These Terms are the contract:
(i) the party to the applicable insertion order (“IO”) (whether principal or agent)(“Advertiser”); and (ii) Health24 (Pty) Ltd, (Registration No. 2000/012930/07) Of 11 on Adderley, Adderley St, Cape Town, 8001, Republic of South Africa (“Health24”)
The rendering of advertisements (“the Ads”) on participating websites (each “a Website”) (“the Ad Rendering”).
1. The T&C’s shall be read with the IO. If there is a conflict, the IO shall take precedence.
2. Each IO shall be in the form required by Health24 (Pty) Ltd.
3. The IO shall specify the details of the Ads to be rendered and of the Website(s) (“the Deliverables”), the applicable commercial terms, details of any third party ad server (“3rd Party Ad Server”) and any special conditions.
4. No IO shall bind Health24 (Pty) Ltd unless accepted by it. Health24 (Pty) Ltd shall endeavor to accept the IO within 2 business days of receipt. Acceptance shall either be written or by the first Ad impression delivered by Health24 (Pty) Ltd pursuant to the IO.
5. Revisions to an IO shall not be binding unless signed by both parties.
6. Health24 (Pty) Ltd may deviate from an IO if agreed to by Advertiser or where Health24 (Pty) Ltd is acting in a manner it reasonably considers to be in the interests of Advertiser.
.7 Health24 (Pty) Ltd shall endeavor to provide Advertiser 10 business days’ notice if Health24 (Pty) Ltd becomes aware of any material changes to the Website that may potentially materially change the target audience or significantly affect the size or placement of an Ad (“Website Modification” ).
8. If Health24 (Pty) Ltd gives Website Modification notice or if no Website Modification notice is given but facts exist that reasonably entitle Advertiser to such a notice, then Advertiser, as its sole remedy, may cancel the then remainder of the IO without penalty provided it gives written notice to Health24 (Pty) Ltd within 10 days of either the notice or it becoming aware of the relevant facts.
9. Notwithstanding Website Modification, Advertiser may not be entitled to cancel where the Ads concerned are to be rendered earlier than 10 days from the date of the acceptance of the relevant IO.
10. Within two business days of acceptance of an IO, Health24 (Pty) Ltd shall provide to Advertiser final technical specifications for the Ads. If those specifications change after that period then Advertiser may suspend the start date of the Ads by a reasonable period to allow it to (i) provide a revised Ad; (ii) request that Health24 (Pty) Ltd resize the Ad at Health24 (Pty) Ltd cost; (iii) agree to a comparable replacement in good faith; or (iv) failing (iii) within 5 business days, cancel the then remainder of the IO without penalty.
11. Advertiser shall pay to Health24 (Pty) Ltd the amount stated on the IO (plus VAT thereon) for the Ad Rendering within 30 days of invoice unless otherwise provided for in the IO. Such amount will be based on the campaign dates as stated on the IO and will not be pro-rata on a per impression delivered basis.
12. Should Advertiser fail to pay any amount by its due date or otherwise breach any obligation it owes to Health24 (Pty) Ltd, Health24 (Pty) Ltd may (as one of its remedies) suspend the Ad Rendering.
13. Interest at the prime interest rate charged by ABSA Bank Ltd shall accrue on all overdue amounts from the due date until date of payment.
14. A certificate by any director of Health24 (Pty) Ltd, whose appointment authority need not be proved, shall be prima facie proof of the amount of Advertiser’s indebtedness to Health24 (Pty) Ltd for purposes of obtaining summary judgment or provisional sentence.
15. In the event of Health24 (Pty) Ltd instructing its attorneys to recover monies from Advertiser, Advertiser shall be liable for and shall pay all legal costs incurred by Health24 (Pty) Ltd on an attorney/client scale, inclusive of collection commission.
16. Advertiser agrees that, whilst Health24 (Pty) Ltd uses reasonable efforts to prevent click fraud, Advertiser shall have no claim of any nature whatsoever against Health24 (Pty) Ltd in the event of any click fraud arising in respect of the Ads.
17. Where Advertiser is represented by an agent or is located outside of South Africa, Health24 (Pty) Ltd may require Advertiser to confirm that agent’s representative capacity and may impose further conditions to Health24 (Pty) Ltd acceptance of the IO, including advance payment.
