Subscription Version 2
All references to “Green Media“, “we“, “us” and “our” in this subscription agreement, are deemed to refer to Green Media, a division of Grapevine Creative Media (Pty) Ltd (registration number 2019/537174/07), a limited liability company incorporated in the Republic of South Africa and having its registered address at 73 Bowling Avenue, Morningside Manor, Johannesburg.
All references to “you“, “your” and “Brand Owner” (as further defined below) are deemed to refer to the person or entity that registers via the Website to subscribe to the platform of Green Media, in order to receive the exchange services provided by Green Media as set out below. Any person who, on behalf of any other person or entity, has completed the online registration process and submitted “I Agree” at the end thereof, warrants to Green Media that he/she/it has the necessary authority to do so.
1 Definitions
1.1 In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meaning assigned to them and cognate expressions bear corresponding meanings –
1.1.1 “Agreement” means this Subscription Agreement and any Exchange Acceptances executed pursuant to this Subscription Agreement from time to time;
1.1.2 “Brand Owner” / “you” / “your” means the provider of products and/or services, that has completed (or whose representative has completed on its behalf), the online registration form, as well as the online registration process of Green Media to subscribe to the Platform via the Website, by selecting and submitting “I Agree” in respect of this Subscription Agreement, at the end of such registration process, thereby entering into this Subscription Agreement, and whose full details appear in the online registration form;
1.1.3 “Business Day” means any day other than a Saturday, Sunday or public holiday in South Africa;
1.1.4 “Calendar Month” means the first day to the last day of one of the twelve months of the year, for example 1 January to 31 January;
1.1.5 “Campaign” means each advertising campaign of the Brand Owner, in respect of which the Media Owner places, displays or flights advertisement Content of the Brand Owner in the Media Space, in terms of and as set out in the relevant Trade Exchange Agreement;
1.1.6 “Confidential Information” means any information, reports, documents, technical as well as economic and financial documents, not lawfully in the public domain, relating to the business of a Party, including without limitation, data (including client data), pricing arrangements, software, trade secrets, personal information, intellectual property, all technical knowledge, expertise and business processes and any other information whatsoever of a confidential nature concerning the business affairs of a Party, but specifically excluding information or data which –
1.1.6.1 is lawfully in the public domain at the time of disclosure thereof;
1.1.6.2 subsequently becomes lawfully part of the public domain by publication or otherwise;
1.1.6.3 becomes available from a source other than one of the Parties which is lawfully entitled without any restriction on disclosure to disclose such Confidential Information; and
1.1.6.4 is disclosed pursuant to a requirement or request by operation of law, regulation or court order;
1.1.7 “Consumer Protection Act” means the Consumer Protection Act 68 of 2008;
1.1.8 “Content” means various forms of rich media content, including but not limited to, text, images, animations, graphics, video clips, music, ring tones, sound clips and games provided by the Brand Owner for display/flighting in the Media Space as part of a Campaign and as described in the relevant Trade Exchange Agreement;
1.1.9 “ECT Act” means the Electronic Communications and Transactions Act 25 of 2002, as may be amended from time to time;
1.1.10 “Exchange Acceptance” means a written agreement entered into by and between the Brand Owner and Green Media, pursuant to and on the terms of this Subscription Agreement, as contemplated in clause 5.7 below;
1.1.11 “Exchange Services” means the trade exchange facilitation services provided by Green Media to the Brand Owner, as set out in clause 6 below;
1.1.12 “Intellectual Property Rights” means all current and future rights in and to any know-how, invention, design, trade mark (whether or not registered), copyright, patents, trade secrets, process, process methodology, Confidential Information, databases (including rights of extraction), internet domain names, website addresses, applications for registration of any of the foregoing and the right to apply for registration, and any forms of protection of a similar nature or having equivalent effect which may subsist or be capable of protection, anywhere in the world and any goodwill related to or arising from such rights;
1.1.13 “Media Owner” means a third party that–
1.1.13.1 is the owner of a media channel and Media Space, that may be used for advertising purposes; or
1.1.13.2 has acquired Media Space from the owner of a media channel and the right to place advertisements without the further consent of the owner of the medial channel;
that has subscribed to the trade exchange platform provided by Green Media to media owners and is prepared to exchange its Media Space for products and/or services;
1.1.14 “Media Space” means advertising space in an electronic or other media platform or channel, which a Media Owner advises Green Media is available for potential Trade Exchange Transactions and/or is provided by the Media Owner in terms of an executed Trade Exchange Agreement (as applicable), which may include advertising space on television, radio, print, billboards and online media, and includes the display of advertisements in such electronic or other media platform;
1.1.15 “Parties” means the Brand Owner and Green Media and “Party” shall mean either of them, as the context dictates;
1.1.16 “Platform” means the platform created by Green Media to facilitate the exchange of products and/or services for Media Space, and which includes:
1.1.16.1 the Website, including the following webpage https://www.greenmedia.co.za/i-have-product-services-to-trade through which you have subscribed; and
1.1.16.2 the Exchange Services provided by Green Media to facilitate the execution of Exchange Acceptances and Trade Exchange Agreements;
1.1.17 “Prime Rate” means the publicly quoted prime rate of interest (expressed as a percentage per annum) from time to time charged by ABSA Bank Limited, as certified by any manager of such bank, whose appointment and authority it shall not be necessary to provide, calculated daily and compounded monthly in arrears;
1.1.18 “Products” means the products owned or supplied by a Brand Owner, which the Brand Owner advises Green Media are available for potential Trade Exchange Transactions and/or are provided by the Brand Owner in terms of a duly executed Trade Exchange Agreement (as applicable);
1.1.19 “Pro Forma Trade Exchange Agreement” means the pro forma trade exchange agreement attached as Annexure A to each Exchange Acceptance, setting out the details of a potential Trade Exchange Transaction;
1.1.20 “Services” means the services provided by a Brand Owner, which the Brand Owner has advised Green Media are available for potential Trade Exchange Transactions and/or are provided in terms of a duly executed Trade Exchange Agreement (as applicable);
1.1.21 “Subscription Agreement” means this Subscription Agreement between Green Media and the Brand Owner in respect of the Brand Owner’s subscription to the Platform (including the Exchange Services), concluded by means of the Brand Owner selecting and submitting “I Agree” at the end of the registration page/process on the Website;
1.1.22 “Territory” means the Republic of South Africa;
1.1.23 “Trade Exchange Agreement” means a written agreement entered into between Green Media (acting on behalf of the Brand Owner) and a Media Owner, pursuant to a duly Executed Exchange Acceptance and materially in conformance with the Pro Forma Trade Exchange Agreement attached to such Exchange Acceptance, in respect of a specific exchange of Products and/or Services for Media Space, including all schedules thereto;
1.1.24 “Trade Exchange Transaction” means a transaction, the conclusion of which is facilitated by Green Media (through the use of the Platform, including the rendering of the Exchange Services), whereby Products and/or Services are exchanged for Media Space provided by the Media Owner, as accepted by the Brand Owner by its signature of an Exchange Acceptance, and recorded in a Trade Exchange Agreement;
1.1.25 “VAT” means value-added tax, chargeable under the Value Added Tax Act, 1991; and
1.1.26 “Website” means www.greenmedia.co.za, and all web pages found thereon, the use of which is, in addition to the provisions of this Agreement that may apply, subject to the terms and conditions of use of the Website.
