WHEREAS, the Owner owns and operates a website identified as www.elephantandbarrel.co.za (the “Website”), and
WHEREAS, the Client desires to have text- and image-based links (the “Advertisements”) placed on the Website to promote its products and services: –
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
1. Advertisement Display and Services
The Owner undertakes to represent the Client on the portal www.elephantandbarrel.co.za in the manner outlined in this advertising agreement. This undertaking will remain effective for the duration of the advertising period.
2. Advertising Period
This advertising agreement will commence for a period of twelve (12) months from the date stipulated above. Subsequent to the initial 12 month period the agreement will be automatically renewed unless written notice is provided one month prior to the termination date. Contracts paid in full will be automatically renewed unless the client provides notice of termination one month prior to the renewal date.
The Client shall pay the Owner for publication of the Advertisement on the Website, as set out above.
In the event, that the Client defaults in making any payments due within 7 days, the Website Owner reserves the right to suspend the Advertisement posted on the Website.
Prices will be subject to an annual inflation-related increase.
The Client shall deliver the Advertisements to the Owner digitally via email at least five (5) business days before the scheduled start date. The Client shall be solely responsible for providing the Advertisement in the format required for display. The Client acknowledges that the Owner will not be responsible or liable for the quality of any portion of the Advertisement that does not meet the established digital criteria. If at any time the Client desires to modify its content, they shall provide a written request to the Owner specifying in detail the modification desired. The Owner shall, within a reasonable time, effectuate the modifications to the content.
The Client shall be fully responsible and liable for the content contained in the Advertisement. The Owner is not responsible for, and in no way warrants, guarantees, or ratifies, the representations made or implied in the contents.
6. Prohibited Content
Advertisements shall not contain:
(i) any content promoting the use of illegal substances; nudity, sex, or pornography;
(ii) any content which is explicit or inappropriate language;
(iii) content promoting illegal activity, racism, hate, “spam”, mail fraud, pyramid schemes, or investment opportunities or advice which is not permitted under law;
(iv) content that is libellous, defamatory, contrary to public policy’ otherwise unlawful or any other content deemed inappropriate by the Owner in its sole discretion.
Use of any such inappropriate content by the Client will result in the suspension, termination and removal of the Advertisement or any other action deemed necessary by the Owner in its sole discretion.
The Owner reserves the right to review and approve the suitability of the Advertisement submitted. The Website Owner may reject or cancel any Advertisement for any reason which it believes in good-faith to be detrimental. If the Owner so rejects the Client’s Advertisement or terminates its display, then this Agreement shall be terminated and the Website Owner will return any prepaid advertising fees to the Client.
The Client grants the Owner a limited, non-transferable, non-exclusive license to copy, use, store, set up, publicly display, publicly perform and transmit the Client’s Advertisement (including any trade names, trademarks and service marks shown) during the term of this Agreement and solely relating to this Agreement. Upon termination of this Agreement, the Owner will remove the Client’s Advertisement, destroy all copies of it and cease further display of the Advertisement. Nothing in this Agreement grants the Client any right to use the name, trademark, or service mark of the Owner in any advertisement, sales promotion, or press release without the Owner’s prior written approval.
9. Property Rights
The Client acknowledges that the contents of the Owners Website, including, without limitation, all trade names, trademarks, service marks, content, text, images, software, functionality, page and other design and layout, media and other materials therein, is proprietary to or licensed by the Owner, protected under copyright, trademark, and other intellectual property laws and such contents may not be reproduced without the consent of the Owner.
The Client retains all right, title and interest including copyright and other proprietary or intellectual property rights in the content of the Advertisement, Client’s trade names, trademarks and service marks therein.
By agreement, content provided by the client to the Owner can be used for the promotion of the service of the Client and promotion of the franschhoekvenues.co.za portal in all forms of media including but not limited to, social media, digital advertisements, print advertisements and event promotions.
The Client warrants to the Owner that:
(i) The Client has the right and authority to enter into and perform its obligations under this Agreement;
(ii) The Advertisement shall conform to the description and specifications set forth by the Owner;
(iii) The Advertisement shall not constitute or be the subject of a notice or claim of any false designation of origin, false advertising or unfair competition under the law of any country;
(iv) The Advertisement does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation, or infringes any proprietary, intellectual property, contract or tort right of any person or misappropriates a person’s trade secret, name, likeness or identity;
(v) The advertisement contains no viruses, worms, malicious code, trap doors, back doors, timers, clocks, counters, FTP servers, or other limiting routines, instructions or designs, and no web beacons, web bugs, spyware or other similar hidden or transparent code, script, or routine designed to gather, track or transmit information about the Owner or the users of the Website;
The services and site are provided “as is” without warranty of any kind, express or implied and any use of the services or Website are at the Client’s sole risk. The Owner does not warrant that the services or Website will be uninterrupted or error-free, nor does the Owner make any warranty as to the performance or any results that may be obtained by use of the services or Website. The Owner makes no other warranties, express or implied, including, without limitation, any implied warranties of merchantability and fitness for a particular purpose, concerning the subject matter of this agreement.
12. Independent Contractor
The Owner shall provide the Services as an independent contractor and the Owner shall not act as an employee, agent or broker of the Client. As an independent contractor, the Owner will be solely responsible for paying any and all taxes levied by applicable laws on its compensation. The Owner understands that the Client will not withhold any amounts for payment of any taxes from the Owner’s compensation.
13. Termination of Contract Within the Initial 12 Month Period
Termination of the contract within the initial twelve (12) month period is subject to one (1) months’ notice in writing.
Where the annual fee has been paid up-front no refund will be made for such early withdrawal of Advertisement.
The Owner shall not assign any of their rights under this Agreement, or delegate the performance of any of the obligations or duties hereunder, without the prior written consent of the Client and any attempt by the Owner to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be void and of no effect.
Any notices, bills, invoices, or reports required by this Agreement shall be deemed received on the day sent via email as stipulated on enclosed “Company Details” form.
If any provisions of this Agreement shall be held to be illegal, invalid or unenforceable under present or future laws, such provisions shall be fully severable, this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and, the remaining provisions of this Agreement shall remain in full force and effect.
17. Limitation of Liability
In no event shall either party be liable to the other party for any indirect, incidental, consequential, special or exemplary damages, including without limitation, business interruption, loss of or unauthorised access to information, damages for loss of profits, incurred by the other party arising out of the services provided under this agreement, even if such party has been advised of the possibility of such damages. In no event will neither party’s liability on any claim, loss or liability arising out of or connected with this agreement shall exceed the amounts paid to the Owner by the Client.
Each party shall at its own expense indemnify and hold harmless, and at the other party’s request, defend such party its affiliates, subsidiaries, successors and assigns officers, directors, employees, sublicenses, and agents from and against any and all claims, losses, liabilities, damages, demand, settlements, loss, expenses and costs (including attorney’s fees and court costs) which arise directly or indirectly out of or relate to (a) any breach of this Agreement, or (b) the gross negligence or wilful misconduct of a party’s employees or agents;
19. Entire Agreement; Amendment:
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this Agreement shall be effective unless in writing and signed by each of the parties.
The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
The headings used in this Agreement are for convenience only and shall not be used to limit or construe the contents of any of the sections of this Agreement.