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 Gauteng.
All references to “you“, “your” and “Media Owner” (as further defined below) are deemed to refer to the person or entity that registers via the Website to subscribe to the platform provided by Green Media, in order to receive the ancillary services and make offers for products and/or services in exchange for media space. 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.
1.1 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 between Green Media and the Media Owner in respect of the Media Owner’s subscription to the Platform, concluded by means of the Media Owner selecting and submitting “I Agree” at the end of the registration process on the Website, as well as any additional compensation schedule that may be entered into between Green Media and the Brand Owner in respect of a particular Trade Exchange Transaction from time to time;
1.1.2 “Ancillary Services” means services provided by Green Media to the Media Owner, that are ancillary to the conclusion of Trade Exchange Agreements between Green Media (on behalf of the Brand Owner) and the Media Owner, as set out in clauses 5 and 6 below;
1.1.3 “Brand Owner” means a third-party that is the owner or supplier of certain products and/or services, that has subscribed to the trade exchange platform and related services provided by Green Media and that is prepared to enter into negotiations to exchange such products and/or services for media space provided by media owners;
1.1.4 “Business Day” means any day other than a Saturday, Sunday or public holiday in South Africa;
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 –
22.214.171.124 is lawfully in the public domain at the time of disclosure thereof;
126.96.36.199 subsequently becomes lawfully part of the public domain by publication or otherwise;
188.8.131.52 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
184.108.40.206 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 2009;
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 to the Media Owner for display/flighting in the Media Space as part of a Campaign, in terms of and as described generally in, the 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 “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;
1.1.11 “Media Owner” / “you” / “your” means –
220.127.116.11 the owner of a media channel and Media Space, that may be used for advertising purposes; or
18.104.22.168 a person or entity that has acquired Media Space from the owner of the media channel and the right to place advertisements without the further consent of the owner of the media channel;
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” at the end of the registration process, thereby entering into this Agreement, and whose full details appear in the online registration form;
1.1.12 “Media Space” means advertising space in an electronic or other media platform or channel, owned or made available by a Media Owner, including advertising space on television, radio, print, billboards and/or online media, which the Media Owner has advised Green Media is available for a potential Trade Exchange Transaction and/or which is provided in terms of an executed Trade Exchange Agreement (as may be applicable); and which includes the display/flighting of advertisement Content in such electronic or other media platform by the Media Owner in terms of a duly executed Trade Exchange Agreement;
1.1.13 “Parties” means the Media Owner and Green Media and “Party” shall mean either of them, as the context dictates;
1.1.14 “Platform” means the platform created and managed by Green Media to facilitate the exchange of Products and/or Services for media space and includes:
22.214.171.124 the Website, including the following webpage https://www.greenmedia.co.za/i-have-product-services-to-trade through which you have subscribed; and
126.96.36.199 the Ancillary Services provided by Green Media to facilitate the execution of Trade Exchange Agreements.
1.1.15 “Products” means the products supplied by a Brand Owner and communicated to Green Media by such Brand Owner as being available for a potential Exchange Trade Transaction and/or are provided in terms of an executed Trade Exchange Agreement (as may be applicable);
1.1.16 “Services” means the services provided by a Brand Owner and communicated to Green Media by such Brand Owner as being available for a potential Exchange Trade Transaction and/or are provided in terms of an executed Trade Exchange Agreement (as may be applicable);
1.1.17 “Staff” means any natural person who is either an employee, consultant or subcontractor of a Party and where the context requires, employees, consultants and subcontractors of a subcontractor;
1.1.18 “Territory” means the Republic of South Africa;
1.1.19 “Trade Exchange Agreement” means a written agreement entered into between Green Media (on behalf of a Brand Owner) and the Media Owner, in respect of the supply of Products and/or Services in exchange for the provision of Media Space, including all schedules thereto subsequently agreed between Green Media and the Media Owner in accordance with clause 5.8;
1.1.20 “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 Ancillary Services) and whereby Products and/or Services are exchanged for Media Space, as recorded in a Trade Exchange Agreement;
1.1.21 “VAT” means value-added tax, chargeable in terms of the Value Added Tax Act, 1991; and
1.1.22 “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 the 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 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.