18. An agent, by signing an IO, agrees (in its own capacity and not as representative of its principal) to indemnify Health24 (Pty) Ltd from any and all losses incurred as a result of Advertiser’s breach of any obligations to Health24 (Pty) Ltd
19. Health24 (Pty) Ltd shall provide Advertiser with such reports as Advertiser may reasonably require from time to time.
a) Advertiser may cancel any IO, without penalty, if notice is given to Health24 (Pty) Ltd more than 30 days prior to the rendering of the first Ad contemplated in the IO. If a shorter cancellation notice is given then Advertiser is liable to Health24 (Pty) Ltd for the cost of those Ads scheduled to be rendered during the 30 day period following the notice. For clarity and by way of example, if Advertiser cancels the IO 15 days prior to the serving of the first impression, Advertiser will only be responsible for the first 15 days of the IO;
b) however, Non-standard CPM advertising placement IO’s, including but not limited to sponsorships, newsletters, promo-mailers and packaged offers may not be cancelled by the Advertiser at any time. Notwithstanding the aforesaid, the Advertiser will be held accountable for the full value of the placement for its entire duration as stipulated in the IO.
21. Campaign postponements:
a) Where it is able to accommodate postponement requests, received from the Advertiser in writing and that explicitly state postponement dates, Health24 (Pty) Ltd shall endeavor to execute such postponement in accordance with the request received.
b) Any postponement shall be subject to inventory availability within the new campaign date range and should insufficient inventory be available, Health24 (Pty) Ltd shall afford the Advertiser inventory on an alternative environment, save that the Advertiser shall remain liable for the full campaign billing value as per the original IO (without the consideration of any discount or credits) irrespective of whether or not the Advertiser agrees to the alternative inventory offered by Health24 (Pty) Ltd.
c) Billing and payment of all fees shall be as per the original IO campaign dates and shall not be amended in respect of the postponement dates.
d) Should the Advertiser opt to cancel the IO after requesting a postponement, albeit such cancellation is affected prior to, or within, the postponed campaign period, the cancellation shall revert back to the original campaign commencement date and any cancellation fees shall be determined as from the original campaign start date.
22. Late material supply:
a) Material is deemed to be supplied late by the Advertiser, when such material is delivered to Health24 (Pty) Ltd less than 5 (five) business days prior to the rendering of the first Ad contemplated in the IO (“the Late Material”).
b) Whilst Health24 (Pty) Ltd shall endeavor to implement the Late Material in time to render the first Ad contemplated in the IO, Health24 (Pty) Ltd shall not in any event whatsoever be held liable to the Advertiser or any third party should the first Ad not be rendered by the specified campaign start date as per the IO.
c) Health24 (Pty) Ltd shall not be held liable by the Advertiser and/or any third party for any reason whatsoever in the event that the supply of the Late Material effects Health24 (Pty) Ltd ability to meet its obligations as per the IO, save that Health24 (Pty) Ltd shall use its reasonable commercial endeavors to meet the IO delivery requirements for CPM campaigns. The Advertiser shall remain liable for the full payment of the IO, notwithstanding Health24 (Pty) Ltd failure to meet its delivery obligations as a result of the Advertiser’s supply of the Late Material.
d) However, if the Advertiser supplies Late Material to be implemented in respect of Nonstandard CPM advertising placement IO’s, including but not limited to sponsorships, newsletters, promo-mailers and packaged offers, the Advertiser shall forfeit those days affected by the supply of the Late Material with no recourse whatsoever, and the Advertiser shall remain liable for the full IO value, including such forfeited placements.
e) notwithstanding paragraph 22d) above, Health24 (Pty) Ltd shall, inventory permitting, use its reasonable commercial endeavors to deliver as per the original IO requirements, save that Health24 (Pty) Ltd shall not be held liable in any circumstances whatsoever, nor shall the Advertiser be entitled to withhold any payments due to Health24 (Pty) Ltd, should Health24 (Pty) Ltd be unable to find suitable replacement inventory and/or placements.
23. Either party may terminate an IO at any time if the other party is in material breach of its obligations under these T&C’s, any IO or any policy (as contemplated below) and that breach, if it can be cured, is not cured within 10 days after written notice thereof.
24. If Advertiser breaches any policy on three separate occasions after having received notice of such breach, then Health24 (Pty) Ltd may terminate the IO associated with such breach upon written notice even if such breach has been cured by Advertiser.
25. Health24 (Pty) Ltd sole liability to Advertise for any non-delivery of any Deliverables in respect of any Ad or IO shall be to provide Advertiser with a credit equal to the value of the under-delivered portion of the IO. Alternatively, an agreement may be reached with Advertiser to extend the campaign end date in order for the full number of impressions booked to be served.
