AND ARBITRATION
12.1 If any of the parties ("the aggrieved party") alleges that the other party ("the defaulting party") is in breach of any of the provisions of this agreement and the defaulting party has failed to remedy such breach :-
12.1.1 within ten (10) business day of receipt of a written notice given by the aggrieved party requiring the defaulting party to remedy the breach; or
12.1.2 should the defaulting party within the period referred to in 12.1.1 dispute the occurrence of a breach, or of a breach on its part, then within ten (10) business days of a receipt by the defaulting party of the finding, whether oral or in writing, of an arbitrator in terms of 12.2 or a Court in terms of 12.4 (provided that if the breach is not capable of being remedied within such time through no fault of the defaulting party then within such period as may be reasonable in the circumstances) the aggrieved party, without prejudice to any other right which it may have, shall be entitled to specific performance or cancellation of this agreement with or without a claim for damages occasioned by such breach.
12.2 Any dispute whatsoever arising in respect of a matter regulated by this agreement, or the implementation of this agreement, shall within seven (7) business days of a written request by either of the parties to such dispute, be referred to arbitration in terms of the rules and procedures of the Arbitration Foundation of South Africa.
12.3 The arbitration in 12.2 shall be held in Pretoria shall be final and binding on the parties and the unsuccessful party shall pay the costs of the successful party on the scale as between attorney and own client.
12.4 Nothing in this 12 shall prevent a party from approaching a court of competent jurisdiction in South Africa for urgent or interim relief.
13. FORCE MAJEURE
13.1 If the performance of this agreement by any party or the fulfilment of any obligation under this agreement is prevented, restricted or interfered with by reason of any legal, civil or technological circumstances, including without limitation, new law, court order, proclamation, regulation, requirements having a legal effect of any government or any judicial authority, strikes, war, embargo, blockades, any breakdowns in the internet, whether globally or in part, temporary or permanent, or any other cause whatsoever which are beyond the reasonable control of the party affected, then the party so affected shall, upon written notice to the other party, be excused from such performance to the extent of such prevention, restriction or interference, provided the party so affected shall use its best efforts to avoid or remove such causes of non-performance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed.
13.2 Upon such circumstances arising, the parties shall meet forthwith to discuss what (if any) modification shall be required to the terms of this agreement in order to arrive at an equitable solution.
14. DOMICILILUM
14.1 Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing, but it shall be competent to give any notice by telefax; and the parties choose the addresses and telefax numbers stipulated on page 1 of this agreement as their domicilium citandi et executandi.
14.2 Any written notice in connection with this agreement may be addressed :-
14.2.1 in the case of STARBAL DOT NET CC to the postal address or fax number detailed on the front page of this agreement, and shall be marked for the attention of the Sales Manager;
14.2.2 in the case of the Client to the postal address or fax number detailed on the front page of this agreement, and shall be marked for the attention of the representative whose name is detailed on such front page.
14.3 Any party may by notice to any other party change the physical address chosen as its domicilium citandi et executandi vis-à-vis that party to another physical address where postal delivery occurs in the Republic of South Africa or its postal address or its telefax number, provided that the change shall become effective vis-à-vis that addressee on the seventh (7th) business day from the receipt of the notice by the addressee.
14.4 Any notice to a party :-
14.4.1 sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at an address chosen as its domicilium citandi et executandi to which post is delivered, shall be deemed to have been received on the seventh (7th) business day after posting (unless the contrary is proved);
14.4.2 delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et execuandi shall be deemed to have been received on the day of delivery; or
14.4.3 sent by telefax to is chosen telefax number stipulated , shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
14.5 Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent or delivered at its chosen domicilium citandi et executandi.
15. WHOLE AGREEMENT
15.1 This agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreement or understandings or representations by or between the parties regarding the subject matter hereof, and the parties will not be entitled to rely, in any dispute, regarding this agreement, on any terms, conditions or representations not expressly contained in this agreement.
15.2 No amendment or consensual cancellation of this agreement or any provision or term hereof or of any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement and no settlement of any disputes arising out of this agreement and no extension of time, waiver or relaxation or suspension of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties. Any such extension, waiver or relaxation or suspension which is so given or made shall be strictly construed as relating strictly to the matter in respect whereof it was made or given.
15.3 No extension of time or waiver or relaxation of any of the provisions or terms of this agreement or any agreement, bill of exchange or other document issued or executed pursuant to or in terms of this agreement, shall operate as an estoppel against any party in respect of its rights under this agreement, nor shall it operate so as to preclude such party thereafter from exercising its rights strictly in accordance with the agreement.
16. GENERAL
16.1 The validity and interpretation of this agreement shall be governed by the laws of the Republic of South Africa and in particular, the Act.
16.2 The Client will not be entitled to assign, cede or transfer any rights or obligations acquired in terms of this agreement in whole or in part to any other person or persons without the prior written consent of STARBAL DOT NET CC.
16.3 In the event that any of the terms of this agreement are found to be invalid, unlawful or unenforceable such terms will be severable from the remaining terms, which will continue to be valid and enforceable. If any invalid term is capable of amendment to render it valid, the parties agree to re-negotiate an amendment to remove the invalidity.
16.4 Nothing contained in this agreement shall be construed as creating or constituting any form of partnership between the parties. Each of the parties shall bear its own costs incurred as a result of the negotiation, drafting and finalisation of this agreement, which shall include but not be limited to all legal fees. This agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which shall be taken together and deemed to be one instrument.