Terms & Conditions for Advertising with Entrepreneur and / or ThinkSales
In these Terms and Conditions the following words shall have the following meanings:-
1.1. “the / this Agreement” means the order or booking form in terms of which the customer makes an order or booking for the placement of advertisement(s) in the Company’s magazine and or website and or enewsletters and to which these terms and conditions are annexed.
1.2. “the Company” means Entrepreneur Media SA (Pty) Ltd, Registration Number 2005/009255/07, and includes any of its associated businesses and subsidiaries or holding company from time to time, if any.
1.3. “the Customer” means natural or juristic persons for whom or on whose behalf or on whose instructions the company places advertisements in its magazine and or website and or enewsletters, or renders services in connection therewith.
1.4. “Contract Customer” means a Customer who has placed orders or bookings in two or more issues of the magazine and or website and or enewsletters.
1.5. “Contract Price” means the aggregate of the charges and fees set out in the agreement or the Company’s invoice or statement.
1.6. “the magazine and or website and or enewsletters” means Entrepreneur Magazine (and supplements or sister publication ThinkSales Magazine) and Website and enewsletters.
1.7. “Date Schedule” means the schedule provided by the Company setting out all the relevant dates relating to deadlines and / or publishing dates, including the fixed closing dates.
1.8. “fixed closing date(s)” means the dates specified in the Date Schedule from time to time relating specifically to Customer deadlines.
1.9. “Parties” means the Company and the Customer jointly.
1.10. “services” means any and all services that may be supplied by the Company to the Customer from time to time.
1.11. “Signatory” means the person who appends his signature hereto.
1.12. “the rates” means those fees and charges set out in the Rates Schedule from time to time.
1.13. “the Rates Schedule” means the schedule provided by the company setting out all the relevant fees and charges relating to the placement of advertisements in the Magazine.
1. Overriding Effect of Terms and Conditions
Unless otherwise specifically agreed, all existing and future business conducted by the Company shall be on the terms and conditions set out herein and on any further terms and conditions as may appear in the Agreement, and no other terms or conditions, whether contained in the Customers documentation or otherwise, shall be binding on the Company.
2.1. All orders must be placed with the Company in writing, although the Company reserves the right, in its sole discretion, to accept oral orders.
2.2. The Company’s acceptance of the order, which need not be in writing, is subject to, inter alia, the availability of space, the material, the subject matter and any relevant policy considerations.
2.3. The Company reserves the right, it its sole discretion, to decline the client’s application for an order or booking and without stating any reasons thereto.
2.4. No binding contract shall arise between the Customer and the Company until the Customers order has been accepted and confirmed by the Company
2.5. Orders or bookings that have been accepted by the company may not be cancelled, varied or withdrawn by the client after the fixed closing dates unless the Company, in its sole discretion, agrees thereto in writing.
2.6. Where the Company does so agree in writing to the variation, cancellation or withdrawal of any order or booking after the fixed closing dates have lapsed, the client shall be liable to pay to the company a cancellation fee calculated at 50% of the contract price, and shall, in addition thereto, reimburse the company in full for all loss, costs, damages and expenses incurred by the Company as a result of the cancellation.
2.7. It shall be the sole responsibility of the Customer to provide the Company with all the necessary advertising materials and to ensure the accuracy of all specifications, artwork, logos and other details in relation to the material. The Company shall not be held responsible for any errors or defects contained in such materials and which may manifest itself in the advertisement.
2.8. The client shall, on demand, furnish the Company with a copy for completion.
2.9. Notwithstanding 2.7 and 2.8 above, all material and copy is subject to approval by the Magazine’s Publishers.
2.10. The onus shall be on the Customer to ensure that any proofs furnished to it are correct and that any errors and / or defects are notified to the Company in writing. Should the Customer fail to do so, the Customer shall bear the risk of any error and / or defect in this regard.
2.11. In the event that the Company fails to furnish the Customer with a proof and / or fails to furnish the Customer with a proof timeously the Company shall not be held liable for any errors and / or defects in connection therewith.
2.12. The Customer acknowledges and accepts that where the Customer fails to submit any new material prior to the fixed closing date for any order or booking, the Company shall be entitled to submit the copy provided by the Customer in a previous order or booking.
2.13 The Customer acknowledges and accepts that:-
2.13.1. Orders or bookings specifying special and / or right hand and / or left hand positions or placements in the magazine and or website and or enewsletters cannot be guaranteed;
2.13.2. Orders or bookings that are subject to the condition that “write-up” space be devoted to the Customer shall not be accepted by the Company.
2.14. The Company reserves the right, in its sole discretion, to cancel or withhold the Customer’s order or booking, even if such order or booking has been accepted by the Company.
