a) In these conditions “Digital Fire” means Spencer Boyd Associates Media PTY /LTD SA Company 2005/032502/07 trading as Digital Fire.
b) “The Materials” means any lists of email addresses and any other information or data or compilations of data supplied by Digital Fire and includes any email lists, documents, labels, computer discs, tapes, print-outs or other items on which such information is set out or in the form in which it is stored, displayed, contained or compiled.
c) “The Buyer” means the party to whom the Materials are supplied by Digital Fire
d) “Supplied” means being made available as the email address to which the buyer’s email will be broadcast by or on behalf of Digital Fire.
2. APPLICATION OF THESE CONDITIONS
a) Any Agreement for the supply or use of the Materials shall be subject to these Conditions and unless otherwise expressly agreed in writing by Digital Fire these conditions override any terms or conditions stipulated incorporated or referred to by the Buyer in his or its order or negotiations.
b) These conditions embody the entire agreement of Digital Fire and the Buyer and accordingly any promises, representations warranties or understandings not expressed herein are not relied on and shall be of no effect.
c) No variation of these Conditions shall be effective against Digital Fire unless expressly agreed in writing and signed by a duly authorized employee of Digital Fire on its behalf.
d) Without prejudice to the aforesaid by signing the insertion order the Buyer indicates that he has read and agreed to these terms and conditions. The Buyer is deemed to acknowledge and accept their application to his or its agreement with Digital Fire and to have assented to these Conditions as the terms on which the Materials are supplied.
a) VAT will be payable upon the price of the Materials whether or not mentioned.
b) 100% of the price along with the VAT on such will be paid by the Buyer upon the placing of the order pre the broadcast date unless the buyer has an approved account facility with Digital Fire in which event invoices for the Materials will become due and payable within 30 days of the invoice date. If the client fails to pay by then the Buyer shall be in breach of this contract and Digital Fire can, at its sole and absolute discretion, elect to cancel the contract whereafter the Buyer shall remain liable for payment of the total amount due and payable to Digital Fire.
c) In the event that payment of the price in full is not made to and received by Digital Fire at the time stipulated above interest on the balance outstanding will become immediately payable at the rate of 2.50% per month or part thereof until such payment is received by Digital Fire.
d) Payments due in terms of this contract may be paid by the client in cash by way of an electronic transfer of funds into Digital Fire’s nominated bank account, by way of credit card, or bank guaranteed cheque.
e) Once the insertion order is signed that is a binding agreement and confirmation by the client that they will pay the full amount of the insertion order and invoice regardless of whether of not they decide to proceed with the broadcast. Full payment is due within three months of the date of the insertion order regardless of broadcast or not, after this period has expired a penalty of 1% of the value of the invoice will be raised every day. This is a condition because we reserve data and broadcast times on our schedule for client A that could be used by client B which we have turned away because of reserved time and data selection for client A.
Digital Fire will broadcast the email as soon as possible following the acceptance of the order from the Buyerand to their required date.
In the event that a date of broadcast is agreed between Digital Fire and the Buyer Digital Fire shall use its reasonable endeavours to ensure that the broadcast occurs on the agreed date. However Digital Fire accepts no responsibility for loss or damage which may result from its failure to broadcast the email on the agreed date.
5. CANCELLATION AND REPOSSESSION OF THE MATERIALS
Digital Fire shall be entitled (without prejudice to such other rights as it may have) to rescind this and any other contract with the Buyer in any of the following events:
i) The Buyer failing to make payment in full or when due in accordance with Clause 3 hereof: or
ii) Any Breach by the Buyer of his or its obligations under Clause 6 or any other Clause hereof: or
iii) A receiver being appointed over the whole or any part of the assets or the undertaking of the Buyer or in the event that a winding-up or administration order is made against the Buyer or the Buyer goes
into liquidation or causes a meeting of or makes any arrangement with his or its creditors or commits any act of bankruptcy.
6. COPYRIGHT AND TITLE
a) Copyright and all other intellectual property rights in the Materials, including any right to prevent extraction and/or re-utilization, shall at all times remain with Digital Fire, and nothing in these Conditions shall constitute a transfer, assignment or license of any copyright or other intellectual property right of Digital Fire. Save as aforesaid and without prejudice to Digital Fire’s retention of copyright and other rights, neither legal nor beneficial title to or property in the Materials shall, notwithstanding delivery, pass to the Buyer except upon payment of the price in full.
7. THE BUYERS’ DATA
The Buyer may supply data to Digital Fire for the purpose of de duplication against the Materials in which event: -
i) The data must be supplied in the approved format as specified by Digital Fire
ii) The data must be supplied and warranted by the Buyer as “Virus Free”
iii) Whilst Digital Fire will take every reasonable precaution to protect the data no responsibility is accepted or its loss or damage.
8. THE BUYER’S OBLIGATIONS
a) The Buyer agrees and warrants that the Materials are purchased for his or its sole use and for the purposes only of use
as a source of reference for the circulation by email of some or all of the names listed in the Materials.
b) The Materials may contain ‘dummy’ email addresses (no more than 1 in 250) for control purposes. These addresses will be unknown to the Buyer. A breach of this Agreement is conclusively proven and damages named hereinafter shall be deemed owed when Digital Fire establishes the following:
c) That Digital Fire placed ‘dummy’ addresses in the Materials; and
d) That the ‘dummy’ addresses received any e mailings sent or generated by the Buyer or with the Buyer’s consent or knowledge outside the scope of this Agreement between the Buyer and Digital Fire.
