TERMS & CONDITIONS

OF EXCHANGE

Version 20210112

The terms and conditions of exchange set out below (“Exchange Terms”) apply to each trade exchange agreement that refers to and incorporates these Exchange Terms, that is entered into by and between Green Media (acting for and on behalf of the brand owner specified in such trade exchange agreement) and the media owner specified in such trade exchange agreement.

1. INTERPRETATION

1.1 In the Exchange Terms, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings –

1.1.1 “Agreement” means the Trade Exchange Agreement and these Exchange Terms (as read together); 

1.1.2 “Brand Owner” means the provider of the Products and/or Services, on whose behalf Green Media enters into the Trade Exchange Agreement, as defined in the Trade Exchange Agreement;

1.1.3 “Brand Owner Participants” means Green Media and the Brand Owner, and “Brand Owner Participant” means either of them as indicated by the context; 

1.1.4 “Brand Owner Standard Terms” means any standard terms of the Brand Owner that apply to the supply of the Products and/or Services in terms of the Trade Exchange Agreement and which, if applicable, shall be set out in Annexure A to the Trade Exchange Agreement;

1.1.5 “Business Day” means any business day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time; 

1.1.6 “Campaign” means the advertising campaign of the Brand Owner, in respect of which the Media Owner displays/flights the advertisement Content of the Brand Owner in the Media Space, as described in clause 4.1 of the Trade Exchange Agreement; 

1.1.7 “Confidential Information” means any information or data, including any Personal Information, shared by the Disclosing Party which by its nature or content is identifiable as confidential and/or proprietary to the Disclosing Party and/or any third party, or which is provided or disclosed in confidence and which the Disclosing Party or any person acting on its behalf may disclose or provide to the Receiving Party or which may come to the knowledge of the Receiving Party by whatsoever means, including all information relating to the Disclosing Party ‘s current and existing strategic objectives, its business activities, business relationships, technical, scientific, commercial, financial and market information and trade secrets, data concerning its architectural information, demonstrations, processes and machinery, all agreements to which it or its clients is/are a party, Personal Information disclosed and information relating to its clients and facilities, but specifically excluding information or data which – 

1.1.7.1 is lawfully in the public domain at the time of disclosure thereof;  

1.1.7.2 subsequently becomes lawfully part of the public domain by publication or otherwise; 

1.1.7.3 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; or

1.1.7.4 is disclosed pursuant to a requirement or request by operation of law, regulation or court order;  

1.1.8 “Content” means the various forms of rich media content including but not limited to graphics, images, text, music, animations and video clips, and games provided by Green Media to the Media Owner for display/flighting in the Media Space, as described at clause 4.2 of the Trade Exchange Agreement;  

1.1.9 “Data” means all data, information and other materials belonging to Green Media and/or the Brand Owner on the one hand and the Media Owner on the other and to which the other of them has access during the term of the Trade Exchange Agreement;

1.1.10 “Disclosing Party” means either Party and/or any third party to the extent that it discloses any Confidential Information in terms of this Agreement;

1.1.11 “Flighting Schedule” means “a written schedule to the Trade Exchange Agreement, setting out additional details in respect of the display/flighting of the Content (including the schedule in terms of which the Media Owner will display/flight the Content in the Media Space), entered into between the Parties, if required in accordance with clause 1.7 of the Trade Exchange Agreement; 

1.1.12 “Force Majeure” means an event of fire, lightning, explosion, flood, hurricane, act of God, war, terrorism, civil disorder, epidemics, plagues, strikes; boycotts, and lock-outs of all kinds and go-slows (excluding boycotts, strikes, lock-outs and go-slows by or of the affected Party’s own Staff) which were outside of the control of the affected Party or any other event beyond the control of the Party affected by the event, provided in all cases that the affected Party has taken all steps and precautions which could reasonably be expected for it to have taken in order to prevent such act or event occurring and furthermore that the affected Party is not at fault;

1.1.13 “Green Media” means Green Media, a division of Grapevine Creative Media (Pty) Ltd, registration number 2019/537174/07, acting at all times in its capacity as agent for and on behalf of the Brand Owner;  

1.1.14 “Intellectual Property Rights” includes all current and future intellectual property rights of any kind whatsoever and however embodied which may subsist or be capable of protection wheresoever in the world, including (without limitation) patents, trademarks, present and future rights of copyright, rights in and to designs, rights in and to inventions, topography rights, rights in and to trade secrets, rights in and to trade names, business names, domain names and logos, the right to keep information confidential and private, rights in and to know-how, rights in and to databases (including rights of extraction), and all rights and forms of protection of a similar nature or having equivalent effect to any of them which may subsist or be capable of protection as at the Signature Date or thereafter wheresoever in the world, whether or not any of these is registered and including applications for any such rights or registration thereof and any goodwill related to or arising from such rights;

1.1.15 “Media Owner” means the provider of the Media Space, as defined in the Trade Exchange Agreement; 

1.1.16 “Media Owner Standard Terms” means any standard terms and conditions of the Media Owner that apply to the supply of the Media Space by the Media Owner, and which, if applicable, shall be set out in Annexure B to the Trade Exchange Agreement;