1.2 Any words following the terms “including“, “include“, “in particular” or “for example“, or any similar phrase shall be construed as illustrative and shall not limit the generality of the related words.
1.3 The rule of interpretation that a written agreement shall be interpreted against the party responsible for the drafting or preparation of this Subscription Agreement shall not apply.
1.4 Any reference in this Agreement to “laws” or “law” means any applicable statute, regulation, policy, by-laws, notice or subordinate legislation, the common law, any binding court order, judgement or decree, any applicable industry code, policy or standard enforceable by law, any applicable direction, policy or order given by a regulator.
1.5 Important clauses of this Subscription Agreement, which may limit our risk or liability, may constitute an assumption of risk or liability by you, or which impose an obligation on you to indemnify us, or which constitute an acknowledgement of fact by you are reflected in bold. You must pay special attention to these clauses.
2 INTRODUCTION
2.1 Green Media provides a trade exchange facilitation platform and related services that assists suppliers of products and/or services to exchange such products and/or services for media space, in which to place advertisements.
2.2 The exchange services provided by Green Media include the procurement of Media Space on behalf of suppliers of products and/or services, as well as the provision of certain trade exchange facilitation and management services.
2.3 Green Media agrees to provide the Brand Owner with access to the Platform and the Exchange Services on the terms and conditions set out below.
3 access to the Platform and Exchange Services
3.1 We will only provide you with access to the Platform, including the Exchange Services, if you have completed the online registration form and have selected and submitted “I Agree” at the end of the online registration process on the Website. We will send the necessary log-in details to the Platform to the email address you specify in the online registration form, or we may provide you with such log-in details via the Website. If you do not agree to the provisions of this Subscription Agreement, you will not have access to the Exchange Services and you must terminate the process by clicking on the “Back” button, in which case the registration process will be terminated.
3.2 When you first subscribe to the Platform, including the Exchange Services you will be able to provide us with information regarding the Products and/or Services that you wish to provide and what your requirements are in respect of Media Space that you wish to procure in exchange.
3.3 By entering into this Subscription Agreement you consent to us using your contact details provided during registration to contact you to further ascertain your requirements and/or business needs in relation to potential Trade Exchange Transactions that you wish to enter into.
3.4 You will be required to provide us with written confirmation that the person who entered into this Subscription Agreement on your behalf was duly authorised to do so, within 1 (one) Business day of receipt of our request in this regard.
3.5 Without in any way detracting from the provisions of clauses 6.6 and 13, Green Media shall be entitled to conduct a preliminary assessment of the Brand Owner, including whether the Platform has the potential to fulfil the Brand Owner’s business requirements or needs, within a period of 7(seven) Business Days of the Brand Owner entering into this Subscription Agreement with Green Media. Where Green Media reasonably determines that the Brand Owner, or its business needs is/are not suited to the Platform, it shall be entitled to exercise its termination right in terms of clause 18.6 below. Green Media may, acting reasonably, decline or cease to provide the Exchange Services in respect of any Trade Exchange Transaction (or potential Trade Exchange Transaction), at any time upon written notice to you, including where Green Media may suffer reputational harm, or where any amounts due to Green Media by the Brand Owner in terms of this Agreement have not been paid by the due date and until such payment default is remedied.
4 Duration
4.1 This Subscription Agreement shall commence upon the acceptance hereof by the Brand Owner as set out in clause 3.1 above and shall endure until terminated in accordance with clause 18 below, provided that this Subscription Agreement shall not terminate until the termination or fulfilment of the last Exchange Acceptance entered into pursuant to this Subscription Agreement.
4.2 Each Exchange Acceptance shall commence on the date set out therein and shall endure until terminated in accordance with its terms, or expiry thereof once the Exchange Services of Green Media in respect of the Relevant Trade Exchange Agreement are fulfilled.
5 structure and trade exchange process
5.1 Green Media has contracted with various Media Owners for the provision of access to the platform of Green Media, in order to assist such Media Owners to make offers for products and/or services made available by suppliers of such products and/or services, for potential Trade Exchange Transactions.
5.2 By entering into this Subscription Agreement, you agree to be bound by all the terms and conditions set out herein, regardless of whether the Exchange Services culminate in the finalisation or execution of any Exchange Acceptances and/or Trade Exchange Agreements entered into pursuant to this Subscription Agreement, except that provisions specially indicating that they are only applicable in the event that an Exchange Acceptance or Trade Exchange Agreement is entered into, shall only apply after such Exchange Acceptance or Trade Exchange Agreement is entered into.
5.3 By entering into this Subscription Agreement, you appoint Green Media to:
5.3.1 present your Products and/or Services to Media Owners for purposes of potential Trade Exchange Transactions;
5.3.2 liaise with Media Owners, as envisaged in this Agreement; and
5.3.3 procure Media Space and enter into Trade Exchange Agreements with Media Owners on your behalf, subject to the Parties entering into an Exchange Acceptance in respect of each such Trade Exchange Transaction (as set out in the Pro Forma Trade Exchange Agreement attached thereto).
5.4 In order to receive the Exchange Services and offers in respect of Media Space to be exchanged for your Products and/or Services, you will be required to provide Green Media with:
5.4.1 a list of available Products and/or Services, volumes of such Products and/or Services and the retail value of such Products and/or Services and you will be required to update such information from time to time; and
5.4.2 your business needs or requirements in relation to advertising, and the Media Space you require in exchange for such Products and/or Services.
5.5 We will from time to time, for the duration of this Subscription Agreement, present your Products and/or Services to various Media Owners, which we deem suitable for a potential Trade Exchange Transaction, based on your requirements and/or business needs communicated to us.
5.6 We will then, liaise on your behalf with the Media Owners in respect of whose Media Space you express an interest and manage the negotiation process, in order to facilitate the finalisation of a Trade Exchange Transaction and the conclusion of an Exchange Acceptance and Trade Exchange Agreement in respect of such Trade Exchange Transaction.