2.1 Green Media has been appointed by various suppliers of products and/or services to procure media space for the display of advertisements, on their behalf, in exchange for the supply of their products and/or services to media owners.
2.2 Green Media provides a trade exchange facilitation platform that assists media owners who have subscribed to the platform, to make offers for the goods and/or services of the suppliers referred to in clause 2.1, in exchange for the supply of media space by the media owners.
2.3 The trade exchange facilitation platform provided by Green Media, includes the provision of certain services that are ancillary to the facilitation of the trade exchange process and conclusion of trade exchange agreements, from which media owners may benefit.
2.4 By your acceptance hereof you subscribe to the Platform and Green Media agrees to provide you with access to the Platform (including the Ancillary Services) for the purpose of concluding Trade Exchange Agreements, on the terms and conditions set out below.
3 access to the Platform
3.1 We will only provide you with access to the Platform, including the Ancillary Services if you have completed the online registration form, have been provided with the necessary log-in details to the Platform 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 Agreement, you will not have access to the Platform (including the Ancillary 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, you will be able to provide us with the information regarding the Media Space that you wish to provide and what your requirements are in respect of the Products and/or Services you wish to procure in exchange.
3.3 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.
3.4 By entering into this Agreement, you:
3.4.1 consent to us using your contact details and information provided during registration, to contact you to further ascertain your requirements, in order for us to provide you with access to the Platform including the Ancillary Services; and
3.4.2 agree to be bound by all the terms and conditions set out herein, regardless of whether the use of the Platform and/or the Ancillary Services culminate in the finalisation or execution of any Trade Exchange Agreements entered into pursuant to this Agreement, provided that those provisions specially indicating that they are only applicable in the event that a Trade Exchange Agreement is entered into, shall only apply in the event that a Trade Exchange Agreement is entered into.
3.5 Without in any way detracting from the provisions of clauses 6.3, 6.4, or 14, Green Media shall be entitled to conduct a preliminary assessment of the Media Owner, including whether the Platform has the potential to fulfil the Media Owner’s business requirements or needs, within a period of 7 (seven) Business Days of the Media Owner entering into this Agreement with Green Media. Where Green media reasonably determines that the Media 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 19.6 below. Green Media may, acting reasonably, decline or cease to provide the Ancillary Services in respect of any particular Trade Exchange Transaction, at any time upon written notice to the Media Owner, including where Green Media may suffer reputational harm, or where any compensation due to Green Media by the Media Owner has not been paid by the due date and until such default is remedied.
4.1 This Agreement shall commence upon the acceptance hereof by the Media Owner as set out in clause 3 above and shall endure until terminated in accordance with clause 19 below, provided that any such termination shall only take effect upon the termination or expiry of the last Trade Exchange Agreement still in force and entered into pursuant to this Agreement and provided further that the Ancillary Services in respect of any particular prospective Trade Exchange Transaction shall cease upon the execution of the relevant Trade Exchange Agreement.
4.2 Each Trade Exchange Agreement entered into pursuant to this Agreement shall commence on the date set out therein and endure for the period set out therein, or until terminated in accordance with its terms.
5 trade exchange process
5.1 Green Media has been appointed by various Brand Owners to:
5.1.1 present their Products and/or Services to media owners for purposes of exchanging such Products and/or Services for Media Space; and
5.1.2 procure Media Space on behalf of such Brand Owners, enter into Trade Exchange Agreements on behalf of such Brand Owners, and bind such Brand Owners to the terms of Trade Exchange Agreements, in accordance with their instructions.
5.2 You will be required to provide Green Media with a list of available Media Space and applicable rates from time to time, as available as well as your business needs or requirements in relation to Products and/or Services you require in exchange.
5.3 We will present to you from time to time, for the duration of this Agreement, the Products and/or Services of various Brand Owners, which we deem suitable for a prospective Trade Exchange Transaction, based on the business needs and requirements communicated by you to us.
5.4 We will then act as the liaison between you and the relevant Brand Owner/s for the purposes of the exchange of information in relation to the Products and/or Services and Media Space, and to facilitate the execution of Trade Exchange Agreement/s between us (on behalf of the Brand Owner/s) and you.