1.1.17 “Media Space” means the advertising space in the electronic or other media platform or channel, as described in clauses 1.4 and 1.5 of the Trade Exchange Agreement, as well as in any Flighting Schedule to the Trade Exchange Agreement, and which includes the display by the Media Owner of the advertising Content in respect of the Campaign of the Brand Owner in the Media Space;

1.1.18 “Parties” means the parties to the Agreement being the Media Owner and Green Media, and “Party” shall mean any either of them as the context may require;

1.1.19 “Personal Information” has the meaning given to it in the Protection of Personal Information Act, 4 of 2013;

1.1.20 “Products means the Brand Owner Products that will be supplied in exchange for the Media Space, as described in clause 1 of the Trade Exchange Agreement;

1.1.21 “Product Description” means the description of the Products, as set out in clause 1.2 of the Trade Exchange Agreement;

1.1.22 “Product Specifications” means the specifications of Products/Services, as set out in Annexure C to the Trade Exchange Agreement;

1.1.23 “Receiving Party” means the Party, other than the Disclosing Party, to the extent that it receives disclosure of any Confidential Information of the Disclosing Party in terms of the Agreement;

1.1.24 “Services” means the Brand Owner Services that will be supplied in exchange for the Media Space, as described in clause 1 of the Trade Exchange Agreement;

1.1.1 “Service Description” means the description of the Services, as set out in clause 1.2 of the Trade Exchange Agreement;

1.1.2 “Service Specifications” means the specifications of the Services, as set out in Annexure C to the Trade Exchange Agreement (if any);

1.1.3 “Staff” means any natural person who is either an employee, consultant or subcontractor of either Party and where the context requires, employees, consultants and subcontractors of a subcontractor; 

1.1.4 “Trade Exchange Agreement” means the written trade exchange agreement which incorporates these Exchange Terms by reference, entered into between Green Media and the Media Owner, in respect of the exchange of the Products and/or Services of the Brand Owner, for the Media Space provided by the Media Owner, including all Annexures thereto, as well as any Flighting  Schedule entered into between the Parties; and

1.1.5 “VAT” means value added tax levied in terms of the Value Added Tax Act 1998.

1.2 In the Agreement –

1.2.1 clause headings and the heading of these Exchange Terms and the Trade Exchange Agreement are for convenience only and are not to be used in its interpretation;

1.2.2 an expression which denotes –

1.2.2.1 any gender includes the other genders;

1.2.2.2 a natural person includes a juristic person and vice versa;

1.2.2.3 the singular includes the plural and vice versa; 

1.2.3 a Party includes a reference to that Party’s successors in title and assigns allowed at law; and

1.2.4 a reference to a consecutive series of two or more clauses is deemed to be inclusive of both the first and last mentioned clauses.

1.3 Any reference in the Agreement to –

1.3.1 “business hours” shall be construed as being the hours between 08h30 and 17h00 on any Business Day.  Any reference to time shall be based upon South African Standard Time;

1.3.2 “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “Business Day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time;

1.3.3 “laws” means all constitutions; statutes; regulations; by-laws; codes; ordinances; decrees; rules; judicial, arbitral, administrative, ministerial, departmental or regulatory judgements, orders, decisions, rulings, or awards; policies; voluntary restraints; guidelines; directives; compliance notices; abatement notices; agreements with, requirements of, or instructions by any Governmental Body; and the common law, and “law” shall have a similar meaning; and

1.3.4 “person” means any person, company, close corporation, trust, partnership or other entity whether or not having separate legal personality.

1.4 The words “include” and “including” mean “include without limitation” and “including without limitation”.  The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.

1.5 Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in clause 1 of these Exchange Terms, or elsewhere in the Agreement, shall be given effect to as if it were a substantive provision in the body of the Agreement.

1.6 Unless specifically otherwise provided, any number of days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a Business Day, the next succeeding Business Day.

1.7 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.

1.8 The rule of construction that the Agreement shall be interpreted against the Party responsible for the drafting of the Agreement, shall not apply.

1.9 Any conflict between the provisions of the various documents referred to herein shall be dealt with as follows:

1.9.1 in event of any conflict between the provisions of the Trade Exchange Agreement and the provisions of the Brand Owner Standard Terms, the Media Owner Standard Terms, or these Terms of Exchange, the provisions of the Trade Exchange Agreement shall prevail;

1.9.2 in the event of any conflict between the provisions of these Exchange Terms and the Media Owner Standard Terms or the Brand Owner Standard Terms, the provisions of these Exchange Terms shall apply, save in respect of delivery of the Products and/or Services, in which case the provisions of the Brand Owner Standard Terms shall prevail.

 

2 INTRODUCTION

Green Media (acting on behalf of the Brand Owner) and the Media Owner have agreed that the Media Owner will provide the Media Space to the Brand Owner in exchange for the supply of the Products and/or Services by the Brand Owner, as set out in the Agreement. 

 

3 APPOINTMENT OF GREEN MEDIA 

3.1 Green Media has been appointed by the Brand Owner to enter into the Agreement and procure the Media Space on behalf of the Brand Owner from the Media Owner, in exchange for the supply of the Products and/or Services by the Brand Owner to the Media Owner. Such appointment of Green Media by the Brand Owner includes the authority to:

3.1.1 bind the Brand Owner to the terms of the Agreement as if it had been the signatory thereto and not Green Media acting on its behalf;

3.1.2 bind the Brand Owner to a  Flighting Schedule/s to the Trade Exchange Agreement; and

3.1.3 liaise with the Media Owner on behalf of the Brand Owner in respect of all matters pertaining to the Agreement; and

3.1.4 receive and issue invoices on behalf of the Brand Owner in terms of the Agreement, unless otherwise specified in the Trade Exchange Agreement.

