VIACOM INTERNATIONAL MEDIA NETWORKS AFRICA
General Terms & Conditions For Booking and Acceptance of On-Air Advertisements
1. In these conditions “Advertisement Copy / Advertisement” means any advertising material supplied by or on behalf of a Client or Agency, as the case may be, in the form intended for transmission on the, Channel(s); “Affiliate” means, in relation to any party, its parent(s)/partners and ultimate holding companies and all of their respective officers, subsidiaries, affiliates, directors, agents, independent contractors, personnel and shareholders, but in the case of ; “Agency” means a person, firm or company engaged to select and purchase advertising time for persons wishing to advertise and includes its successors in title and assigns; “Booking(s)” means all booking(s) of Advertisement(s); “Channel(s)” means the programming service(s) owned and/or controlled by VIMNA or its Affiliates, or a third party channel owner for whom VIMNA acts as duly authorised representative, and as detailed in the Sales Order Form; “Client” means a person, firm or company wishing to advertise products and/or services on Channel(s) otherwise than through an Agency and includes its successors in title and assigns; “Contracting Party” means the Client and/or the Agency, as the case may be, which signs the Sales Order Form; “VIMNA” means Viacom International Media Networks Africa (Pty) Ltd of 1 Saxon Road Hyde Park, Johannesburg, South Africa; “Inserter” shall mean the company responsible for inserting and scheduling the Advertisement Copy on the Channel(s); “Sales Order Form” means an advertising sales order confirmation form supplied by VIMNA attached hereto; “Start Date” means the date of the broadcast of the first Advertising spot specified in the appropriate box on the signed Sales Order Form.
2. These Terms and Conditions shall govern the relationship between VIMNA and the Contracting Party pursuant to each Sales Order Form, and shall take precedence over any other terms and conditions purported to govern the relationship between the parties relating to the booking and broadcast the advertisements on the Channel(s).
3. VIMNA agrees, subject to the provisions of these Terms & Conditions, to broadcast the advertisements on the Channel(s) as set out on the Sales Order Form signed by the Contracting Party.
4. An Agency that makes Booking(s) shall be deemed to contract with VIMNA as principal in all respects, and shall be solely responsible for the performance (including without limitation payment of all amounts due to VIMNA hereunder) of the Contracting Party’s obligations under these Terms and Conditions, the Booking and the Sales Order Form.
5. VIMNA shall use all reasonable endeavours to transmit any advertisement in accordance with Contracting Party’s notified preferences and in particular to transmit advertisements booked for transmission within thirty (30) minutes of the specified preferred timeslot, however VIMNA does not guarantee the times and dates of transmission and where Advertisements are not broadcast on dates and times booked and scheduled then VIMNA will endeavour to offer an alternative transmission date and time that is suitable to the Contracting Party. Where the Contracting Party requires a change to the scheduled spot VIMNA shall endeavour to accommodate such change provided the Contracting party gives VIMNA at least fifteen (15) days’ notice prior to the original booked transmission time and provided Contracting Party agrees to pay any additional charges occasioned as a result of such re-schedule. Where the Contracting Party gives VIMNA less than fifteen (15) days’ prior written notice requesting a change to the original schedule booked, then VIMNA shall endeavour to accommodate the Contracting Party but where it is unable to do so the Advertisement Copy shall be transmitted as originally ordered and the Contracting Party shall be charged for the full amount.
6. VIMNA retains the right, in its own respect and on behalf of third party channel owners, to make changes to scheduled programming on the Channel(s), in its/their discretion. Where such changes will be significant to the Contracting Party in either rating or audience profile then VIMNA and the Contracting Party may renegotiate in good faith the affected slots and rates booked around such rescheduled programmes.
7. The Contracting Party shall ensure the Advertisement Copy is delivered to the VIMNA ftp site (or by such other delivery method advised by VIMNA) at least seven (7) working days before the intended transmission date: All Advertisement Copies shall comply with the VIMNA’s technical specification for Advertisements. The Contracting Party shall be solely responsible for the production and delivery of any such Advertisement Copy and for all costs in relation thereto. While every reasonable care will be taken in respect of the Advertising Copy, VIMNA shall not accept liability for any delay in delivery, loss or damage thereof whether in VIMNA’s or the Inserter’s control or in transit. All risk in the Advertising Copy and the transmission of the Advertisement shall vest with the Contracting Party and VIMNA is indemnified from any claims arising from third parties with respect thereto.
8. VIMNA may in exceptional cases and at its own discretion accept Booking(s) and Advertisement Copy on shorter notice than required above. Such acceptance(s) shall not impose any obligation whatsoever on VIMNA to accept any other Booking(s) or Advertisement Copy on less notice than required above.