5.5 Each Trade Exchange Agreement entered into between you and us (acting on behalf of a Brand Owner) will:
5.5.1 be based upon the pro forma written agreement that Green Media shall provide to the Media Owner;
5.5.2 contain as a minimum the terms and conditions set out in clause 7; and
5.5.3 become a separate agreement between Green Media (acting on behalf of a Brand Owner), and the Media Owner, for the exchange of Products and/or Services for Media Space.
5.6 The terms of any one Trade Exchange Agreement shall not apply to any other Trade Exchange Agreement and each Trade Exchange Agreement shall be capable of termination in accordance with the provisions thereof without affecting the remaining Trade Exchange Agreements.
5.7 Green Media’s execution/signature of a Trade Exchange Agreement duly executed/signed by you, shall represent the conclusion of a binding agreement between Green Media (acting on behalf of a Brand Owner) and you, in respect of a particular Trade Exchange Transaction.
5.8 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 times in accordance with which the Content will be flighted/displayed by the Media Owner. The Media Owner will be required to provide Green Media with such written schedule not later than the date set out in the relevant Trade Exchange Agreement and once such schedule has been approved by Green Media (on behalf of the Brand Owner) via email or otherwise in writing, such schedule shall represent the conclusion of a binding schedule to the Trade Exchange Agreement which shall form part of the Trade Exchange Agreement. Where requested by Green Media, a schedule to the Trade Exchange Agreement as contemplated in this clause, shall be physically signed by both Green Media (on behalf of the Brand Owner) and the Media Owner.
5.9 The Media Owner shall, upon written request by Green Media, provide the names and designation of the person/s who are authorised to execute Trade Exchange Agreements and/or send the final versions of the schedules to the Trade Exchange Agreements contemplated in clause 5.8, for acceptance by Green Media (on behalf of the Brand Owner). The Media Owner 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 Agreement on behalf of the Media Owner is so authorised, as well as any other representative of the Media Owner who contacts Green Media in relation to a prospective Trade Exchange Transaction or Trade Exchange Agreement.
5.10 You hereby acknowledge and agree that Green Media will be acting as an intermediary between you and the Brand Owner in respect of each prospective Trade Exchange Transaction, however upon finalisation of the details in respect of a Trade Exchange Transaction and receipt by Green Media of the specific authority to act on behalf of the Brand Owner in respect of the execution of a Trade Exchange Agreement in respect of that Trade Exchange Transaction (and for the duration of such Trade Exchange Agreement), Green Media will act on behalf of the Brand Owner and will only continue to provide any residual Ancillary Services in respect of such Trade Exchange Transaction, until the execution of the relevant Trade Exchange Agreement.
6 Ancillary Services
6.1 Green Media will from time to time present to you certain Products and/or Services which you may wish to exchange for Media Space and will thereby assist you to make offers for such Products and/or Services to Brand Owners which, once negotiations are finalised, will be set out in Trade Exchange Agreements. Green Media will act as the liaison between you and the Brand Owner during discussions and negotiations in respect of prospective Trade Exchange Transactions.
6.2 Green Media will further:
6.2.1 provide you with information in respect of the Products and/or Services that you express an interest in, to assist you to decide whether you wish to enter into a Trade Exchange Agreement in respect of such Products and/or Services;
6.2.2 provide information regarding your Media Space which is available for exchange, to Brand Owners which Green Media deem to be appropriate;
6.2.3 manage the further exchange of information in relation to the negotiation process in order to finalise the details of a trade exchange transaction, in order for a Trade Exchange Agreement to be concluded;
6.2.4 endeavour to keep you informed of the progress of negotiations and identify any inability to obtain the Products and/or Services required by you.
6.3 We do not warrant that the Products and/or Services suggested by us will meet your requirements or be suitable for your intended use, other than as specifically set out in the relevant Trade Exchange Agreement. You are responsible for ensuring that the Products and/or Services you wish to acquire are correctly described in each Trade Exchange Agreement and meet your requirements.