3.2 For purposes of clarity:

3.2.1 all the provisions of the Agreement shall apply to and be binding on the Brand Owner; 

3.2.2 where Green Media is referred to in the Agreement, it is only in its capacity as agent on behalf of the Brand Owner and in the context of its duties set out in clause 3.1 above, unless those duties are fulfilled by the Brand Owner as contemplated in clause 3.2.3 below; and

3.2.3 in the event that Green Media deems it necessary for the continued, expedient or effective performance of the Agreement in the circumstances, or in the event that the authority of Green Media is terminated for any reason, the Brand Owner shall perform, take all steps and/or liaise with the Media Owner directly and shall take over all the obligations of Green Media (acting as agent on its behalf) in terms of the Agreement.

 

4 RELATIONSHIP BETWEEN THE PARTIES 

4.1 The relationship between the Parties in terms of the Agreement shall be that of independent contractors. No partnership or joint venture is hereby created between the Parties. 

4.2 Save as specifically herein contemplated, this Agreement does not constitute one Party as the legal representative, employee or servant of the other Party, does not constitute the employees of one Party as being employees of the other and neither Party shall have authority to assume any obligation of any kind on behalf of the other Party, or to bind the other Party in any way. 

 

5 THE SUPPLY OF MEDIA SPACE

5.1 The Media Owner shall provide the Media Space to the Brand Owner in accordance with the provisions of the Agreement, including:

5.1.1 the description of the Media Space and any minimum requirements of the Brand Owner, set out in the Trade Exchange Agreement; and

5.1.2 any Flighting Schedule entered into between the Parties setting out additional display/flighting details;

 and with due regard to the Brand Owner’s agreed requirements for each Campaign.

5.2 Subject to clause 5.1 above, the Media Owner shall provide the Media Space to the Brand Owner and flight/display the Content in the Media Space, further in accordance with the Media Owner Standard Terms (if any).

5.3 Where required in terms of the Trade Exchange Agreement, the Media Owner shall provide a written schedule as contemplated in clause 1.8 of the Trade Exchange Agreement, for Green Media’s approval and acceptance. Such schedule shall comply with the minimum requirements of the Brand Owner set out in clause 1.6 of the Trade Exchange Agreement and shall be designated as “Final”. In event that such schedule is acceptable to Green Media the Parties shall sign such schedule which shall then constitute a Flighting Schedule to the Trade Exchange Agreement.

5.4 In the event that the schedule provided by the Media Owner in terms of clause 5.3 above does not comply with the minimum requirements of the Brand Owner, or is otherwise unacceptable to the Brand Owner, the Parties shall cooperate in good faith in an attempt to resolve any such issues, however unless the issues are resolved (and the schedule or amended schedule is subsequently approved and accepted by Green Media)within 14 (fourteen) days after the schedule is first provided by the Media Owner to Green Media for acceptance, Green Media (or the Brand Owner) shall be entitled to exercise its rights in terms of clause 18.2.  

 

6 SUPPLY AND DELIVERY OF PRODUCTS

6.1 The Products supplied in terms of the Agreement shall comply with the Product Description set out in the Trade Exchange Agreement and the Product Specifications (if any).

6.2 Subject to the provisions of clause 6.6, the Products will be supplied to the Media Owner:

6.2.1 in accordance with the quantities and on the dates set out in the Trade Exchange Agreement; and 

6.2.2 subject to the Brand Owner Standard Terms in relation to the Products as set out in Annexure A to the Trade Exchange Agreement (if any).

6.3 All risk and ownership in and to the Products supplied shall pass to the Media Owner as set out in clause 3 of the Trade Exchange Agreement. 

6.4 Green Media will provide the Media Owner with all information in relation to the Products that is reasonably requested by the Media Owner, in order to enable the Media Owner to utilise the Products.

6.5 Subject to the provisions of clause 6.6 below, the Products shall be delivered to the Media Owner at the Delivery Address during business hours, at the expense of the Brand Owner, unless otherwise set out in the Trade Exchange Agreement. 

6.6 The Media Owner acknowledges and agrees that there are aspects of the manufacturing process and supply chain that are not within the control of the Brand Owner or Green Media  and that time is not of the essence in the delivery of the Products to the Media Owner, however reasonable commercial endeavours shall be used to ensure that the Products are delivered or available for collection on the date/s specified in the Trade Exchange Agreement. In event of an expected delay in delivery of any shipment of Products, the Brand Owner shall be entitled to extend the delivery date/s by up to 5 (five) Business Days (or such longer period as may be agreed between the Parties). Green Media will notify the Media Owner in writing of any such delays, as well as the new delivery dates of the Products.