9. Advertisements will only be transmitted on the Channel(s) if they comply with the Advertising Regulatory Board of South Africa’s (“ARB”) (previously the Advertising Standards Authority) Code and have complied with VIMNA’s technical specification for Advertisements. The Contacting Party agrees that it shall bear the onus of ensuring that the Advertising Copy is fully cleared for broadcast on the Channel(s), does not infringe any law, including but not limited to laws pertaining to intellectual property, privacy, personal rights, rights of performers, image rights, and/or music rights, and complies with all relevant legislation, regulation (including but not limited to the ARB Codes) and is suitable for transmission in the intended timeslots. VIMNA reserves the right in its sole discretion to decline to transmit any advertisement and to restrict any repeat transmissions of the same advertisement.
10. If VIMNA decides in its absolute discretion that the Advertisement Copy is unsuitable for transmission on the Channel(s) for any reason, VIMNA shall as soon as practicable notify the Contracting Party providing the Contracting Party with guidelines as to how such Advertisement Copy can be edited so as to be acceptable to VIMNA. The Contracting Party shall then at its own cost supply alternative Advertisement Copy as soon as possible but not less than five (5) days before intended transmission. If the alternative Advertisement Copy is not supplied timeously or is not accepted by VIMNA because in VIMNA’s view it does not comply with the requirements of the ARB or any other relevant authority, the Contracting Party shall pay VIMNA the full amount which would have been payable had the Advertisement Copy been transmitted.
11. The Contracting Party hereby grants to VIMNA the right in VIMNA’s absolute discretion and without incurring liability to do any act or thing in respect of the transmission of any Advertisement Copy or part thereof (including fading, editing, cutting or non-transmission) in order to make it suitable for transmission on Channel(s). In the event that VIMNA exercises its right under this Clause VIMNA shall not incur any liability whatsoever to the Contracting Party (including, but not limited to, consequential loss which shall mean, without limitation, loss of profits, revenue and/or goodwill) and the Contracting Party shall pay to VIMNA such reasonable costs and expenses as it has incurred in addition to the full amount agreed for transmission of the Advertisement Copy.
12. Unless otherwise agreed, at the end of each month VIMNA shall invoice the Contracting Party at the billing address specified on the Sales Order Form for transmissions of Advertisements and for cancellations made by the Contracting Party during that month at the rates set out on the Sales Order Form.
13. Unless otherwise agreed, the Contracting Party shall pay all invoices within forty-five (45) calendar days of the date of the invoice.
14. Unless otherwise specifically agreed or stated in the Sales Order Form all Advertisement Bookings are accepted on the understanding that they will be paid at the rate actually in force at the date of transmission and will be subject to a standard handling fee. VIMNA reserves its right to change its advertising rates and these terms and conditions on notice to the Contracting Party.
15. The Contracting Party shall pay interest on any late payment from the due date until the date of payment forthwith on demand. Such interest shall be calculated on a daily basis at a rate per annum equal to four percent (4%) above the Citibank South Africa base rate from time to time, subject to maximum interest charges prescribed by prevailing legislation at the relevant time. Where a Contracting Party has failed to make payment on due date or at all VIMNA reserves the right to refuse further transmissions of the Advertisement and/or not to accept further bookings from the Contracting Party.
16. Any queries on invoices or statements shall be in writing addressed to VIMNA Finance Department and shall be made within seven (7) working days of receipt of relevant invoice or statement failing which such invoice or statement shall be deemed accepted accurate and correct.
17. The Contracting Party warrants and undertakes that:-
(i) all necessary licences and consents for transmission of any Advertisement Copy on the Channel(s) in those country(s) in which the Channel(s) is/are transmitted have been obtained and, where applicable, paid for including (but not limited to) copyright in the Advertisement Copy (including, but not limited to, any visual and/or audio-visual content and/or music therein) and/or for the appearance of any person in the Advertisement Copy;
(ii) no Advertisement Copy intended for transmission will be defamatory of any third party or obscene or expose VIMNA, its Affiliates, or any third party Channel owner, to civil or criminal proceedings of any kind;
(iii) nothing contained in the Advertisement Copy might make its transmission on Channel(s) illegal or actionable, or is in breach of the rights of third parties (including but not limited to intellectual property rights), or is in breach of the requirements of the ARB’s Code or any other relevant authority, or of any applicable laws, regulations, rules and/or requirements in country(s) in which such Advertisement Copy will be transmitted on the Channel(s), for any reason;
(iv) it will not, without VIMNA’s prior written consent, publish any information in connection with any Advertisement booked by it which has been transmitted or is scheduled for transmission on Channel(s);
(v) it will fully indemnify and keep VIMNA, its Affiliates, and/or any third party Channel owner indemnified against all actions, proceedings, costs, damages, expenses, penalties, claims, demands and liabilities arising from any breach or threatened breach of any of the obligations and/or warranties given by the Contracting Party in accordance with these Terms and Conditions and/or arising from the Advertisement Copy in any manner.
18. All notices and documents to be given or supplied shall be in writing and delivered to the address given above for VIMNA and to the billing address given on the Sales Order Form for the Contracting Party and shall be duly given or supplied if delivered personally or sent by recorded delivery, post or by email (provided a successful delivery receipt and/or acknowledgement or receipt has been received).