5.7 Once negotiations in respect of a potential Trade Exchange Transaction are finalised, we will provide you with an Exchange Acceptance to which the Pro Forma Trade Exchange Agreement (setting out the details of the exchange), will be attached, for your approval and you will be required to enter into such Exchange Acceptance with Green Media setting out and confirming, inter alia:
5.7.1 our appointment as your agent to enter into a trade exchange agreement with the relevant Media Owner on your behalf, in accordance with the Exchange Acceptance and that such appointment in respect of such Exchange Acceptance shall be irrevocable, save in respect of a breach by Green Media of its obligations in terms thereof;
5.7.2 that you agree to be bound to the terms and conditions set out in each duly executed Trade Exchange Agreement, as well as any schedule thereto approved by you as contemplated in clause 5.10; and
5.7.3 that you shall do all things, perform all acts, make timeous decisions, take all steps and procure the doing of all things, within your power and control as may be necessary for and incidental to fulfilling your obligations in terms of and putting into effect the terms and conditions of the Trade Exchange Agreement/s entered into by Green Media on your behalf pursuant to the Exchange Acceptance/s and shall cooperate with Green media and provide all information, Content and other assistance necessary for Green Media to effectively liaise with the Media Owner on your behalf, including, upon written request by Green Media at any time after a Trade Exchange Agreement is entered into between Green Media (acting on your behalf) and the Media Owner, to perform, take all steps and/or liaise with the Media Owner directly, , where Green Media (acting reasonably), deems this necessary for the continued, expedient or effective performance of the Trade Exchange Agreement, or for the resolution of disputes after Green Media has managed such dispute on your behalf as set out in this Agreement.
5.8 Each Exchange Acceptance executed and entered into by you pursuant to this Subscription Agreement, shall be construed in accordance with the terms and conditions of this Subscription Agreement, as if such terms and conditions were expressly set out therein and shall become a separate agreement between you and us, on the terms of this Subscription Agreement, excluding the provisions of clauses 6.1, 17, 18.5, 18.6 and 18.7. The terms of any one Exchange Acceptance shall not apply to any other Exchange Acceptance and each Exchange Acceptance shall be capable of termination separately in accordance with its terms without affecting the remaining Exchange Acceptances entered into. In the event that an Exchange Acceptance contains terms different to the terms of this Subscription Agreement, then the terms of the Exchange Acceptance (to the extent different from the terms of this Subscription Agreement) shall prevail, but only with respect to the issue at hand.
5.9 After the Media Owner has duly executed/signed a Trade Exchange Agreement, in terms of an Exchange Acceptance, Green Media’s signature of such Trade Exchange Agreement, shall represent the conclusion of a binding agreement between Green Media (acting as your agent and on your behalf) and the Media Owner.
5.10 A Trade Exchange Agreement may require the finalisation and approval of a written schedule setting out the final details of the flighting/display slots and dates in accordance with which the Content will be flighted/displayed by the Media Owner. Once the Media Owner has sent such schedule to Green Media in writing, we will send you the schedule for your approval and after you have approved the contents of such a schedule via email or otherwise in writing, Green Media’s acceptance of such schedule on your behalf shall represent the conclusion of a binding schedule to the Trade Exchange Agreement, which shall form part of the Trade Exchange Agreement.
5.11 The Brand Owner shall provide to Green Media, the names and designation of the persons who are authorised to execute Exchange Acceptances and/or accept the contents of schedules to the Trade Exchange Agreements (as contemplated in cause 5.10 above), upon written request by Green Media and shall immediately advise Green Media if these details change, however Green Media shall be entitled to accept that the person who has entered into this Subscription Agreement on behalf of the Brand Owner is so authorised, as well as any other representative of the Brand Owner who contacts Green Media in relation to a prospective Trade Exchange Transaction, Exchange Acceptance or Trade Exchange Agreement.
5.12 You acknowledge and agree that:
5.12.1 Green Media acts in the capacity of a service provider and intermediary between you and the Media Owner in providing you with access to the Platform (including the Exchange Services) and shall only act on your behalf, as your agent, in respect of the execution/signature of a Trade Exchange Agreement arising from this Agreement, and otherwise as set out in the relevant Exchange Acceptance; and
5.12.2 Green Media shall continue to provide ancillary services to the Media Owner in terms of its agreement with the Media Owner until the Trade Exchange Agreement is executed.
6 the exchange Services
6.1 In addition to presenting your Products and/or Services to such Media Owners as Green Media deems suitable, from time to time, and liaising and negotiating with the such Media Owners, for purposes of potential Trade Exchange Transactions, Green Media will, in respect of prospective Trade Exchange Transactions and prior to the execution/signature of a Trade Exchange Agreement:
6.1.1 inform you when Media Owners express a serious interest in your Products and/or Services;
6.1.2 provide you with information received from the Media Owner in respect of the Media Space that you express an interest in, to assist you in deciding whether you wish to enter into a Trade Exchange Agreement in respect of such Media Space;
6.1.3 provide information that you have supplied to us in relation to your Products and/or Services and your standard terms and conditions that may apply to the exchange of your Products and/or Services, to the Media Owners whose advertising space you have expressed an interest in;
6.1.4 manage the further exchange of information in relation to the negotiation process between you and the Media Owner leading up to the execution/signature of a Trade Exchange Agreement;
6.1.5 endeavour to keep you informed of the progress of negotiations and identify any inability to obtained Media Space required by you;
6.2 Once negotiations in respect of a potential Trade Exchange Transaction are finalised, you will be required to enter into an Exchange Acceptance with Green Media and once such Exchange Acceptance has been executed, Green Media will enter into a Trade Exchange Agreement on your behalf, in accordance with such Exchange Acceptance, and in consideration for payment of the fees set out in clause 7.
6.3 After a Trade Exchange Agreement has been entered into between Green Media (acting on your behalf) and the Media Owner, Green Media will in respect of such Trade Exchange Agreement:
6.3.1 liaise with the Media Owner on your behalf, in respect of the Campaign and finalisation of the Content, which for purposes of clarity will exclude proof reading, advice on and design of the Content;
6.3.2 manage the Media Owner’s placement and flighting/display of Content/advertisements in the Media Space, on your behalf;
6.3.3 liaise with the Media Owner in respect of delivery of the Products and/or Services as specified in the Trade Exchange Agreement;
6.3.4 act as the general liaison between you and the Media Owner for the duration of the Trade Exchange Agreement, provided that any disputes between you (or Green Media acting on your behalf) and the Media Owner in relation to the Trade Exchange Agreement that are not resolved after we have managed such dispute for a period of 14 (fourteen) days, will be referred to you for resolution or further action, with the Media Owner directly.
6.4 All disputes in relation to or arising from the Trade Exchange Agreement, including in relation to defective Products and/or Services, or Media Space supplied in terms of a Trade Exchange Agreement, will be managed and dealt with by Green Media with reference to the standard terms and conditions of the Brand Owner and the Media Owner in respect of the Products and/or Services and Media Space (as applicable) and subject to clause 6.3.4 above.
6.5 We do not warrant that the Media Space suggested by us will meet your requirements or be suitable for your intended use. You are responsible for ensuring that the Media Space is correctly described in each Pro Forma Trade Exchange Agreement and meets your requirements.