6.7 The Media Owner’s Staff member, appointed representative or logistics provider shall be required to sign the necessary proof of delivery supplied to it by the Brand Owner’s Staff member, representative or logistics provider, on delivery. The Media Owner shall notify Green Media in writing not less than 2 (two) Busines Days prior to delivery, the details of such Staff member, appointed representative or logistics provider who is authorised to accept delivery on behalf of the Media Owner. If no such notification is received by Green Media from the Media Owner within the period set out above, then delivery of the Products shall be made to any person present at the Delivery Address who the Brand Owner or its representative or logistics provider, acting reasonably, deems to be an appropriate representative of the Media Owner.

 

7 PRODUCT WARRANTIES AND RETURN OF DEFECTIVE PRODUCTS

7.1 Any Products supplied in terms of the Agreement shall carry the warranties (if any) set out in the Brand Owner Standard Terms.

7.2 All returns, repair and/or replacements of defective Products shall be dealt with in accordance with the return policy of the Brand Owner, as set out in Brand Owner Standard Terms (if any).

 

8 SUPPLY AND DELIVERY OF SERVICES

8.1 Any Services to be provided in terms of the Agreement, shall be provided by the Brand Owner in accordance with the Service Description in the Trade Exchange Agreement and the Service Specifications attached thereto (if any).

8.2 The Brand Owner will provide the Services at the Delivery Address set out in the Trade Exchange Agreement, with due care and skill, subject to and in accordance with Brand Owner Standard Terms. 

8.3 The Media Owner will provide the necessary access at the Delivery Address to the Staff of the Brand Owner, where necessary, in order to enable the Brand Owner to render the Services to the Media Owner.

8.4 Green Media will provide the Media Owner with all information in relation to the Services that may be reasonably requested by the Media Owner in order to utilise the Services.

 

9 CONTENT

9.1 Green Media shall provide the Media Owner with the Content, as supplied to it by the Brand Owner, by the date specified in clause 4.3 of the Trade Exchange Agreement. 

9.2 The Media Owner acknowledges and agrees that any Content which falls within the ambit of the general written description of the Content set out in the Trade Exchange Agreement, shall be deemed to be acceptable to the Media Owner, unless it clearly violates any requirements in relation to the Content, that may be set out in the Media Owner Standard Terms, in a material respect and when applying a reasonably narrow interpretation to the Media Owner Standard Terms. The Media Owner shall act reasonably at all times when applying its requirements with which the Content must comply, as set out above. 

9.3 In the event that the Media Owner, after having received the Content, is of the reasonable opinion that the Content does not comply with its requirements set out the Media Owner Standard Terms (if any), the Media Owner shall be required to notify Green Media in writing within 5 (five) days of receipt of the Content by the Media Owner and shall set out in detail why such Content is not compliant. The Parties shall cooperate in good faith in an attempt to resolve the issue, however in the event that the Parties are unable to resolve the issue in relation to the Content (including through the process or any portion thereof contained in clause 22), at least 5 (five) days prior to the first flighting/display of the Content as set out in the Trade Exchange Agreement or the Flighting Schedule/s thereto, Green Media (or the Brand Owner) shall be entitled to exercise its rights in terms of clause 18.2.

9.4 In the event that the Media Owner does not notify Green Media of any non-compliance in respect of the Content within the first period set out in clause 9.3 above, the Media Owner will be deemed to have accepted the Content for flighting/display in the Media Space in accordance with the provisions of the Agreement. 

 

10 FINANCIAL CONSIDERATIONS 

10.1 The Products and/or Services shall be provided by the Brand Owner in exchange and in consideration for the Media Space and the Media Space shall be provided by the Media Owner in exchange and in consideration for the Products and/or Services. 

10.2 Both Parties shall, for the purposes of accounting, VAT and taxation, issue each other with a valid tax invoice for the supply of the Products and/or Services and Media Space respectively. The Media Owner will provide Green Media with an invoice in respect of the Media Space in accordance with the provisions of the Trade Exchange Agreement and Green Media will procure that the Brand Owner (or Green Media acting on behalf of the Brand Owner), issues an invoice to the Media Owner in accordance with provisions of the Trade Exchange Agreement. For purposes of clarity, the Media Owner will issue an invoice/s to Green Media (as agent, acting on behalf of the Brand Owner) or directly to the Brand Owner, at the request of Green Media, in respect of the provision of the Media Space and Green Media (acting on behalf of the Brand Owner), or the Brand Owner will issue an invoice/s to the Media Owner, in respect of the provision of the Products and/or Services, unless otherwise agreed in writing.

10.3 The respective invoices issued by the Parties in terms of clause 10.2 above, shall reflect equal amounts in South African Rand, which amounts will be aligned to the value of the Products and/or Services exchanged,  as set out in clause 1.7 of the Trade Exchange Agreement. 

10.4 The value of the Products and/or Services exchanged for the Media Space, and the value of the Media Space exchanged for the Products and/or Services, as set out in the Trade Exchange Agreement, shall in each case be deemed to be fair value for the exchange.

 

11 OBLIGATIONS OF GREEN MEDIA

In addition to the obligations of Green Media set out elsewhere in the Agreement, in the event of any dispute arising in terms of this Agreement in respect of the supply of the Products and/or Services and/or the Media Space or any other matter relating to or arising from this Agreement, Green Media (acting on behalf of the Brand Owner) shall represent the Brand Owner in such dispute in an attempt to resolve such dispute, however in the event that such dispute is not resolved within a period of 14 (fourteen) days, Green Media shall refer the Media Owner to the Brand Owner and the Brand Owner shall from then onwards liaise directly with the Media Owner in relation to the dispute in terms of clauses 22.2 and 22.3 below.