19. VIMNA shall be entitled to postpone the transmission of any Advertisement booked by the Contracting Party at any time where:-
(i) it has given not less than fourteen (14) days’ notice to the Contracting Party; or
(ii) its transmission activities are restricted, curtailed or otherwise prevented by any act or thing (including satellite failure) beyond VIMNA’s control; or
(iii) the Contracting Party is in breach of any warranty or other material obligation set out in these Terms and Conditions or any agreements between the Contracting Party and VIMNA to which these Terms and Conditions apply.
20. Any postponement of transmission of any Advertisement(s) in accordance with the above shall not affect any obligation of the Contracting Party to purchase the number of advertising spots agreed between a Contracting Party and VIMNA under any agreement between the parties.
21. Any postponed transmissions of Advertisement(s) shall be rebooked by means of a further Sales Order Form.
22. Neither VIMNA, its Affiliates, or any third party Channel owner, shall incur liability for any failure to transmit all or any part of any Advertisement for any reason, or for any error in the Advertisement transmitted except where such failure or error is due to the gross negligence of VIMNA, in which event VIMNA shall consult with Contracting Party to book an acceptable alternative transmission slot.
23. VIMNA shall be entitled to cancel any Booking(s) without incurring any liability to the Contracting Party where it considers in its absolute discretion that the Advertisement Copy does not comply with the requirements or recommendations of any law, or the ARB codes, or the law or regulations of any other relevant authority, and/or where it has notified the Contracting Party that the Advertisement Copy is unsuitable for transmission on Channel(s).
24. In the event that the Contracting Party wishes to cancel any Booking(s) it shall notify VIMNA in writing at least twenty-one (21) working days prior to intended transmission. Where the Contracting Party’s notice of cancellation is received less than twenty-one (21) working days before intended transmission then one hundred percent (100%) of the total airtime value of cancelled transmission(s) shall be payable to VIMNA. For the avoidance of doubt the Contracting Party shall remain liable for the full payment where Contracting Party purports to cancel any booking other than by giving twenty-one (21) working days’ written notice as set out in this clause.
25. For the avoidance of doubt the total airtime value shall be determined by reference to the cost of transmission(s) of such advertisement(s) agreed between the parties and set out on the relevant Sales Order Form.
26. VIMNA and the Contracting Party (each “the non-defaulting party” as the case may be) shall have the right to terminate any agreement between VIMNA and the Contracting Party to which these Terms and Conditions apply by notice to the other if the other either:
(i) fails to make any payment due to the non-defaulting party by the due date and such failure continues for five (5) calendar days after the due date; or
(ii) is in breach of any warranty or fails to comply with any of its material obligations under any agreement between the parties and/or these Terms and Conditions and in either case does not remedy the same (if capable of being remedied) within ten (10) calendar days of receipt of notice in writing from the non-defaulting party specifying the breach or failure and calling for the same to be remedied
(iii) provided always that for the purposes of this Clause (ii) the Contracting Party hereby agrees that VIMNA shall be deemed to have remedied any failure to transmit any advertising booked by it if VIMNA offers to provide so-called “make goods” (i.e. advertising spots of equivalent value at some other date and time) over a period of time (which may exceed thirty (30) days); or
(iv) compounds or makes arrangements with its creditors or becomes insolvent or if any order is made or resolution passed for its liquidation, winding up or dissolution or if a receiver or manager or administrative receiver or administrator is appointed over the whole or a substantial part of its assets or if anything analogous to or having substantially similar effect to any such events shall occur under the laws of any applicable jurisdiction; or
(v) is unable to perform any of its obligations in circumstances set out below for a continuous period of not less than ninety (90) calendar days.
28. Neither party shall be liable to the other in respect of any non-performance of its obligations by reason of any act of God, civil war or strife, hostilities, act of foreign enemy, invasion, war, satellite failure, legal enactment, governmental order or regulation or any other cause beyond their respective control provided always that in any such event the duration of the agreement between the parties shall be extended by the period for which such event continues but otherwise such an event shall not affect any obligation of the Contracting Party to purchase any number of advertising spots agreed between the Contracting Party and VIMNA.
29. The rights and benefits set out in these Terms and Conditions shall not be assigned by the Contracting Party without VIMNA’s prior written consent.
30. These Terms and Conditions together with any Sales Order Form or other written agreement incorporating these Terms and Conditions shall constitute the entire agreement between the parties in relation to its subject matter. The parties acknowledge and agree that they have not relied on and shall have no right of action in respect of any representation, warranty or promise in relation to such subject matter unless expressly set out in this agreement save where such representation, warranty or promise is made fraudulently.
31. No waiver of any breach of any of these Terms and Conditions shall be deemed to be a waiver of any other breach and no waiver shall be effective unless in writing.
32. These Terms and Conditions and any agreement to which these Terms and Conditions apply shall be interpreted in accordance with the laws of South Africa and the Parties hereby consent and submit to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Division, Pretoria / Gauteng Local Division, Johannesburg) in any dispute arising from or in connection with these Terms and Conditions.