e) Because the Materials provided by Digital Fire to the Buyer are extremely valuable and completely proprietary, and because the nature of this asset makes an evaluation of any damage after a breach of this Agreement impossible, then in the event the Materials are used or otherwise handled in such a way that constitutes a breach of this Agreement by the Buyer, its agents, or subcontractors, Digital Fire will be entitled to damages of seventy five rand (R75.00) for each name or address supplied irrespective of whether such name and address was used in breach of this Agreement, with the amount of damages not to exceed a million rand (R1,000,000).
f) The Buyer agrees and warrants that any documents or other items emailed by or on behalf of the Buyer as a result of or following his or its purchase of the Materials will contain nothing which infringes copyright or any other right, or will be defamatory, obscene, indecent or otherwise illegal or unlawful and undertakes to indemnify and hold harmless Digital Fire against all damages, losses, costs, charges and expenses of whatever nature arising out of or in connection with any claim that such documents or other items infringe copyright or are defamatory, obscene, indecent or otherwise illegal or unlawful whether or not such claim is justified or upheld. The Buyer in addition undertakes to work within the normally accepted codes of conduct for the advertising industry, including in particular the British Code
of Advertising Practice, The British Code of Sales Promotion Practice and the ICSTIS code as far as is reasonably possible in South Africa.
g) In the event that any recipient of any documents or other items emailed by the Buyer objects to such emailing or requests that it cease or asks for his or its name be to removed from any list, the Buyer shall forthwith inform Digital Fire and provide Digital Fire with particulars of any documents and other items emailed to that Recipient and of the email.
h)The buyer once they have signed the Insertion Order is obligated to pay the invoice total in full within 6 weeks from the Insertion Order date regardless of the campaign being broadcast or not, unless agreed in writing by Thomas Boyd Managing Director of Spencer Boyd Associates PTY/LTD Consultancy.
9. EMAILING PIECES
a) The Buyer will ensure that any use to which the Materials are put complies with the current Codes of Practice of the appropriate supervisory Bodies which are current in the law. In the UK these current codes are as follows:
i) The British Code of Advertising Practice (BCAP)
ii) The British Code of Sales Promotion Practice (BCSPP)
iii) The Code of Practice of the Independent Committee for Standards of Telephone Information Services (ICSTIS).
b) The Buyer will submit to Digital Fire the proposed email communication at least 3 (three) working days before the day on which the broadcast is required Digital Fire, where necessary, submit the mail pieces or other items to the Bodies responsible for administering the Codes of Practice for their advice and or guidance as to compliance with the Codes. The decision of those Bodies shall be accepted by Digital Fire and the Buyer and no claim shall be made for damage or consequential loss as a result of their decision.
10. LIMITATION OF DIGITAL FIRE’S LIABILITY
a) Digital Fire neither warrants nor undertakes nor represents nor is it a term or condition of any sale or agreement for any supply of the Materials that the Materials are accurate or complete or that any information contained therein is accurate or complete and (except for any liability for death or personal injury resulting from the negligence of Digital Fire or that of its servants or agents, or in relation to any other liability which may not by applicable law be excluded or limited) Digital Fire shall not be liable for any damages, losses, costs, charges or expenses of whatever nature (even if Digital Fire has been advised of the possibility of such damages), including any indirect or consequential loss or damage howsoever arising and including loss of profits, loss of sales, loss of turnover, loss of bargain, loss of opportunity or damage or corruption to or loss of use of computer equipment, software or data or loss of time on the part of management or other staff, caused by, arising out of or in any way connected with any such inaccuracy or omission.
b) Without prejudice to the aforesaid any liability of Digital Fire in respect of any claims of whatever nature arising out of or in any way connected with the Materials or their sale, supply or use or in respect of any breach by Digital Fire of any obligation or duty pertaining to the Materials or to their supply or use (including any other liability of Digital Fire for negligence or breach of copyright) shall not in any circumstances whatsoever exceed in total the contract price of the Materials or R200,000 Rand
whichever is the greater, unless separately agreed in writing by the Buyer and Digital Fire, following prior written notice by the Buyer to Digital Fire of a request for increased liability and on terms to be agreed.
11. GOVERNING LAW
These conditions and any questions, disputes or other matters relating to them or any contract made subject to them shall be governed by and determined in accordance with the laws of South Africa and the parties accept the jurisdiction of the South African courts.
No cancellations will be accepted after a signed insertion order has been received by Digital Fire, and full payment is expected to be made by the client, (see section 3. clause d under Payment) unless agreed in writing by Thomas Boyd .M.D. In the event that Digital Fire accepts cancellation of an insertion order any direct costs incurred prior to cancellation will be payable by the client.
a) This agreement constitutes the sole and exclusive agreement between the parties. The client acknowledges that no other warranties, representations written or verbal, have been made that are not reflected herein.
b)Both parties submit to the sole jurisdiction of the Cape High Court in the Republic of South Africa in the event that any disagreement should arise out of or in connection with this contract and the parties agree that this agreement shall be governed by and interpreted and construed in accordance with the law of the Republic of South Africa
c) Should Digital Fire incur any legal costs in the collection of any amounts due by the client to Digital Fire in terms of this contract, the client shall pay such costs on an attorney and own client scale.
d) If any period if referred to in this agreement by way of a reference to a number of days, the days shall be normal days and shall be reckoned exclusively of the first and inclusively of the last day, unless the last day falls on a day which is not a business day, in which case the day shall be the next succeeding business day.
e) This agreement constitutes the whole agreement between the parties as to the subject matter hereof and no agreements, representations or warranties between the parties regarding the subject matter hereof other than those set out herein are binding on the parties.
f)No addition to or variation, consensual cancellation or novation of this agreement and no waiver of any right arising from this agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the parties or their duly authorised representatives.
g)The person who signs for the client represents that he or she has authority to make this contract on behalf of the client.
A copy of these terms and conditions has been witnesses and can be obtained at Themis Law, 32 Roeland Square Cape Town, South Africa. Contact Jeanelize Martiz.