 

12 OBLIGATIONS OF THE MEDIA OWNER

12.1 The Media Owner will provide Green Media with proof of display/flighting of the Content in accordance with the Schedule, each Monday where required on a weekly basis, or the first Monday of the new month if required on a monthly basis, in terms of the Trade Exchange Agreement.

12.2 The Media Owner will notify Green Media:

12.2.1 when the Campaign has started; 

12.2.2 in the event that the actual quantity of Media Space supplied at the end of the Campaign is lower than the quantity indicated in the Trade Exchange Agreement (or any Flighting Schedule thereto); and

12.2.3 timeously of any material changes to the Media Space that would have an impact on the format of the Media Services, or on the Media Owner’s compliance with the Agreement.

12.3 Without detracting from any other rights of the Brand Owner (or Green Media) in terms of the Agreement, including the rights in terms of clause 18, in event of a notification by the Media Owner in terms of clauses 12.2.2, the Brand Owner (or Green Media) will be entitled to elect to receive a credit to utilise the underdelivered Media Space within a period of 18 (eighteen) months from the notification received from the Media Owner, and the Parties shall cooperate in good faith to agree in writing on the future dates and flighting/display details that shall apply in respect of such Media Space. In the event that the Parties are not able to agree on the future dates and flighting/display details within a period of 12 (twelve) months from the notification by the Media Owner referred to above, the Brand Owner (or Green Media) shall be entitled to pursue any other remedy or recourse available to it in relation to the Media Space which remains undelivered, including to claim that the Media Owner pay it an amount equal to the rand value of the portion of the Media Space that was not provided (calculated with reference to the value of the Media Space specified in clause 1.7 of the Trade Exchange Agreement and apportioned accordingly).

12.4 The Media Owner will:

12.4.1 provide Green Media with a monthly statement indicating the Media Space that has been supplied to a Brand Owner and whether the Brand Owner has any credits to its account (if applicable); and

12.4.2 not under any circumstances sell or resell the Products and/or Services provided in terms of the Trade Exchange Agreement, whether alone or in combination with any other products and/or services and will only use the Products and/or Services provided, in support of its business operations, such as for purposes of promotions, gifts and Staff incentives.

 

13 INTELLECTUAL PROPERTY

13.1 All Intellectual Property Rights belonging to a Brand Owner Participant, or the Media Owner prior to the Signature Date, will remain vested in such Brand Owner Participant, or the Media Owner (as the case may be). The Media Owner shall not obtain any rights of whatsoever nature in or to the Intellectual Property Rights of any Brand Owner Participant developed during the term of the Agreement. Neither of the Brand Owner Participants shall obtain any rights of whatsoever nature in or to the Intellectual Property Rights of the Media Owner developed during the term of the Agreement.

13.2 All Intellectual Property Rights in and to any Data of a Brand Owner Participant provided or accessed pursuant to the Agreement shall vest in and shall remain vested in such Brand Owner Participant. Where the Media Owner is provided access to the Data of a Brand Owner Participant, the Media Owner shall use such Data strictly in accordance with the terms of the Agreement and only for purposes of the Agreement. All Intellectual Property Rights in and to any Data of the Media Owner provided or accessed pursuant to the Agreement shall vest in and shall remain vested in the Media Owner and the Brand Owner Participants shall use such Data strictly in accordance with the terms of the Agreement and only for purposes of the Agreement.

13.3 No trademarks and/or brands of either of the Brand Owner Participants shall be used by the Media Owner for any purpose without obtaining prior written consent of the relevant Brand Owner Participant and then only in the manner prescribed. The trademarks and/or brands of the Media Owner shall not be used by the Brand Owner Participants for any purpose without obtaining prior written consent of the Media Owner and then only in the manner prescribed. 

13.4 The Media Owner acknowledges that all trade names, trademarks, services marks, content, text images or other materials relating to the Content and/or the Products and/or Services provided to the Media Owner in terms of the Agreement, are proprietary to or licensed by the Brand Owner and the Media Owner agrees that it is not entitled to use any such intellectual property without the prior written consent of the Brand Owner. 

13.5 The provisions of this clause 13 shall survive the expiry or termination of this Agreement for whatever reason.

 

14 CONFIDENTIALITY

14.1 Subject to the provisions of this clause 14, the Media Owner agrees to keep:

14.1.1 confidential the details of the Agreement, the details of the negotiations leading up to, and pursuant to, the Agreement, and any information handed over to it during the course of negotiations, as well as the details of all the transactions or agreements contemplated in the Agreement;

14.1.2 the Confidential Information of Green Media and the Brand Owner confidential and to disclose it only to its Staff who:

14.1.2.1 have a need to know (and then only to the extent that each such person has a need to know);

14.1.2.2 are aware that the Confidential Information should be kept confidential;

14.1.2.3 are aware of the Media Owner’s undertaking in relation to such information in terms of the Agreement; and

14.1.2.4 have been directed to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential or signed appropriate confidentiality and non-disclosure agreements.

14.2 Green Media and the Brand Owner shall be bound by the provisions of clause 14.1 in respect of the Confidential Information of the Media Owner.

