ADVERTISING TERMS & CONDITIONS

These Standard Terms and Conditions ("these Terms") govern and regulate the legal relationship between the party described on the Site Insertion Order ("SIO") to which this document relates, and hereinafter referred to as the "Client" or the "Advertiser" (including if such party is acting as agent for a third party), and BusinessPortal-SE in respect of rendering of advertisements (constituted of such text, graphics, image, content or any other marketing or promotional material provided by the client to BusinessPortal-SE from time to time, pursuant to an SIO) on the BusinessPortal-SE website (being the websites owned and/or operated by BusinessPortal-SE and/or by any Affiliate {as defined below}).

An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party/ies. Further, an Affiliate means, with respect to BusinessPortal-SE, any third party with whom BusinessPortal-SE has entered into an agreement relating in any manner to the website/s owned and/or operated by such third party (including where such agreements are for the placement of advertisements thereon) ("the Site").

These Terms shall be read with the SIO to which they relate and in the event of a conflict between these Terms and the SIO, the SIO will take precedence but solely to the extent of such conflict.

Interpretation of Terms:

Words imparting the singular shall include the plural and vice versa, words imparting a specific gender shall include the other gender and words imparting persons shall include partnerships, bodies corporate, close corporations and companies duly registered as such within the Republic of South Africa.
"Client" or "Advertiser" refers to the party identified in the SIO requesting the advertisement.
The head notes to the paragraphs to these Terms are inserted for reference purposes only.
If any provision in the aforementioned definitions and/or the preamble hereto is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that such provision is only contained in this clause, effect shall be given thereto as if such provision was incorporated in the body of the agreement.
Where a period consisting of a number of days is prescribed, it shall be determined by excluding the first and including the last day.
Where the day upon or by which any act is required to be performed is not a recognised business day (including a Saturday, Sunday or officially recognised public holiday in the Republic of South Africa), the parties shall be deemed to have intended such act to be performed upon or by the first business day thereafter.
If figures are referred to in numerals and words, the words shall prevail in the event of any conflict between the two.
Words and/or expressions defined in any particular clause in the body of these Terms shall, unless the application of such word and/or expression is specifically limited to that clause, bear the meaning so assigned to it throughout these Terms.
The contra proferentem rule shall not apply and accordingly none of the provisions hereof shall be construed against or interpreted to the disadvantage of the party responsible for the drafting or preparation of such provision.
The eiusdem generis rule shall not apply and whenever a provision is followed by the word "including" and specific examples, such examples shall not be construed so as to limit the ambit of the provision concerned.
Reference to any statutory enactment shall be construed as a reference to that enactment as at the effective date, amendment and or re-enactment thereafter.

1. SITE INSERTION ORDER AND INVENTORY AVAILABILITY

From time to time, the parties may negotiate SIOs, pursuant to which BusinessPortal-SE will render the advertisement on its Site for the benefit of the client. At the client's discretion, a SIO may either be submitted by the client to BusinessPortal-SE or be submitted by BusinessPortal-SE in the form of an invoice, signed by the client and returned to BusinessPortal-SE. In either case, a SIO will be binding only if accepted as provided in Clause 1.2 below. SIOs shall specify:

written authorisation to display an advertisement or to broadcast a commercial;
a date upon which the advertisement is to be displayed on the BusinessPortal-SE site;
the duration of the campaign;
advertisement size and advertisement placement, the type(s) of inventory to be delivered, impressions or other desired actions (hereinafter referred to as the "Deliverables");
the price(s) for such Deliverables. Other items that may be stipulated on the SIO are, but are not limited to: reporting requirements such as impressions or other performance criteria; and specifications concerning ownership of data collected.

BusinessPortal-SE will make commercially reasonable efforts to notify the client within 2 business days of receipt of an SIO signed by the Client if BusinessPortal-SE is in a position to comply with the Deliverables. Acceptance of the SIO and these Terms will be made upon the earlier of:

written (which, unless otherwise specified, for purposes of these Terms shall include paper, fax, or email communication) approval of the SIO by BusinessPortal-SE and the Client; or
the display of the first advertisement impression by BusinessPortal-SE pursuant to the SIO, unless the means of acceptance of the SIO is otherwise stipulated in the SIO. Notwithstanding the foregoing, modifications to the originally submitted SIO will not be binding unless signed by both parties.

Revisions to accepted SIOs shall be made in writing and acknowledged by the other party in writing for such SIO to take effect and be binding to both parties.