6.6 You acknowledge and agree that:
6.6.1 this Agreement is not intended to and does not operate as an exclusive agreement between you and us and we can provide access to the Platform and the Exchange Services to third parties, and enter into agreements with third parties similar to this Agreement;
6.6.2 Media Space contracted for in terms of a Trade Exchange Agreement will not necessarily constitute media space for any specific time period/slot, shoulder, primetime or other specification, unless specifically set out in such Trade Exchange Agreement;
6.6.3 Green Media shall present your Products and/or Services in relation to potential Trade Exchange Transactions, to such Media Owners as it deems fit in its sole discretion;
6.6.4 Green Media is not under any obligation to secure a certain number or target of Trade Exchange Transactions on your behalf and may perform its duties in any manner that it deems appropriate, subject to the terms of this Agreement;
6.6.5 you are responsible to ensure that the terms of each Pro Forma Trade Exchange Agreement attached to an Exchange Acceptance are acceptable to you, prior to your execution of the Exchange Acceptance and that the Media Space acquired in exchange for your Products and/or Services, is a reasonable and fair exchange;
6.6.6 Green Media expressly reserves the right to decline to enter into a Trade Exchange Agreement on your behalf.
7 financial arrangements
7.1 The Brand Owner will pay to Green Media a non-refundable service fee equal to 20% (twenty percent) of the total retail value of all the Products and/or Services to be exchanged in terms of a Trade Exchange Agreement (regardless of the price thereof reflected in the applicable Trade Exchange Agreement) (“Service Fee”), plus VAT thereon, which retail value will be calculated in accordance with the retail price list provided by the Brand Owner to Green Media prior to the Parties entering into the applicable Exchange Acceptance, unless otherwise specifically agreed in terms of the applicable Exchange Acceptance.
7.2 Green Media shall invoice the Brand Owner in respect of the Service Fee not later than the 25th day of the Calendar Month during which the first advertisement or any Content forming part of a Campaign is scheduled to be displayed or flighted in terms of the Trade Exchange Agreement, unless otherwise agreed between the Parties in an Exchange Acceptance. The Brand Owner shall make payment of each Service Fee invoiced, within 30 (thirty) days of date of invoice.
7.3 In the event that the Brand Owner revokes the authority granted to Green Media in terms of a duly executed Exchange Acceptance or the Exchange Acceptance expires or is terminated, for any reason other than a proven breach by Green Media of its applicable obligations in terms of the Exchange Acceptance, or the Trade Exchange Agreement is terminated (any of which events shall be termed “a Termination”), prior to Green Media issuing its invoice in respect of the Service Fee, then Green Media shall be entitled, but not obliged, to charge the Brand Owner a cancellation fee (“Cancellation Fee”) which shall be calculated as follows:
7.3.1 where a Termination occurs after the Parties have entered into an Exchange Acceptance but prior to the Trade Exchange Agreement being entered into by the Media Owner and Green Media (on behalf of the Brand Owner), the Cancellation Fee shall be equal to 60% (sixty percent) of the Service Fee that would have been invoiced in terms of clause 7.2, had the Termination not occurred;
7.3.2 where a Termination occurs after the Trade Exchange Agreement has been entered into by Green Media and the Media Owner, but more than 30 (thirty) days prior to the flighting of the first advertisement or Content forming part of the Campaign, the Cancellation Fee shall be equal to 80% (eighty percent) of the Service Fee that would have been invoiced in terms of clause 7.2, had the Termination not occurred;
7.3.3 where a Termination occurs more than 14 (fourteen) days, but less than 30 (thirty) days prior to the flighting of the first advertisement or Content forming part of the Campaign, the Cancellation Fee shall be equal to 90% (ninety percent) of the Service Fee that would have been invoiced in terms of clause 7.2, had the Termination not occurred; and
7.3.4 where a Termination occurs less than 14 (fourteen) days prior to the flighting of the first advertisement or Content forming part of the Campaign, the Cancellation Fee shall be equal to 100% (one hundred percent) of the Service Fee that would have been invoiced in terms of clause 7.2, had the Termination not occurred.
7.4 The Brand Owner shall make payment of any Cancellation Fee within 7 (seven) days of date of invoice.
7.5 The Brand Owner shall make payment of all amounts due in terms of this Agreement in South African Rands and by way of electronic funds transfer of freely available and transferable funds, free of any deductions or set-off, to the bank account of Green Media specified in the invoice.
7.6 Any amounts due by the Brand Owner to Green Media that are not paid on the due dates shall attract interest at the Prime Rate plus 2% (two percent). In the event of a dispute arising between the Parties as to the Prime Rate, a certificate issued by any branch manager of the said bank confirming the Prime Rate, shall be prima facie evidence of such rate.
7.7 Green Media shall be entitled to suspend access to and use of the Platform, including the Exchange Services, in event that the Brand Owner fails to comply with its payment obligations in respect of this Agreement and until payment in full has occurred. The Brand Owner will remain liable for any amounts due and payable in terms hereof.
7.8 The Brand Owner acknowledges and agrees that nothing in this Agreement shall preclude Green Media from receiving compensation from Media Owners for the use of Green Media’s trade exchange platform and certain ancillary services, made available to Media Owners, in respect of each Trade Exchange Agreement entered into, and that such compensation may be as agreed between the Media Owner and Green Media, including in the form of media space.
7.9 All amounts set out in this clause 7 are specified exclusive of VAT and where applicable, the Brand Owner agrees to pay, in addition to such amounts, any VAT due thereon, at the then prevailing rate.
8 restraint
8.1 In the event that the Brand Owner obtains access to the details of the Media Owner in respect of a particular Trade Exchange Transaction or potential Trade Exchange Transaction by virtue of any negotiations leading up to the execution of, or information contained in, the Exchange Acceptance or Trade Exchange Agreement (or in any other way as a result of the Brand Owner’s use of the Platform, including its use of the Exchange Services), neither the Brand Owner, nor any person, business or entity in which the Brand Owner has a direct or indirect interest, financial or otherwise, shall be entitled to enter into any trade exchange or barter agreement with such Media Owner (including for the purpose of circumventing Green Media), which is the same or similar to the Trade Exchange Transaction or potential Trade Exchange Transaction being negotiated by Green Media in terms of this Subscription Agreement, for a period of 24 (twenty four) months after:
8.1.1 the Brand Owner has become aware of the identity of, or been introduced to the Media Owner by Green Media, or
8.1.2 the expiry or termination of the last Trade Exchange Agreement entered into with such Media Owner pursuant to this Agreement,
whichever occurs last.
8.2 The Brand Owner agrees that it shall only liaise with Media Owners for purposes of any prospective Trade Exchange Transaction through Green Media and agrees that it will not contact such Media Owners directly, unless this is specifically required in terms of this Agreement or a Trade Exchange Agreement.