14.3 The provisions of this clause 14 shall not apply to the disclosure of any Confidential Information of the Media Owner provided to Green Media or to which Green Media has access by virtue of the Agreement, to the extent that Green Media discloses such Confidential information to the Brand Owner. 

14.4 The Media Owner undertakes that if it becomes aware that there has been, as a result of or in the course of the performance of the Agreement, unauthorised disclosure or use of the Confidential Information of Green Media or the Brand Owner, it shall promptly bring the matter to the attention of Green Media in writing. If Green Media or the Brand Owner becomes aware that there has been, as a result of or in the course of the performance of the Agreement, unauthorised disclosure or use of the Confidential Information of the Media Owner the relevant entity shall promptly bring the matter to the attention of the Media Owner in writing.

14.5 The provisions of this clause 14 shall survive the termination or expiration of the Agreement.

 

15 DATA PROTECTION

15.1 The Media Owner shall comply with all applicable data protection laws, including the Protection of Personal Information Act 4 of 2013, in respect of the processing of any Personal Information supplied to it by the Brand Owner Participants and that it may be exposed to, or receive during the term of the Agreement and shall process such Personal Information only for purposes connected to the Agreement and otherwise in compliance with the instructions of the relevant Brand Owner Participant.

15.2 The Brand Owner Participants shall comply with all applicable data protection laws, including the Protection of Personal Information Act 4 of 2013, in respect of the processing of any Personal Information of the Media Owner that they may be exposed to, or receive during the term of the Agreement and shall process such Personal Information only for purposes connected to the Agreement and otherwise in compliance with the instructions of the Media Owner.

15.3 The Media Owner shall secure the integrity of all Personal Information supplied to it by each of the Brand Owner Participants, in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent:

15.3.1 loss of, damage to, or unauthorised destruction of the Personal Information; or

15.3.2 unlawful access to or unlawful processing of the Personal Information. 

15.4 The Brand Owner Participants shall secure the integrity of the Personal Information of the Media Owner in their possession or under their control by taking appropriate, reasonable technical and organisational measures to prevent:

15.4.1 loss of, damage to, or unauthorised destruction of the Personal Information; or

15.4.2 unlawful access to or unlawful processing of the Personal Information. 

 

16 WARRANTIES AND DISCLAIMERS

16.1 The Media Owner hereby warrants and undertakes to and in favour of the Brand Owner Participants that:

16.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into the Agreement;

16.1.2 the execution of the Agreement and the performance of its obligations hereunder does not and shall not contravene any law or regulation to which it is subject;

16.1.3 that the Media Owner is the lawful owner of the Media Space, that will be provided, or the lawful representative of the owner, or shall have the necessary rights in the Media Space to enter into the Agreement and that it will have such rights as at the date/s of flighting/display of the Content of the Brand Owner; 

16.1.4 it will only use the Products and/or Services received in terms of the Agreement for internal business purposes, such as promotions, gifts and staff incentives and will not resell such Products and/or Services; 

16.1.5 any Media Space provided by the Media Owner:

16.1.5.1 will conform to the description and specifications set out in the Trade Exchange Agreement; and

16.1.5.2 will be made available as specified in the Trade Exchange Agreement, including in accordance with the any Flighting Schedule thereto; 

16.1.6 the Content of the Brand Owner, as provided by Green Media will be correctly displayed/flighted and that such Content will not be changed by the Media Owner; and 

16.1.7 it will not breach the Intellectual Property Rights of the Brand Owner Participants, including in respect of any Content provided to it pursuant to the Agreement.

16.2 The Brand Owner warrants and undertakes in favour of the Media Owner that:

16.2.1 any information provided to the Media Owner in terms of the Agreement, will to the best of its knowledge be accurate;

16.2.2 any Services provided in terms of the Agreement will confirm to the Service Description and Service Specification (if any), set out in the Trade Exchange Agreement; 

16.2.3 any Products provided in terms of the Agreement shall:

16.2.3.1 comply with the Product Description and Product Specification (if any), set out in the Trade Exchange Agreement;

16.2.3.2 indicate their expiry dates (where applicable) and that such expiry dates shall not be any date occurring prior to the expiry of a period of 6 (six) months from delivery of the Products in terms of the Agreement.

16.3 Green Media warrants to the Media Owner that it is duly authorised by the Brand Owner to enter into the Agreement on behalf of the Brand Owner and that it may bind the Brand Owner to the terms of the Agreement; 

16.4 Each of the warranties and undertakings set out in clause 16.1 and 16.2 above shall be read separately from and without prejudice to and without derogation from the others. 

16.5 The Media Owner acknowledges and agrees that:

16.5.1 it has not relied on, and neither of the Brand Owner Participants have made, any undertakings, representations or warranties with respect to the quality or condition of the Products and/or Services, other than as set out in the Agreement and the Brand Owner Participants expressly disclaim, to the maximum extent permissible by law, all warranties in relation to the Products and/or Services provided in terms of the Agreement, whether express or implied, including any implied warranty of merchantability or fitness for purpose; 

16.5.2 it carries the full responsibility to determine whether the Products and/or Services are of an acceptable standard and/or fit for their intended use; and

16.5.3 where no warranty is provided in the Brand Owner Standard Terms, the Products and/or Services are provided “as is” at the sole risk of the Media Owner.