26. Health24 (Pty) Ltd shall allow for a maximum 10% delivery discrepancy and where it is deemed warranted in Health24 (Pty) Ltd sole discretion, Health24 (Pty) Ltd shall deliver bonus impressions, to a maximum of 10% of the originally booked number of impressions. No bonus or discrepancy allowances will be applicable to any CPD or sponsorship campaigns whatsoever.
27. Save for payment obligations, neither party shall be liable for delay or default in the performance of its obligations to the other party if such delay or default is caused by conditions beyond its reasonable control not occasioned by its fault or negligence or breach of any obligation arising in terms hereof. An affected party’s obligations shall be suspended for the duration of the a foregoing circumstances. If those circumstances persist for longer than one month then the other party may cancel the relevant IO.
28. Advertiser shall procure that all Ads shall comply with Health24 (Pty) Ltd policies, criteria and specifications from time to time including as to content, technical specifications, privacy, user experience, public image, obscenity and indecency. Health24 (Pty) Ltd may remove any Ads that Health24 (Pty) Ltd determines as non-compliant, or as Health24 (Pty) Ltd is instructed to remove by the publishers it represents, within their sole discretion. Such removal shall constitute an immediate cancellation of such IO with no further obligations owing by either party to each other.
Health24 (Pty) Ltd reserves the right to decline an IO within its sole discretion and there shall be no requirement on Health24 (Pty) Ltd to submit details and the reason for such decline.
29. Advertiser grants to Health24 (Pty) Ltd a worldwide, royalty free license to use the Ads and any logo, trade name, trade mark, brand name, logo or domain name associated therewith for the purposes of fulfilling its obligations in respect of any IO.
30. Advertiser hereby warrants to Health24 (Pty) Ltd that it is, and at all relevant times shall be, the lawful owner or duly licensed user of the copyright in, and all other intellectual property rights relating to, the Ads and all the material and content provided by Advertiser to Health24 (Pty) Ltd for the purposes of the IO. 31) Each party (“the indemnifying party”) indemnifies and holds the other party (“the other party”) harmless against any claims or liability or damages arising on the part of the other party from any breach by the indemnifying party of any obligation imposed on it in any IO, these T&C’s or in law.
32. If notwithstanding any of the a foregoing, Health24 (Pty) Ltd is found to be liable to Advertiser for any amount or claim hereunder, such liability shall never exceed the lesser of the amount that Advertiser paid to Health24 (Pty) Ltd in the 3 months immediately preceding the date the liability arose or the proceeds available from any insurance procured by Health24 (Pty) Ltd in relation thereto (if any).
33. In no event shall either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of these T&C’s or any IO.
34) The parties shall treat all information, in whatever form and howsoever recorded, that may reasonably be argued to have commercial value that a party receives from the other party as a result of this Agreement (“confidential information”), as private and confidential and safeguard it accordingly. The parties furthermore agree not to use or disclose or divulge or copy or reproduce or publish or circulate or reverse engineer and/or decompile or otherwise transfer, whether directly or indirectly, any confidential information to any other person and shall take all such steps as may be reasonably required to prevent confidential information falling into the hands of unauthorized persons.
35. Although Health24 (Pty) Ltd affords Advertisers the ability to utilize third party delivery platforms and technologies, Health24 (Pty) Ltd reserves the right to decline those platforms and/or technologies it deems (in its sole discretion) to have a negative impact on Health24 (Pty) Ltd trading, delivery and/or functionality. Health24 (Pty) Ltd shall notify Advertiser in writing of its election to decline such third party delivery platforms and technologies and any affected IO will be cancelled with immediate effect and no further obligations shall be owed by either party to the other from the time of the aforesaid cancellation. 36) Each party warrants to the other party that it has the expertise, experience and required licenses and permissions to fulfill its obligations in terms of these T&C’s and any IO.
37. Advertiser may not resell, assign or transfer any of its rights or obligations hereunder.
38. All terms and provisions of these T&C’s and each IO shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. 39) These T&C’s and the relevant IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. 40) An IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
41. The laws of the Republic of South Africa shall apply to any IO and to these T&C’s.
42. Any claims, legal proceeding or litigation arising in connection with any IO or these T&C’s) shall be subject solely to the jurisdiction of the courts of the Republic of South Africa.
43. No modification of these T&C’s or any IO shall be binding unless in writing and signed by both parties.
44. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
45. Each party chooses as its domicilium the address set out in the relevant IO.
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