8.3 For a period of 24 (twenty four) months after entering into this Subscription Agreement, or the expiry or termination of the last Trade Exchange Agreement entered into in terms of this Agreement, whichever occurs last, , the Brand Owner shall not:
8.3.1 engage in any business or undertaking or hold any interest (directly or indirectly) financial or otherwise in such business or undertaking which competes with the services provided by Green Media contemplated in this Agreement; and
8.3.2 shall not promote, market, introduce or sell, services similar to the services provided by Green Media as contemplated in this Agreement, or have a direct or indirect interest, receive remuneration in respect of, or be party to a profit sharing arrangement in respect of the promotion, marketing, sale or introduction of any services that may compete with services of Green Media as set out in this Agreement.
8.4 The Parties acknowledge that they have given careful consideration to the restraints undertaken in this clause 8 and that such restraints are fair, reasonable and justified and go no further than is reasonably necessary to protect the proprietary rights and interest of Green Media regarding the Exchange Services. Furthermore, the Parties acknowledge that such restraints will not cause any hardship which each of them respectively is not willing to bear in return for the benefits (directly or indirectly) arising as a result of this Agreement.
8.5 The provisions of this clause 8 shall survive the expiry or termination of this Agreement, until each restraint period has expired in accordance with the terms hereof.
9 Obligations of the Brand Owner
9.1 The Products and/or Services shall adhere to and be provided in accordance with the provisions of the Trade Exchange Agreement at all times.
9.2 The Brand Owner shall not:
9.2.1 display, copy, print, post, republish or redistribute any content or material that it receives in respect of or as a result of the rendering of the Exchange Services, including any content or material accessed or received via the Platform for the benefit of any other website, application or purpose;
9.2.2 use the Platform or the Exchange Services in any way that is unlawful, illegal, fraudulent or harmful to Green Media, Media Owner or any other person, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
9.2.3 use the Exchange Services to provide any services to third parties.
9.3 The Brand Owner shall provide to Green Media all necessary co-operation in relation to this Agreement and all necessary access to such information, including marketing material, technical specifications and pricing in respect of its Products and/or Services, as may be required by Green Media for the purposes of performing its obligations in terms of this Agreement, including but not limited to the provision of the Exchange Services.
9.4 In addition to its other obligations in terms of this Agreement, the Brand Owner shall:
9.4.1 provide Green Media with proof of delivery indicating the Products and/or Services that have been provided to the Media Owner and whether there are any deliveries outstanding;
9.4.2 provide Green Media with not less than 2 (two) days prior written notice of any material changes to its Products and/or Services that would have an impact on any potential Trade Exchange Transactions;
9.4.3 respond promptly and efficiently to any enquires from Media Owners about the Products and/or Services, communicated by Green Media throughout the duration of this Agreement and any Trade Exchange Agreement entered into by us on your behalf;
9.4.4 keep separate records and accounts for each Media Owner in respect of the Products and/or Services provided to Media Owners pursuant to this Agreement and any Trade Exchange Agreement and shall permit Green Media to inspect such records and accounts;
9.4.5 comply with all applicable laws and regulations with respect to its activities, Products and/or Services offered for exchange in terms of this Agreement;
9.4.6 carry out all other Brand Owner responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Brand Owner’s provision of assistance as agreed in terms hereof, Green Media may adjust any agreed timetable or delivery scheduled as reasonably necessary;
9.4.7 obtain and maintain all necessary authorisations, consents and permissions necessary for Green Media to perform its obligations in terms of this Agreement; and
9.4.8 provide all necessary assistance and information to Green Media should there be any complaint in relation to the Products and/or Services, in order for Green Media to facilitate the resolution of such complaint, and shall further adhere to the provisions in relation to return and exchange of defective Products set out in each Trade Exchange Agreement.
10 obligations of Green Media
10.1 In addition to the obligations of Green Media set out elsewhere in this Agreement, Green Media undertakes to:
10.1.1 provide the Exchange Services in a workmanlike manner and with the necessary care and skill; and
10.1.2 promptly notify the Brand Owner upon becoming aware of any circumstances that may reasonably be expected to jeopardise the performance of the Exchange Services or any part thereof.
11 Warranties and Undertakings
11.1 Each of the Parties hereby warrants to and in favour of the other that:
11.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement;
11.1.2 this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;
11.1.3 the execution of this Agreement and the performance of its obligations hereunder does not and shall not:
11.1.3.1 contravene any law or regulation to which that Party is subject; or
11.1.3.2 contravene any provision of that Party’s constitutional documents.
11.2 The Brand Owner warrants and undertakes that:
11.2.1 all information provided to Green Media, will to the best of its knowledge be accurate and complete;
11.2.2 it is the lawful owner (or holds the necessary rights or authorisations granted by the owner) in respect of the Products in order to make the Products available for a potential Trade Exchange Transaction in terms of this Agreement and that it will be such lawful owner at the time that the Trade Exchange Agreement is entered into and that any such Products will be free of any liens or other encumbrances at the time of exchange;
11.2.3 it has and will have the necessary rights, licences, expertise, skills and qualifications to provide the Services that it offers to Green Media for a Trade Exchange in terms of this Agreement and that such Services will be rendered with the necessary care and skill and in accordance with good industry practice;
11.2.4 it shall by bound by and adhere to the terms and conditions of each Trade Exchange Agreement (including any schedule thereto approved by it, as contemplated in clause 5.10) entered into pursuant to this Subscription Agreement and that the Products and/or Services provided by the Brand Owner will conform to the description and any specifications in respect thereof set out in the relevant Trade Exchange Agreement;
11.2.5 it shall adhere to the terms and conditions of each Trade Exchange Agreement and the requirements of the Media Owner set out or referred to therein, in respect of the Content that it provides to Green Media and which Green Media in turn will provide to the Media Owner for flighting/display in terms of the Trade Exchange Agreement;
11.2.6 it shall do all things, perform all acts and take all steps and procure the doing of all things, within its power and control as may be necessary for and incidental to putting into effect the terms and conditions of the Trade Exchange Agreement/s entered into by Green Media (acting on behalf of the Brand Owner) pursuant hereto, including without limitation, upon written request by Green Media at any time after the execution of the Trade Exchange Agreement, to perform, take all steps and/or liaise with the Media Owner directly, as if it had been a signatory to the Trade Exchange Agreement instead of Green Media, where Green Media, acting reasonably, deems this necessary for the continued, expedient or effective performance of the Trade Exchange Agreement, or for the resolution of disputes after Green Media has managed such disputes on behalf of the Brand Owner as set out in clauses 6.3.4 and 6.4;
11.2.7 any Products provided in terms of a Trade Exchange Agreement shall indicate an expiry date (where appropriate) and shall only expire only after the expiry of a period of not less than 6 (six) months from delivery of the Products in terms of the Trade Exchange Agreement;
11.2.8 to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms hereof;
11.2.9 the performance by the Green Media of its obligations in terms of this Agreement will not result in the breach of any laws applicable to the Products and/or Services;
11.2.10 neither the Content provided for flighting/display, nor the Products and/or Services offered in terms of a potential Trade Exchange Transaction, and/or provided in terms of the Trade Exchange Agreement/s will infringe applicable laws, or the Intellectual Property Rights of Green Media, the Media Owner or any third party;
11.2.11 the natural person who enters into this Agreement on behalf of the Brand Owner, is validly and duly authorised to do so; and
11.2.12 it is not relying on any statement or representation by Green Media, except those expressly set forth in this Agreement.