16.6 Green Media and the Brand Owner agree that neither of them have relied on, and the Media Owner has not made, any undertakings, representations or warranties with respect to the quality or condition of the Media Space, other than as set out in the Agreement.

 

17 LIMITATION OF LIABLITY AND INDEMNITY 

17.1 Subject to the provisions of clause 17.4, the liability of the Brand Owner Participants (collectively) to the Media Owner, or any other person, arising from the supply of the Products and/or Services in terms of the Agreement, or otherwise arising from or in relation to the Agreement, whether in contract, in delict or otherwise, shall not exceed the amount indicated as the value of the Products and/or Services to be provided by the Brand Owner, set out in clause 1.7 of the Trade Exchange Agreement. 

17.2 Subject to the provisions of clause 17.4, the liability of the Media Owner to the Brand Owner Participants arising from the supply of Media Space, or otherwise arising from the Agreement shall not exceed the amount indicated as the value of the Media Space to be provided by the Media Owner, set out in clause 1.7 of the Trade Exchange Agreement.

17.3 For purposes of clarity, it is recorded and agreed that Green Media will not be liable to the Media Owner in any capacity other than in its capacity as agent, acting for and on behalf of the Brand Owner and subject to the limitation set out in clause 17.1 above.

17.4 To the fullest extent permitted by law, in no event will any of the Brand Owner Participants be liable to the Media Owner or any other person, or the Media Owner be liable to the Brand Owner Participants for or in respect of:

17.4.1 any loss of profits, revenue, loss of goodwill, loss of business opportunities whether direct or indirect; or

17.4.2 any other indirect, special, punitive, exemplary or consequential claims, damages, costs, losses and/or expenses of any kind incurred or suffered by the other, 

arising from, or in connection with the Agreement, save that the above exclusions (apart from punitive damages) shall not apply in respect of the liability of the Media Owner, in event that the Media Owner has incorrectly flighted/displayed the Content of the Brand Owner.

17.5 The Media Owner indemnifies each of the Brand Owner Participants and holds them harmless, and the Brand Owner Participants indemnify the Media Owner and hold its harmless against all claims, costs, losses, expenses and/or damages of whatsoever nature and howsoever arising from a breach by the applicable indemnifying entity of:

17.5.1 any of the warranties contained in clauses 16.1, 16.2 and 16.3 above;

17.5.2 any of the provisions of clause 14 above; and/or

17.5.3 any of the provisions of clause 13 above.

17.6 The provisions of this clause 17 shall survive the termination or expiry of the Agreement.

 

18 BREACH AND TERMINATION

18.1 Subject to clause 18.2, either Party shall be entitled to terminate the Agreement immediately on written notice to the other Party, if the other Party is in breach of any of its obligations under the Agreement and has failed to remedy that breach within 10 (ten) Business Days after receiving written notice from the aggrieved Party requiring it to remedy that breach.

18.2 In the event that:

18.2.1 The Media Owner fails to timeously provide the flighting schedule to Green Media for approval as set out in clause 5.3; 

18.2.2 Any issues in relation to the flighting schedule referred to in clause 5.3 are raised and remain unresolved and/or Green Media has not indicated its acceptance of such  schedule, pursuant to clause 5.4;

18.2.3 the Media Owner raises any objection in relation to the Content provided by Brand Owner for flighting/display by the Media Owner in the Media Space, and the Parties are unable to resolve the dispute within the period set out in clause 9.3;

then, Green Media (or the Brand Owner) shall be entitled (but not obliged) to terminate the Agreement immediately upon providing written notice to the Media Owner, without incurring any liability in respect of such termination and without prejudice to any other rights or remedies of Green Media (or the Brand Owner) in terms of the Agreement or in law.

18.3 Nothing contained in this clause 18 shall preclude the terminating or aggrieved Party from claiming any other remedy available to it in terms of the Agreement or in law, including specific performance (as an alternative to terminating the Agreement) of any obligation which the other Party has breached.

18.4 Termination of this Agreement for whatever reason shall not affect the rights of the Parties that have accrued prior to the date of termination.

 

19 FORCE MAJEURE

19.1 A Party (the “Affected Party”) will not be liable for any default or delay in the performance of its obligations under this Agreement if and to the extent that such default or delay is caused by Force Majeure provided however, that the Affected Party is without fault in causing such default or delay.

19.2 Following any circumstance of Force Majeure, the Affected Party shall notify the other Party as soon as reasonably possible in writing and shall take all action within its power to comply with its obligations to the extent possible, but shall be excused from further performance or observance of its obligation(s) so affected for so long as such circumstances prevail.

19.3 If the circumstance of Force Majeure continues for more than 30 (thirty) consecutive days, a Party may terminate the Trade Exchange Agreement either in whole or in part on written notice to the Affected Party. In the case of a termination in part, there shall be an equitable adjustment of the Charges. 

 

20 NOTICES AND DOMICILIA

20.1 The Parties select as their respective domicilia citandi et executandi the physical addresses and contact details set out in the Trade Exchange Agreement for the purposes of giving or sending any notice provided for or required under the Agreement, provided that a Party may change its domicilium or its address for the purposes of notices to any other physical address or email 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.