3.1. The Company shall use its best endeavours to ensure that:-
3.1.1. The advert is published and distributed timeously via magazine and or website and or enewsletters;
3.1.2. The Customer’s advertisement(s) will be placed and displayed correctly in the magazine and or website and or enewsletters;
3.1.3. The Customer’s advertisement(s) are accurate and free from any typographical errors or any other defects.
3.2. Notwithstanding the aforesaid, the Customer shall not be entitled to cancel this Agreement nor have any claims against the Company of whatsoever nature for any delays in the publishing and / or distribution of the magazine and or website and or enewsletters, for any failure to comply with specified placing and / or displaying of the advertisement, and / or for any typographical errors or any other defects contained in the advertisement.
4. Contract Price
4.1. The Customer acknowledges that the Contract Price shall be the aggregate of the charges and fees set out in the Agreement or the Company’s invoice or statement.
4.2. The Parties agree that the Contract Price shall be determined in accordance with the Company’s rates as specified in the Rates Schedule from time to time;
4.3. The Company reserves the right to increase its rates at any time;
4.4. If and when the Company increases its rates, Contract Customer’s shall be afforded the following protection: The rates applicable at the time of this Agreement shall remain applicable for a period of 60 (sixty) days calculated from the day after the date that the rates are changed. Thereafter the new rates shall be applicable to the balance of the Customer’s orders or bookings.
4.5. The Contract Price shall exclude VAT which the Customer shall be liable to pay to the Company in addition to the Contract Price.
5.1. The Company provides no representations, warranties, guarantees or undertakings to the Customer, whether express, tacit or implied.
5.2. It is the sole responsibility of the Customer to establish that the magazine and or website and or enewsletters is suitable for its purposes and accordingly the Company does not warrant or guarantee that the Customer will benefit from the placement of any advertisement in the magazine and or website and or enewsletters.
6. Credit Facilities
6.1. The Company shall be under no obligation to extend any credit facilities to the Customer and no such facilities shall be extended unless done so specifically by the Company in writing.
6.2. The nature and extent of such facilities shall at all times be in the Company’s sole discretion and the Company reserves the right to amend, vary, suspend or withdraw such facilities at any time.
6.3. The Customer warrants that all information furnished to the Company in any application for credit facilities or otherwise is true and correct.
6.4. The Customer agrees that the information provided by it to the Company may be utilised by the Company to assess its credit worthiness.
6.5. The Customer consents to the Company contacting third parties, including, without limitation, any credit bureau, requesting information pertaining to the credit worthiness of the Customer.
6.6. The Customer consents to the Company furnishing information concerning the Customer’s purchasing and payment record with the Company, to any third party including, without limitation, any credit bureau.
7.1. Unless the Customer has been granted credit facilities, invoices are payable in full on the date of presentation thereof.
7.2. Where a credit facility has been granted by the Company, payment shall be made in full within 30 (thirty) days from date of invoice. In the event that the Customer is a registered advertising agency, then payment shall be made in full within 45 (forty five) days from date of invoice.
7.3. The Company reserves the right to request payment of a deposit in its sole discretion in respect of the Contract Price upon acceptance of the order and in such event shall be under no obligation to proceed with the order until such time as the deposit has been paid in full.
7.4. The contents of any statement of account rendered by the Company shall be deemed to be true and correct, unless disputed by the Customer in writing within 15 (fifteen) days after the date of statement, provided however that the Company shall be entitled, but not obliged, to vary or alter same in its sole discretion.
7.5. All accounts shall be payable by the Customer to the Company in full without deduction or set-off whatsoever or however arising, including, any claim or counterclaim which it might allege.
7.6. Should any account not be paid on due date, all monies owing by the Customer to the Company shall immediately become due and payable, irrespective of the date when the statements are provided.
7.7. The Company shall be entitled, but not obliged, without prejudice to any of its other rights, to levy and recover from the Customer, interest on all outstanding amounts at the compound rate of 2% above the prime lending rate of the Company’s Bank from time to time, calculated and debited monthly in arrears, alternatively, at the maximum permissible rate in terms of the National Credit Act, Act 15 of 2005, in the event that the maximum permissible rate is higher.
7.8. Notwithstanding any prior dealings between the parties, should the Customer elect to make payment through any intermediary or service including, without limitation, the postal service, the Customer does so at its own risk and the responsibility of ensuring that the Company actually receives the payment is that of the Customer.
7.9. Unless specifically agreed to by the Company in writing, the Company does not provide any early settlement discount. Should the Company agree to such a discount in writing, such discount shall be forfeited should payment not be made in full on due date.
7.10. The Company may appropriate all payments made by the Customer to such account as it shall, in its sole and absolute discretion, decide.
Should the Customer fail to make any payment to the Company under this contract or should the customer be in breach of any of the terms and conditions herein, and fail to remedy such breach within 7 (seven) days after receiving written demand, the Company, without prejudice to any of its other rights in law, shall be entitled to cancel the contract forthwith and to claim damages.
9. Legal Dispute
9.1. A certificate under the hand of any director or manager of the Company in respect of any indebtedness of the Customer to the Company or in respect of any other fact, matter or thing, shall be prima facie evidence of the Customer’s indebtedness to the Company.