11.3 Each of the warranties and undertakings set out in clause 11.1 and 11.2 above shall be read separately from and without prejudice to and without derogation from the others.
12 indemnities
12.1 The Brand Owner hereby indemnifies and holds Green Media harmless against any and all claims, costs, losses, expenses and/or damages of whatsoever nature (including in relation to reputational harm), that arise out of or in connection with:
12.1.1 an actual or alleged breach of the warranties provided in terms of clause 11 above, as well as any warranty implied by law;
12.1.2 any actual or alleged breach of the provisions of the Trade Exchange Agreement by the Brand Owner or any other act or omission of the Brand Owner pursuant or in relation to the Trade Exchange Agreement;
12.1.3 any act or omission of Green Media pursuant or in relation to the Trade Exchange Agreement, done in accordance with the authority granted to Green Media and/or the directions of the Brand Owner to Green Media in relation to the Trade Exchange Agreement; and/or
12.1.4 the revocation by the Brand Owner of the authority granted to Green Media to act on behalf of the Brand Owner, or the termination of the Exchange Acceptance for any reason other than a breach by Green Media thereof, including as may arise after Green Media has entered into a Trade Exchange Agreement on behalf of the Brand Owner.
12.2 The Brand Owner further indemnifies and defends, Green Media against any claims, costs, losses, expenses and/or damages of whatsoever nature, in the event that Green Media Suspends the Exchange Services as set out in clause 21.12, or that arise out of or in connection with any breach of the provisions of clause 8 above and/or clauses 9.2, 14 and 15 below.
12.3 Green Media will notify the Brand Owner in writing of any proceedings instituted by a third party or the Media Owner against Green Media in respect of any alleged infringement in respect of which Green Media is indemnified in terms of this clause and the Brand Owner shall, at its expense, defend any action instituted against Green Media. Green Media will assist the Brand Owner by providing the Brand Owner with such reasonable information as the Brand Owner may require in order to defend any of the aforesaid proceedings.
12.4 The provisions of this clause 12 shall survive the expiry or termination of this Agreement.
13 Limitation of Liabilty and disclaimer
13.1 The Brand Owner acknowledges that Green Media is not in any way responsible or liable for the Products and/or Services, Content, or the Media Space provided in terms of a Trade Exchange Agreement. Green Media shall not be responsible for any breaches by the Media Owner of any Trade Exchange Agreement, or breach by Green Media of such Trade Exchange Agreement due to an act or omission of the Brand Owner, or defects in or delays in delivery of the Products and/or Services, Content or Media Space exchanged in terms of a Trade Exchange Agreement.
13.2 In the event that the Exchange Services do not conform to the obligations or undertakings of Green Media set out in this Agreement, Green Media will use all reasonable commercial endeavours to correct or substitute any such non-conformance. Such correction or substitution constitutes the Brand Owner’s sole and exclusive remedy for any breach of any obligation or undertaking set out herein. Notwithstanding the aforegoing, the Exchange Services are provided “as is” without warranty of any kind and use of the Exchange Services are at the Brand Owners own risk. Green Media does not warrant that the Platform or the Exchange Services will meet the Brand Owner’s requirements or be free from errors.
13.3 To the fullest extent permitted by law, in no event will Green Media be liable to the Brand Owner or any other person for:
13.3.1 any loss of profits, revenue, loss of goodwill, loss of data or loss of business opportunities whether direct or indirect; or
13.3.2 any other indirect, special, punitive, exemplary or consequential losses of any kind.
incurred or suffered by the Brand Owner or any other person arising from the provision of access to the Platform, including the provision of the Exchange Services, or arising out of any Exchange Acceptance, or Trade Exchange Agreement, and/or the publication of the Content, the provision of the Products and/or Services and/or Media Space provided, in terms thereof.
13.4 Subject to the provisions of clause 13.1, 13.3 and 13.5 the maximum liability of Green Media to the Brand Owner or any other person, whether in contract or delict (including negligence) for all breaches of this Agreement and all other events, acts, claims, omissions and causes of action of whatever nature, relating to or arising directly or indirectly from this Agreement, and/or any Exchange Acceptance, and/or any Trade Exchange Agreement entered into pursuant to this Agreement, shall be limited in aggregate, to the fee payable by the Brand Owner to Green Media in respect of the Exchange Acceptance and/or Trade Exchange Agreement, in relation to which such events, acts, claims, omissions or causes of action arose.
13.5 Nothing in this Agreement shall limit or exclude the liability of Green Media for any matter to the extent to which such liability cannot be lawfully excluded or limited.
13.6 The provisions of this clause 13 shall survive the expiry or termination of this Agreement.
14 Intellectual Property rights
14.1 The Brand Owner acknowledges that Green Media and/or its licensors owns all rights, title and interest (including all Intellectual Property rights) in the Platform, including the Exchange Services and this Agreement does not grant the Brand Owner any rights, title or interest in the Exchange Services, the remainder of the Platform or any content or media accessed by the Brand Owner through the provision of the Platform, including the Exchange Services.
14.2 All Intellectual Property Rights in and to all data provided by the Brand Owner to Green Media shall at all times vest in and shall remain vested in the Brand Owner and Green Media shall only use such data for purposes of providing the Exchange Services and only in accordance with this Agreement.
14.3 During the term of this Agreement the Brand Owner grants to Green Media a licence to use the designs, logos, brochures and marketing materials that the Brand Owner provides to Green Media, for the purposes of Green Media fulfilling its obligations in terms of this Agreement. This includes the right of Green Media to make copies of such materials for the purposes of providing the Exchange Services.
14.4 Clauses 14.1 and 14.2 shall survive the expiry or termination of this Agreement.
15 confidentiality
15.1 The Parties agree to treat all Confidential Information of the other Party, in whatever form, as private and confidential and to safeguard it in the manner, and with the endeavour, of a reasonable person protecting his or her own Confidential Information, provided that this clause 15 shall not apply to Green Media, in respect of the information of the Brand Owner contemplated in clause 16.2 which is provided to the Media Owner. In no event shall the Parties use less than reasonable efforts to protect the confidentiality of the Confidential Information of the other Party.
15.2 The Parties agree that they will not use, exploit, disclose, copy, reproduce, publish, reverse engineer and/or decompile or otherwise transfer, directly or indirectly any Confidential Information of the other Party and furthermore that they will not use such Confidential Information for any purpose other than to fulfil their obligations and exercise their rights in terms of this Agreement and then on a “need to know” basis only. The Parties further agree to take all such steps as may be reasonably necessary to prevent Confidential Information of the other Party from falling into the hands of unauthorised third parties.