6.4 You acknowledge and agree that:
6.4.1 this Agreement is not intended to and does not operate as an exclusive agreement between you and us and for purposes of clarity, Green Media is not hereby appointed as and neither will it act as your agent;
6.4.2 Green Media is not under any obligation to provide information relating to your Media Space to any particular number or types of Brand Owners, neither is it under any obligation to procure the execution of a certain number of Trade Exchange Agreements or to enter into a certain number of Trade Exchange Agreements with you on behalf of Brand Owners, or to meet any targets in this regard or otherwise in relation to the provision of the Ancillary Services;
6.4.3 Green Media shall not be obliged to enter into any particular Trade Exchange Agreement pursuant to this Agreement; and
6.4.4 Green Media shall present Products and/or Services to you for consideration as it deems fit in its sole discretion.
7 Trade Exchange AgreemeNts
Each Trade Exchange Agreement will contain as a minimum but not be limited to, the following terms:
7.1 a description of the Products and/or Services to be exchanged for the Media Space and a description of the Media Space to be exchanged for the relevant Products and/or Services;
7.2 a description of the Campaign of the Brand Owner and the Content that will be displayed in the Media Space, as well as the flighting/display schedule setting out the slots and dates that the Content will be displayed, or the date by which such schedule is to be provided by the Media Owner to Green Media for its approval on behalf of the Brand Owner;
7.3 an obligation on the Media Owner to provide Green Media with proof of flighting/display of Content at the agreed intervals;
7.4 the following warranties and/or undertakings in favour of Green Media and the Brand Owner:
7.4.1 that you are the lawful owner of the Media Space, that you will provide (or the lawful representative of the owner, or have the necessary rights in the Media Space to enter into a Trade Exchange Agreement) at the time of entering into the Trade Exchange Agreement and will be such, at the time that the exchange takes place and as at the date/s of flighting/display of the Content of the Brand Owner; and
7.4.2 that you will only use the Products and/or Services received in terms of the Trade Exchange Agreement for internal business purposes, such as promotions, gifts and staff incentives and that you will not resell such Products and/or Services;
7.4.3 that any Media Space provided by you:
188.8.131.52 will conform to the description and specifications set out in the Trade Exchange Agreement;
184.108.40.206 will be made available as specified in the Trade Exchange Agreement, including in accordance with the agreed flighting schedule and advertising slots set out therein;
7.4.4 that advertisements and Content of Brand Owners will be correctly displayed and flighted by the Media Owner, as set out in the Trade Exchange Agreement and as provided by Green Media to the Media Owner;
7.4.5 that you will not act unreasonably in the application of any of its requirements set out in the Trade Exchange Agreement, with which the Content must comply;
7.4.6 that you will not breach the intellectual property rights of the Brand Owner or Green Media, including in respect of any Content provided to you pursuant to the Trade Exchange Agreement;
7.5 an indemnity by you in favour of Green Media and the Brand Owner, in respect of any costs, expenses, damages and/or losses that are incurred or suffered by Green Media and/or the Brand Owner as a result of a breach by you or your Staff of any of the provisions relating to intellectual property rights, confidentiality and/or the warranties and/or undertakings provided by you, in terms of the Trade Exchange Agreement.
7.6 the agreed and fair market value of the Media Space and Products to be exchanged and other financial arrangements of the exchange;
7.7 warranties and undertakings by both Parties similar to those contained in clause 12.1 below, provisions relating to the limitation of the liability of the Parties, and breach and termination provisions.
8 financial arrangements
8.1 The Media Owner acknowledges and agrees that the total retail value of all the Products and/or Services received by the Media Owner in terms of a Trade Exchange Agreement (regardless of the price thereof reflected in the applicable Trade Exchange Agreement) (“P&S Value”) shall not be more than 80% and not less than 20% of the total value of the Media Space (calculated in accordance with the rate card provided by the Media Owner to Green Media), to be exchanged for such Products and/or Services in terms of that Trade Exchange Agreement (“Media Space Value”) unless otherwise agreed in writing between the Parties.
8.2 The provision by Green Media of access to the Platform (including the provision of the Ancillary Services) in terms of this Agreement shall be free of charge, subject to the provisions of clause 8.3 below.