9.2. It shall be assumed that the Signatory has been duly authorised to append his signature to this Agreement for and / or on behalf of the Customer, and the onus shall rest on the Customer to prove otherwise.
9.3. In the event of the Company taking legal action against the Customer due to a breach by the Customer of its obligations to the Company including, without limitation, its failure to pay any amount, the Customer shall be liable for all legal costs incurred by the Company on the scale as between attorney and own client including, without limitation, collection fees, tracing agents fees and fees of counsel on brief.
9.4. The Parties consent to the jurisdiction of the Magistrate’s Court in respect of any cause of action which may arise out of this contract, notwithstanding that the amount of the claim or the nature of the relief sought exceeds the Magistrate’s Courts jurisdiction.
9.5. Notwithstanding 9.3 above, the Company reserves the right, and in its discretion, to institute proceedings in the appropriate division of the High Court of South Africa.
10. Force Majeure (Act of God)
No failure by the Company to perform any of its obligations shall constitute a breach of such obligations nor give rise to any claim or remedy by the customer in the event that such failure arose as a result of force majeure, including acts of God, war, revolution, riot, civil unrest, strikes or other labour action, sanctions, natural disasters, changes in law, regulations, ordinances or the like or as a result of any other circumstance wholly beyond its control.
11.1. The Company will not, under any circumstances, be liable for any indirect or consequential loss arising from a failure to perform any of its obligations, whether arising in contract or delict and whether resulting from any negligent act, omission or otherwise.
11.2. Notwithstanding the Company’s acceptance and / or approval of the Customer’s order or booking, the Customer indemnifies the Company against and shall itself be held liable, for all costs and damages arising from any action that may be instituted against the Company by reason of the publication of the Customer’s advertisement.
11.3. In addition to the Contract Price, the Customer shall be liable to pay for all costs or increases resulting from any act or omission of the Customer including, without limitation, suspension of performance, modification of requirements, failure or delay in giving particulars requisite to enable bookings to proceed on schedule.
11.4. The Company shall not be liable to the Customer or Agency for any delays in the production or distribution of the magazine and or website and or enewsletters in which the advert is the be displayed, if caused in whole or part by acts of God, governmental or quasi-governmental entities, fires, floods, labour or material shortages, transportation or any interruptions of any kind, systems or technological failures or crashes or outages or any kind for whatever reason affecting the Company’s magazine and or website and or enewsletters or any other event that is beyond reasonable control.
Ownership in and of the marks “Entrepreneur Magazine” and “Lets do Business” and all other marks owned and or utilised by the Company in connection with the Magazine shall remain vested in the Company at all times.
13.1. The Customer chooses as its domicilium citandi et executandi for all purposes arising out of its dealings with the Company, the physical address and facsimile as recorded by the Customer on the agreement attached hereto.
13.2. Any communication addressed by Company to the Customer and sent by ordinary and / or registered post will be deemed to have been duly received and effectively communicated to the customer on the 10th day following the date of posting thereof.
13.3. Any communication addressed by Company to the Customer and sent by Facsimile will be deemed to have been duly received and effectively communicated to the customer within 12 (twelve) hours after proof of transmission thereof.
13.4. The Customer shall be obliged to timeously notify the company in writing whenever there is a change to the customer’s physical address(es), delivery address(es), postal address(es), e-mail address(es), bank account(s) and the like and before all or any part of its business or its major assets are disposed of to a third party.
14. Non Variation
No, amendment, alteration, variation, deletion or addition of any of these terms and conditions shall be binding upon the company unless it is in writing and signed by an officer of the Company duly authorised thereto.
No latitude, indulgence or extension of time granted by the Company to the Customer shall in any way prejudice the rights of the Company nor be construed as a waiver of the Company’s rights.
Each of these conditions shall be considered to be a separate provision, distinct from the others. In the event of any of these conditions being found to be illegal, invalid, prohibited or unenforceable, such conditions shall be ineffective only to the extent of that illegality, invalidity, prohibition or unenforceability and the remaining conditions shall remain of full force and effect.
17. Applicable Law
These conditions and any contract to which these conditions are annexed or attached or incorporated by reference, shall be governed by, and interpreted in accordance with, the laws of the Republic of South Africa, notwithstanding the place of conclusion hereof or the residence or domicilium of the parties.
Intellectual property rights include (without limitation) any and all rights, titles and interest in and to (whether registered or not) any intellectual property, copyright, related rights, patents, utility models, trade marks, trade names, service marks, designs, know-hows, trade secrets and inventions (whether patentable or not) goodwill, source code, meta tags, databases, text, content, graphics, icons, and hyperlinks and all other identical or similar intellectual property as may exist anywhere in the world and any applications for registration of such rights which are all as such protected by domestic and international legislation and treaties from infringement shall be protected and adhered to by the Client. No material may breach such intellectual property rights.
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