15.3 Each Party undertakes that it shall under no circumstances disclose the content of this Agreement to any other person, other than as required by law, or as expressly contemplated in this Agreement, without the prior written consent of the other Party. In particular the Brand Owner will not use or disclose any of the financial arrangements contained in clause 7 without Green Media’s prior written consent.
15.4 The Brand Owner agrees that it shall bound by the provisions of this clause 15 in respect of all Confidential Information of the Media Owner, provided to it by Green Media in terms of this Agreement.
15.5 This clause 15 shall survive the expiry or termination of this Agreement.
16 privacy and Data Protection
16.1 We recognize the importance of protecting your privacy in respect of personal information and your other data collected by us when you use the Platform and/or the Exchange Service(s). By continuing to use the Platform, including the Exchange Services you agree to the terms and conditions set out in this clause and you consent to us collecting and using your personal information and other data for the purposes set out herein.
16.2 Should you decide to make use of our Platform and the Exchange Services, the types of personal information and other data that we may collect from you, includes information necessary for our legitimate business interests and necessary to provide you with the access to the Platform, including the use of the Exchange Services leading up to the potential conclusion of an Exchange Acceptance and Trade Exchange Agreement (and for the duration of a Trade Exchange Agreement once entered into). This may include (amongst other things) all information provided to us on the registration page completed by you prior to your acceptance of this Subscription Agreement, as well as all information provided to us in respect of your Products and/or Services and/or Media Space that you require, in order for us to procure such Media Space and perform our obligations in terms of this Agreement. You hereby specifically consent to our disclosure of the following information to Media Owners that we liaise with for purposes of providing the Exchange Services and/or in respect of a potential Trade Exchange Transaction:
16.2.1 your details provided to use when you registered to subscribe to the Platform;
16.2.2 details shared by you with Green Media regarding your business (including business needs and requirements);
16.2.3 details of your Products and Services; and
16.2.4 any other information required to progress negotiations with a Media Owner, to enable Green Media to provide the Exchange Services, enable Media Owners to provide the Media Space, and generally enable the implementation of this Agreement and any Trade Exchange Agreement and Exchange Acceptance.
16.3 You hereby acknowledge and agree that you must not share any information with Green Media that you do not wish Green Media to share with Media Owners, unless you specifically inform Green Media in writing that such information is not be shared with Media Owners.
16.4 You may edit any of your personal information referred to in clauses 16.2 by logging into your profile on the Website at any time.
16.5 The supply of your personal information and other data is voluntary. However, you acknowledge that we cannot provide the Exchange Services to you if you do not wish to supply such personal information or other data. You agree to provide accurate, truthful and current information, and not to impersonate or misrepresent any person or entity, or falsely state or otherwise misrepresent your affiliation with anyone or anything. Failure to adhere to this requirement will entitle Green Media, inter alia, to terminate your use of the Platform and/or the Exchange Services.
16.6 The purpose for which we will use your personal information and other data provided by you, is to provide you with the Exchange Services, including the facilitation of the Exchange Transaction and the completion thereof in terms of a Trade Exchange Agreement and –
16.6.1 to inform you of new features and special offers (provided you have consented to receiving such marketing material), for helping us in any future dealings with you and generally to improve your experience on our Platform and/or the Exchange Services; and
16.6.2 to contact you to advise you that we have changed or are about to change certain terms and conditions or the content of the Exchange Services.
16.7 Should you no longer wish to receive marketing communications from us, you may send us an email at info@greenmedia.co.za.
16.8 Green Media will not use your personal information for any purpose (other than as stated above) without your express consent. We will not use or disclose your personal information to third parties without your consent, unless the use or disclosure is –
16.8.1 required in order to comply with applicable law, order of court or legal process served on Green Media; and/or
16.8.2 disclosure is necessary to protect and defend the rights or property of Green Media.
16.9 We will comply with the provisions of clause 16 in relation to your personal information provided and take appropriate technical and organisational measures to ensure that your personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access.
16.10 We will:
16.10.1 take appropriate technical and organisational measures to ensure that your personal information is kept secure and is protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access;
16.10.2 promptly notify you if we become aware of any unauthorised use, disclosure or processing of your personal information; and
16.10.3 provide you with reasonable evidence of our compliance with our obligations under this policy on reasonable notice and request and upon your request, promptly return or destroy any and all of your personal information in our possession or control.
16.11 We will not retain your personal information longer than the period for which it was originally needed, unless we are required by law to do so, or you consent to us retaining such information for a longer period. You may request access to the personal information which we collect from you, including to rectify the information, or object to its processing by sending an email to us at info@greenmedia.co.za or any other address indicated from time to time on the Platform).
16.12 We may, from time to time, transfer, store or host your personal information on servers outside of South Africa. In particular, you consent to the cross-border transfer of your personal information and/or other data in the event that any Media Owner is based outside South Africa.
16.13 If this clause or any provision in this clause is regulated by or subject to the Protection of Personal Information Act (“POPI“) or other data protection legislation, it is not intended that any provision of this clause contravenes any provision of POPI or other data protection legislation. Therefore, all provisions of this clause must be treated as being qualified, to the extent necessary, to ensure that the provisions of POPI or other data protection legislation are complied with.
16.14 You warrant that all information (including personal information) that you provide to us will be correct. You acknowledge that we may verify your identity and your personal information through an automated email verification process and/or with third party service providers.
17 AMENDMENTS TO THE Agreement
We may change the terms and conditions set out herein at any time by sending you an email with details of the change or notifying you of a change the next time you log onto the Website. The new or amended terms will take effect upon expiry of a period of 30 (thirty) days after we have notified you as contemplated in this clause and you may be required to read and accept them to continue your use of the Platform (including the Exchange Services). In the event that you do not agree with any changes to this Subscription Agreement you will be required to notify us in writing and will be entitled to exercise your right to terminate this Subscription Agreement, as set out in clause 18.7. Should you continue to use the Platform and/or the Exchange Services after such new or amended terms take effect, you will be deemed to have accepted such new or amended terms.
18 breach and Termination
18.1 In the event of any of the Parties (“Defaulting Party“) committing a breach of any of the terms of the terms and conditions of this Agreement and fails to remedy such breach within a period of 10 (ten) Business Days after receipt of a written notice from another Party (“Aggrieved Party“) calling upon the Defaulting Party so to remedy, then the Aggrieved Party shall be entitled, at its sole discretion and without prejudice to any of its other rights in law, either to claim specific performance of the terms of this Agreement or to cancel this Agreement forthwith and without further notice, and in either case to claim and recover damages from the Defaulting Party.
18.2 The Parties agree that any costs awarded will be recoverable on an attorney-and‑own client scale unless the court specifically determines that such scale shall not apply, in which event the costs will be recoverable in accordance with the High Court tariff, determined on an attorney-and-client scale.