8.3 In respect of certain prospective Trade Exchange Transactions, and in order for the Media Owner to continue receiving the Ancillary Services in respect of such prospective Trade Exchange Transactions, Green Media shall be entitled to negotiate that compensation be provided by the Media Owner to Green Media, in the form of media space equivalent in value to an agreed percentage of the difference between the P&S Value and the Media Space Value. In the event that the Parties reach agreement on such compensation, the agreed media space will be provided to Green Media in addition to the Media Space to be provided to the Brand Owner under the applicable Trade Exchange Agreement, and the applicable percentage (and resulting compensation) will be set out in a written compensation schedules to this Agreement and duly executed/signed by the Parties simultaneously with the applicable Trade Exchange Agreement/s. In the event that the Parties are unable to reach agreement on the compensation to be provided to Green Media in terms of this clause, Green Media shall be entitled but not obliged to cease rendering the Ancillary Services to the Media Owner in relation to such prospective Trade Exchange Transactions in respect of which Green Media’s compensation could not be agreed.
8.4 The media space provided as compensation to Green Media, as set out in clause 8.3 above, will be provided/made available by the Media Owner, to Green Media for use within 18 (eighteen) months of the relevant compensation schedule being executed, unless otherwise agreed between the Parties in writing.
8.5 Any amount indicated as the value of the Products and/or Services, or the value of the Media Space in a Trade Exchange Agreement will be considered to be exclusive of VAT.
9.1 In the event that the Media Owner obtains access to the details of the Brand 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 Trade Exchange Agreement (or in any other way as a result of the Media Owner’s use of the Platform, including the Ancillary Services), neither the Media Owner, nor any person, business or entity in which the Media Owner has a direct or indirect interest, financial or otherwise, shall be entitled to enter into any trade exchange or barter agreement with the Brand Owner (including for the purposes 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, for the exchange of any Products and/or Services of the Brand Owner for media space of the Media Owner, for a period of 24 (twenty four) months after:
9.1.1 the Media Owner has become aware of the identity of, or been introduced to the Brand Owner by Green Media, or
9.1.2 the expiry or termination of the last Trade Exchange Agreement entered into with Green Media (acting on behalf of such Brand Owner) pursuant to this Agreement,
whichever occurs last.
9.2 The Media Owner agrees that it shall only liaise with Brand 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 a Trade Exchange Agreement.
9.3 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 Media Owner shall not:
9.3.1 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
9.3.2 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.
9.4 The Parties acknowledge that they have given careful consideration to the restraints undertaken in this clause 9 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 Ancillary 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.
9.5 The provisions of this clause 9 shall survive the expiry or termination of this Agreement, until each restraint period has expired in accordance with the terms hereof.
10 Obligations of the Media Owner
10.1 The Media Owner shall not:
10.1.1 display, copy, print, post, republish or redistribute any content or material that it receives in respect of the Platform (including the provision of the Ancillary Services), including any content or material accessed or received via the Platform for the benefit of any other website, application or purpose;
10.1.2 use the Platform in any way that is unlawful, illegal, fraudulent or harmful to Green Media the Brand Owner or any other person, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity; or
10.1.3 use the Platform to provide any services to third parties.
10.2 The Media Owner shall:
10.2.1 notify Green Media immediately if it cannot provide access to the Media Space to Brand Owners;
10.2.2 ensure that the Media Space that it makes available for exchange in terms of this Agreement does not consist mainly of inferior advertising slots
10.2.3 provide Green Media with not less than 1 (one) Business Day’s prior written notice of any material changes to its Media Space that would have an impact on any potential Trade Exchange Transactions;
10.2.4 respond promptly and efficiently to any enquires from Brand Owners about the Media Space, as communicated by Green Media;
10.2.5 provide to Green Media all necessary co-operation in relation to this Agreement and all necessary access to such information, specifications and rate cards as may be required by Green Media for the purposes of providing the Ancillary Services.
10.2.6 comply with and ensure that the Media Space complies with all applicable laws and regulations;
10.2.7 obtain and maintain all necessary authorisations, consents and permissions necessary for Green Media to perform its obligations in terms of this Agreement; And
10.2.8 remain solely responsible for the maintenance and operation of the Media Space.
10.3 In the event of any delays in the Media Owner’s provision of information and/or assistance in relation to a potential trade exchange transaction, Green Media may adjust any agreed timetable or delivery scheduled as reasonably necessary.
11 obligations of Green Media
11.1 Green Media shall:
11.1.1 provide the Ancillary Services in a workmanlike manner, with the necessary care and skill; and
11.1.2 shall notify the Media Owner of any circumstances that may reasonably be expected to jeopardise the performance of the Ancillary Services.