20.2 All notices to be given in terms of the Agreement will be given in writing and will –

20.2.1 be delivered by hand or sent by email;

20.2.2 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; and

20.2.3 if sent by email during business hours, be presumed to have been received on the Business Day immediately following the date of successful transmission of the email, unless the contrary is proven. 

20.3 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 this clause 20.

 

21 BENEFIT OF THE AGREEMENT

This Agreement will also be for the benefit of and be binding upon the successors in title and permitted assigns of the Brand Owner and the Media Owner or either of them.

 

22 DISPUTE RESOLUTION

22.1 The Parties shall initially attempt in good faith to promptly resolve any dispute or claim arising out of or relating to the Agreement through negotiations between them.

22.2 If the dispute is not resolved through such negotiation within 14 (fourteen) days, Green Media shall refer the matter to the relationship manager of the Brand Owner and the Media Owner shall refer the matter to its relationship manager (as respectively set out in the Trade Exchange Agreement) for review and resolution. The abovementioned relationship managers shall meet and discuss the matter as soon as practicable after the matter is referred to them and in any event within 5 (five) days of the referral.

22.3 If the relationship managers referred to in clause 22.2 above fail to reach an agreement within a reasonable time and in any event within 5 (five) days of their meeting, any such dispute shall be referred to the senior executives nominated by the Chief Executive Office (or equivalent) of the Brand Owner and the Media Owner respectively and if such senior executives are unable to resolve such dispute within a period of 5 (five) days of the matter being referred to them, then each of the Brand Owner (or Green Media acting on behalf of the Brand Owner) and the Media Owner shall be free to pursue the rights granted to it by the Agreement in respect of such matter without further reference to the dispute resolution process. 

22.4 For the avoidance of doubt, this clause 22 shall not prevent either the Brand Owner or the Media Owner from seeking an interdict or other urgent relief from a court of competent jurisdiction in relation to any breach or threatened breach of the Agreement.

 

23 APPLICABLE LAW AND JURISDICTION

23.1 The Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.

23.2 The Parties hereby consent and submit to the non-exclusive jurisdiction of the South Gauteng division of the High Court of South Africa, Gauteng in respect of any dispute arising from or in connection with this Agreement.

 

24 GENERAL

24.1 Compliance with Laws

24.1.1 If the Agreement is regulated by or subject to the Consumer Protection Act 68 of 2008 (“CPA”), the Electronic Communications and Transactions Act 25 of 2002 (“ECT Act”) or other laws it is not intended that any provision of the Agreement contravenes any provision of the CPA, the ECT Act or other laws. Therefore, all provisions of the Agreement must be treated as being qualified, to the extent necessary, to ensure that the provisions of the CPA, the ECT Act or other laws are complied with.

24.1.2 To the extent that any provision of the Agreement is considered to be a penalty stipulation in terms of the Conventional Penalties Act, 15 of 1962: (i) the terms of the Agreement shall not be construed or interpreted in such a way as entitling a Party to recover both damages and the penalty and (ii) the aggrieved Party shall be entitled to recover damages in lieu of the relevant penalty.

24.2 Whole Agreement

The Agreement constitutes the whole agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of the Agreement and not incorporated in the Agreement shall be binding on either of the Parties.

24.3 Variations to be in Writing

No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of the Agreement will be of any force or effect unless in writing and signed by the authorised representatives of each Party. Reference in the Agreement to “in writing” or “written” means a written document and includes email, but excludes other forms of electronic communication. It is specifically recorded that hand-written signature, excluding any form of electronic signature, is required for the purposes of: (i) cancellation of the Agreement by mutual agreement between the Parties; (ii) clauses 24.5 and 24.8; (iii) variation or deletion of this clause 24.3 (iii) execution of the Schedule, provided that hand-written signature is required by Green Media in terms of the Trade Exchange Agreement; and (iv) execution of the Trade Exchange Agreement. 

Neither Party shall be bound by any terms and conditions of the other Party, appearing in any invoice, quotation or other documentation, other than as set out in or specifically incorporated in the Trade Exchange Agreement by reference.

24.4 No Indulgences

No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other (unless specifically set out in the Agreement) in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of either Party arising from the Agreement and no single or partial exercise of any right by either Party under the Agreement, shall in any circumstances be construed to be an implied consent or election by that Party or operate as a waiver or a novation of or otherwise affect any of its rights in terms of or arising from the Agreement or estop or preclude it from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.  

24.5 No Waiver or Suspension of Rights

No waiver or suspension by either Party of any right arising out of or in connection with the Agreement shall be of any force or effect unless in writing and signed by that Party.  Any such waiver or suspension will be effective only in the specific instance and for the purpose given. 

24.6 Provisions Severable

All provisions and the various clauses of the Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other.  Any provision or clause of the Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of the Agreement shall remain of full force and effect.  The Parties declare that it is their intention that the Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

24.7 Continuing Effectiveness of Certain Provisions

The expiration or termination of the Agreement shall not affect such of the provisions of the Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

24.8 No Assignment

Neither the Agreement nor any part, share or interest herein nor any rights or obligations hereunder may be ceded, delegated or assigned by the Media Owner without the prior signed written consent of Green Media, which consent shall not be unreasonably withheld.

24.9 Costs

Except as otherwise specifically provided herein, each Party will bear and pay its own legal costs and expenses of and incidental to the negotiation, drafting, preparation and implementation of the Agreement.