18.3 The Aggrieved Party’s remedies are without prejudice to any other remedies to which the Aggrieved Party may be entitled in law.
18.4 On termination of this Agreement for any reason, the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced and the Brand Owner shall immediately pay all fees due in respect of the provision of access to the Platform and the Exchange Services.
18.5 In the event that Green Media has not sent any written communication to the Brand Owner in terms of this Subscription Agreement (other than the email containing the Platform login details), within a period of 7 (seven) Business Days from the date on which the Brand Owner entered into this Subscription Agreement with Green Media, then this Subscription Agreement shall terminate and be of no further force or effect (subject to clause 21.9) and Green Media shall not incur any liability in respect of such termination.
18.6 Green Media may terminate this Subscription Agreement without incurring any liability in respect of such termination by providing written notice to the Brand Owner within 7 (seven) Business Days of the Brand Owner entering into this Subscription Agreement with Green Media, provided that, where an Exchange Acceptance has already been entered into between the Parties, such termination shall only take effect upon the termination or expiry of such Exchange Acceptance and/or the Trade Exchange Agreement entered into pursuant thereto.
18.7 Subject to clause 18.6 above, either Party may terminate this Subscription Agreement at any time without incurring any liability in respect of such termination, upon providing 30 (thirty) days’ prior written notice to the other Party, provided that any such termination shall only take effect upon the termination or expiry of the last Exchange Acceptance and/or Trade Exchange Agreement still in force and executed pursuant to this Subscription Agreement, and provided further that upon expiry of the 30 (thirty) day notice period, Green Media shall no longer be obliged to provide any Exchange Services, other than Exchange Services pertaining to any existing Exchange Acceptance/s.
19 Notices
19.1 The Parties select as their respective domicilia citandi et executandi the following physical addresses, and for the purposes of giving or sending any notice provided for or required under this Agreement, the said physical addresses –
| Name | Physical Address | |
| Green Media | 73 Bowling Avenue, Morningside Manor, Johannesburg | info@greenmedia.co.za |
| Name | Physical Address | |
| Brand Owner | The address provided to Green Media upon registration. | As provided to Green Media on registration |
provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address by written notice to the other Party to that effect. Such change of address will be effective 5 (five) Business Days after receipt of the notice of the change.
19.2 All notices to be given in terms of this Agreement will be given in writing and will –
19.2.1 be delivered by hand courier service or email; and
19.2.2 if delivered by hand during business hours, be presumed to have been received on the date of delivery. Any notice delivered after business hours or on a day which is not a Business Day will be presumed to have been received on the following Business Day.
19.3 Notwithstanding the above, any notice given in writing, and actually received by the Party to whom the notice is addressed, will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with clause 20.1.
20 governing law
This Agreement shall be governed and interpreted in accordance with the laws of the Republic of South Africa. Your continued use of the Platform and/or the Exchange Services will constitute your consent and submission to the jurisdiction of the South African courts regarding all proceedings, transactions, applications or the like instituted by either party against the other, arising from this Agreement.
21 general
21.1 If this Agreement or any Exchange Services made available via the Website is regulated by or subject to the Consumer Protection Act, the ECT Act or other laws it is not intended that any provision of this Agreement contravenes any provision of the Consumer Protection Act, the ECT Act or other laws. Therefore, all provisions of this Agreement must be treated as being qualified, to the extent necessary, to ensure that the provisions of the Consumer Protection Act, the ECT Act or other laws are complied with.
21.2 To the extent that any provision of this Agreement is considered to be a penalty stipulation in terms of the Conventional Penalties Act, 15 of 1962: (i) the terms of this Agreement shall not be construed or interpreted in such a way as entitling Green Media to recover both damages and the penalty; (ii) Green Media shall be entitled to recover damages in lieu of the relevant penalty; and (iii) the Brand Owner acknowledges and agrees, having taken account of the prejudice that will be suffered by Green Media, that the penalty stipulation is equitable in the circumstances.
21.3 Green Media will not be bound by any terms and conditions, whether printed on or referred to on any instructions, correspondence or other documents submitted by the Brand Owner or the Media Owner.
21.4 Green Media may use consultants or other service providers or representatives appointed by it to perform its duties in terms of this Agreement, however it shall remain responsible for any portion of the Exchange Services provided by such consultants, service providers or representatives.
21.5 All references to “executed”, “signed” or “entered into”, in respect of any Exchange Acceptance or Trade Exchange Agreement (excluding in relation to the schedules to the Trade Exchange Agreement, as contemplated in clause 5.10) shall, notwithstanding anything to the contrary in this Agreement, be read and construed as excluding any form of electronic signature.
21.6 You may not cede, assign or otherwise transfer your rights and obligations in terms of this Agreement to any third party, without the prior written consent of Green Media.
21.7 Any failure on the part of you or Green Media to enforce any right in terms hereof shall not constitute a waiver of that right.
21.8 All provisions and various clauses of this Agreement are, notwithstanding the manner in which they are grouped together or linked, severable from each other. If any term or condition contained herein is declared invalid, or is or becomes unenforceable for whatever reason, the remaining terms and conditions will remain in full force and effect.
21.9 Notwithstanding anything to the contrary in this Agreement, the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after such expiration or termination, or which of necessity must continue to have effect after such expiration or termination and notwithstanding that the clauses themselves do not expressly provide for this.
21.10 No indulgence, extension of time, relaxation or latitude which any party (“the grantor“) may show grant or allow to the other (“the grantee“) shall constitute a waiver by the grantor of any of the grantor’s rights and the grantor shall not thereby be prejudiced or stopped from exercising any of its rights against the grantee which may have arisen in the past or which might arise in the future.
21.11 This Subscription Agreement and any Exchange Acceptances executed by you in terms of and pursuant to this Agreement, contains the whole agreement between you and Green Media relating to the subject matter hereof and no other warranty or undertaking is valid, unless contained in this Agreement.
21.12 Should either Party fail to fulfil its obligations in terms of this Agreement as a result of inability to secure labour, materials or supplies, despite having taken reasonable steps to procure same; war, strike, lockout or other labour dispute, fire, terrorism, internet connectivity, government requirements or changes to laws or regulations; or any other cause beyond the reasonable control of the Party concerned (“vis majeure Event”), then notwithstanding anything to the contrary contained in this Agreement, neither Party shall be liable to the other for any delay or failure to perform in terms of this Agreement.
22 additional information
22.1 For the purposes of the ECT Act, Green Media’s information is as follows (which must be read in conjunction with the rest of the provisions of this Agreement) –
22.1.1 Description of main business: provision of barter/exchange platform and/or related services for the exchange/barter of products, services and media space
22.1.2 Office bearers: Angus Murray-Smith
22.1.3 Official website: www.greenmedia.co.za
22.1.4 Email address: info@greenmedia.co.za