11.2 This Agreement does not constitute Green Media as the agent of the Media Owner, neither shall it prevent Green Media from entering into any agreements with third parties similar to this Agreement, or providing services similar to those set out herein to any other third party.
12.1 Each of the Parties hereby warrants to and in favour of the other that:
12.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into this Agreement; and
12.1.2 the execution of this Agreement and the performance of its obligations hereunder does not and shall not contravene any law or regulation to which that Party is subject.
12.2 The Media Owner warrants and undertakes that:
12.2.1 all information provided to Green Media will to the best of its knowledge be accurate and complete;
12.2.2 it is the lawful owner of any Media Space that it offers to Green Media for a potential trade exchange in terms of this Agreement (or the lawful representative of the owner, or has the necessary rights in the Media Space to enter into a Trade Exchange Agreement) and that this will be the case at the time that the Trade Exchange Agreement is entered into and when the Media Space is used by the Brand Owner;
12.2.3 that it will not (neither will the Media Space nor the Media Owner’s flighting/display of the Content in the Media Space) at any time breach any applicable laws, or the Intellectual Property Rights of the Brand Owner, Green Media or any third party;
12.2.4 the performance by Green Media of its obligations set out in this Agreement will not result in the breach of any laws applicable to the Media Space;
12.2.5 the natural person who enters into this Agreement on behalf of the Media Owner, is validly and duly authorised to do so;
12.2.6 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; and
12.2.7 it is not relying on any statement or representation by Green Media except those expressly set forth herein.
12.3 Each of the warranties and undertakings set out in clauses 12.1 and 12.2 above shall be read separately from, without prejudice to and without derogation from the others.
13.1 The Media Owner indemnifies and holds Green Media harmless against any costs, losses, expenses damages and/or claims of whatsoever nature, that may arise out of or in connection with a breach of the warranties provided in terms of clause 12 above.
13.2 The Media Owner indemnifies and holds Green Media harmless against any costs, losses, expenses, damages and/or claims of whatsoever nature, in the event that Green Media Suspends the Ancillary Services as set out in clause 22.10, or that arise out of or in connection with any breach of the provisions of clauses 9, 15 and 16 below.
13.3 Green Media will notify the Media Owner in writing of any proceedings instituted by a third party or the Brand 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 Media Owner shall, at its expense, defend any action instituted against Green Media. Green Media will assist the Media Owner by providing the Media Owner with such reasonable information as the Media Owner may require, in order to defend any of the aforesaid proceedings.
13.4 This clause 13 shall survive the expiry or termination of this Agreement.
14 Limitation of Liabilty and disclaimer
14.1 The Media Owner acknowledges that Green Media is not in any way responsible or liable for, or in respect of, the Products and/or Services, the Media Space, or Content provided in respect of any Trade Exchange Transaction and/or Trade Exchange Agreement, by virtue of provision of access to the Platform (including the rendering of the Exchange Services), or otherwise in terms of this Agreement.
14.2 In the event that the Platform (including the provision of the Ancillary Services) does not conform to the obligations or undertakings of Green Media set out in this Agreement, Green media will use reasonable commercial endeavours to correct or substitute any such non-conformance. Such correction or substitution constitutes the sole and exclusive remedy for any breach of an obligation or undertaking set out herein. Notwithstanding the aforegoing, Green Media does not warrant that Platform (including the Ancillary Services) will meet the Media Owner’s requirements or be error free and is not responsible for any delays, delivery failures, or any other losses or damages resulting from the provision of access to the Platform. The Platform (including the Ancillary Services) is provided “as is” without warranty of any kind and use of the Platform and Ancillary Services is at the Media Owners own risk.
14.3 Subject to clause 14.2, to the fullest extent permitted by law, in no event will Green Media be liable to the Media Owner or any other person for any claims, costs, expenses, losses or damages, whether in contract or delict, arising directly or indirectly in connection with this Agreement or any Trade Exchange Transaction, including any loss of profits, revenue, loss of goodwill, loss of data or loss of business opportunities or any other direct, indirect, special, punitive, exemplary or consequential losses, of any kind.
14.4 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.
14.5 This clause 14 shall survive the expiry or termination of this Agreement.
15 Intellectual Property rights
15.1 The Media Owner acknowledges that Green Media and/or its licensors owns all rights, title and interest (including all Intellectual Property Rights) in the Ancillary Services and the Platform and the Media Owner shall not obtain any rights of whatsoever nature in or to the Intellectual Property Rights of Green Media developed during the term of the Agreement. Neither this Agreement nor any Trade Exchange Transaction shall grant the Media Owner any right, title or interest in or to the Intellectual Property Rights of Green Media or any content or media accessed by the Media Owner pursuant thereto. The trademarks and/or brands of Green Media shall not be used by the Media Owner for any purpose without obtaining prior written consent of Green Media and then only in the manner prescribed.
15.2 All Intellectual Property Rights in and to any Party’s data provided or accessed pursuant to the Agreement, shall vest in and shall remain vested in such Party. Where the other Party is provided access to a Party’s data, the other Party shall use such data strictly in accordance with the terms of this Agreement and only for purposes of this Agreement.
15.3 During the term of this Agreement, the Media Owner grants to Green Media, a licence to use the designs, logos, brochures and marketing materials that the Media Owner may provide to Green Media, for 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 purposes of providing the Ancillary Services.
15.4 Clauses 15.1 and 15.2 shall survive the expiry or termination of this Agreement.
16.1 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 16 shall not apply to Green Media, in respect of the information of the Media Owner contemplated in clause 17.2 which is provided to the Brand Owner. In no event shall the Parties use less than reasonable efforts to protect the confidentiality of the Confidential Information.
16.2 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 perform their obligations or 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.
16.3 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 Media Owner will not use or disclose any of the financial arrangements contained in clause 8 without Green Media’s prior written consent.
16.4 The Media Owner agrees that it shall be bound by the provisions of this clause 16 in respect of all Confidential Information of the Brand Owner, provided to it by Green Media in terms of this Agreement.
16.5 This clause 16 shall survive the expiry or termination of this Agreement.
17 privacy and Data Protection
17.1 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 Ancillary Services. By continuing to use the Platform, including the Ancillary 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.
17.2 Should you decide to make use of our Platform and/or the Ancillary 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 access to the Platform, including the Ancillary Services leading up to the conclusion of a Trade Exchange Agreement. This may include (amongst other things) all information provided to us on the registration page completed by you prior to your acceptance of this Agreement, as well as all information provided to us in respect of your Media Space and the Products and/or Services that you require, in order for us perform our obligations in terms of this Agreement. You hereby specifically consent to our disclosure of the following information to Brand Owners that we liaise with for purposes of providing the Ancillary Services and/or in respect of a potential Trade Exchange Transaction:
17.2.1 your details provided to use when you registered to subscribe to the Platform;
17.2.2 details shared by you with Green Media regarding your business (including business needs and requirements);
17.2.3 details of your Products and Services; and
17.2.4 any other information required to progress negotiations with a Brand Owner, to enable Green Media to provide the Ancillary Services, enable Brand Owners to provide the Products and/or Services, and generally to enable the implementation of this Agreement and any Trade Exchange Agreement entered into pursuant hereto.
17.3 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 Brand Owners, unless you specifically inform Green Media in writing that such information is not be shared with Brand Owners.
17.4 You may edit any of your personal information referred to in clauses 17.2 by logging in to your profile on the Website at any time.
17.5 The supply of your personal information and other data is voluntary. However, you acknowledge that we cannot provide the Ancillary 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 Ancillary Services.
17.6 The purpose for which we will use your personal information and other data provided by you, is to provide you with access to the Platform, including the Ancillary Services, including the facilitation of the exchange transaction and the completion thereof in terms of a Trade Exchange Agreement and –
17.6.1 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 Ancillary Services; and
17.6.2 to contact you to advise you that we have changed or are about to change certain terms and conditions or the content of the Ancillary Services.
17.7 Should you no longer wish to receive marketing communications from us, you may send us an email at email@example.com.
17.8 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 –
17.8.1 required in order to comply with applicable law, order of court or legal process served on Green Media; and/or
17.8.2 disclosure is necessary to protect and defend the rights or property of Green Media.
17.9 We will:
17.9.1 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;
17.9.2 promptly notify you if we become aware of any unauthorised use, disclosure or processing of your personal information;
17.9.3 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.
17.10 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.
17.11 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 firstname.lastname@example.org or any other address indicated from time to time on the Platform).
17.12 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 or other data in the event that the Brand Owner is based outside of South Africa.
17.13 If this clause or any provision in this clause is regulated by or subject to the Protection of Personal Information Act (“POPI“) or other applicable data protection laws or legislation, it is not intended that any provision of this clause contravenes any provision of POPI or other applicable data protection laws or 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 applicable data protection laws or legislation are complied with.
17.14 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.
18 AMENDMENTS TO THE Agreement
We may change the provisions of the Subscription Agreement 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 such notification is provided by us and you may be required to read and accept them to continue your use of the Platform (including the Ancillary Services). In the event that you do not agree with any changes to this Agreement you will be required to notify us in writing and will be entitled to exercise your right to terminate this Agreement in terms of clause 19.7. Should you continue to use the Platform and/or the Ancillary Services after such new or amended terms take effect, you will be deemed to have accepted such new or amended terms.
19 breach and Termination
19.1 In the event of any of the Parties (“Defaulting Party“) committing a breach of any of the terms of this Agreement and failings 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.
19.2 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.
19.3 The Aggrieved Party’s remedies are without prejudice to any other remedies to which the Aggrieved Party may be entitled in law.
19.4 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 Media Owner shall immediately deliver all compensation due in respect of the provision of access to the Platform and the Ancillary Services.
19.5 In the event that Green Media has not sent any written communication to the Media Owner (other than the email containing the Platform login details) within a period of 7 (seven) Business Days from the date on which the Media Owner entered into this Agreement with Green Media, then this Agreement shall terminate and be of no further force or effect (subject to clause 22.8) and Green Media shall not incur any liability in respect of such termination.
19.6 Green Media shall be entitled to terminate this Agreement, without incurring any liability in respect of such termination, within 7 (seven) Busines Days of the Media Owner entering into this Agreement with Green Media, upon providing written notice to the Media Owner.
19.7 Either Party may terminate this 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 Trade Exchange Agreement still in force and entered into pursuant to this Agreement, and provided further that upon expiry of the 30 (thirty) day notice period, Green Media will no longer be required to provide the Ancillary Services, except as may be necessary in relation to any Trade Exchange Transaction in respect of which Green Media already holds authority granted by the Brand Owner to conclude the Trade Exchange Agreement and until such Trade Exchange Agreement is executed.
20.1 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 –
73 Bowling Avenue, Morningside Manor, Johannesburg
The address provided to Green Media on registration.
As provide 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.
20.2 All notices to be given in terms of this Agreement will be given in writing and will –
20.2.1 be delivered by hand courier service or email; and
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.
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 clause 20.1.
21 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 Ancillary 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.
22.1 If this Agreement or the Ancillary Services made available via the Platform or any part thereof 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.
22.2 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 Ancillary Services provided by such consultants, service providers or representatives.
22.3 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 Media Owner.
22.4 The references in this Agreement to the “execution” of a Trade Exchange Agreement (excluding the schedules thereto, as contemplated in clause 5.8), or a compensation schedule (as contemplated in clause 8.3), or the use of “signed”, “entered into” and/or “in writing” in relation to a Trade Exchange Agreement (excluding in relation to the schedules thereto) or a compensation schedule shall, notwithstanding anything to the contrary in this Agreement, be read and construed as excluding any form of electronic signature.
22.5 You may not cede, assign or otherwise transfer your rights and obligations in terms of this Agreement to any third party.
22.6 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.
22.7 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 any reason, the remaining terms and conditions will remain in full force and effect.
22.8 Notwithstanding anything to the contrary contained 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, notwithstanding that the clauses themselves do not expressly provide for this.
22.9 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.
22.10 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.
22.11 This Agreement, and any compensation schedules that may be concluded pursuant to this Agreement, relating to additional compensation to be provided to Green Media, 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.
23 additional information
23.1 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 in this Agreement) –
23.1.1 Description of main business: provision of barter/exchange platform and/or related services for the exchange/barter of products, services and media space
23.1.2 Office bearers: Angus Murray-Smith
23.1.3 Official website: www.greenmedia.co.za
Email address: email@example.com
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