2. ADVERTISEMENT PLACEMENT AND POSITIONING

BusinessPortal-SE shall comply with the SIO in all material respects, including all advertisement placement restrictions, requirements to create a reasonably balanced delivery schedule, and shall perform within the scope of the SIO, an advertisement to the Site specified on the SIO when such Site is called up by an Internet user. Where BusinessPortal-SE deviates from the SIO, it shall do so only with the prior written approval of the Client, provided that where BusinessPortal-SE is unable to obtain the approval of the Client to any SIO (having used its reasonable commercial endeavours to do so), BusinessPortal-SE may deviate from the SIO in such a manner and to such an extent as BusinessPortal-SE, acting reasonably, considers to be in the interests of the Client. BusinessPortal-SE will endeavor to seek the approval of the Client by exhausting reasonable methods of communication. In the event of Client's approval not being obtained BusinessPortal-SE reserves the right to affect such divergence from the SIO provided the deviation must be the minimum deviation necessary in the circumstances.
BusinessPortal-SE will use commercially reasonable efforts to provide the Client at least 10 business days prior notification of any material changes to the Site that would potentially materially change the target audience or significantly affect the size or placement of the advertisement specified in the affected SIO. Should such a modification occur (with BusinessPortal-SE having given notice to the Client in respect thereof as aforesaid), as the Client's sole remedy for change or notice, the Client may reserve the right to cancel the remainder of the SIO without penalty, provided that such cancelation is in writing within 10 days of receipt of the aforesaid notice by the Client from BusinessPortal-SE. If BusinessPortal-SE has failed to provide notice in respect of such a modification, the Client (as the Client's only remedy) may cancel the remainder of the SIO immediately and in such case shall not be charged for any affected advertisements delivered after the Notice from the Client. If the termination is deemed unfair, the matter may be referred to private arbitration to determine the fairness of the Client's termination of the SIO, the parties agree to be bound by the decision of the independent arbitrator.
BusinessPortal-SE will submit final technical specifications, or otherwise make these electronically accessible to the Client, within two business days of acceptance of an SIO. Changes to the specifications of the already purchased advertisements after that two business day period will allow the Client to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected advertisement for a reasonable time in order to either:

send revised artwork, copy, or active URLs ("Advertising Materials");
request that BusinessPortal-SE resize the advertisement at its cost, and with final creative approval of the Client, within a reasonable time period, to fulfill the guaranteed levels of the SIO;
accept a comparable replacement; or if the parties are unable to negotiate, an alternate or comparable replacement in good faith within 5 business days; or
immediately cancel the remainder of the SIO for the affected advertisement without penalty.

3. PAYMENT AND PAYMENT LIABILITY

3.1. Invoices/Credit notes
The Advertiser shall pay to BusinessPortal-SE such amount as may be stipulated from time to time in respect of the Deliverables, together with VAT thereon. BusinessPortal-SE shall issue invoices at such intervals as it may determine. Invoices shall be sent to the Client's address as set forth in the SIO which address shall for all material purposes in terms of this contract serve as the Client's domicilim citandi et executandi address.

3.2. Payment Date
The Client will make payment within 7 days from the date of invoice, or as otherwise stated in a payment schedule set forth in the SIO. Should the Client fail to pay any amount to BusinessPortal-SE by the due date, BusinessPortal-SE shall be entitled, in its discretion and without prejudice to any other rights which it may have in our law, forthwith cancel these Terms or suspend performance of its obligations without notice. BusinessPortal-SE shall also be entitled to charge interest at the prime interest rate charged by Standard Bank Limited on all overdue amounts from the due date until date of payment.

By accepting this agreement the Client agrees to the jurisdiction of any Magistrate's Court within the Republic of South Africa.

Should the Client feel that any fraud has occurred, both parties will use their best endeavors to remedy. If a resolution is not reached, where fraud has occurred, the parties may refer this dispute for arbitration to be arbitrated by an independent arbitrator.

3.3. Payment Liability
Where the Client is represented by an agent ("Advertising Agent"), the Advertiser will make available to BusinessPortal-SE upon request, written confirmation of the relationship between the Advertising Agency and the Advertiser and the authority of such agent. This confirmation should include, for example, the Advertiser's acknowledgement that the Advertising Agency is its appointed agent and is authorised to act on its behalf in connection with the SIO and these Terms. In addition, upon the request of BusinessPortal-SE, the Advertising Agent will confirm whether the Advertiser has paid to the Advertising Agency in advance funds sufficient to make payments pursuant to the SIO.

If the Client, acting in its sole discretion, considers the Advertising Agency's creditworthiness to be impaired, BusinessPortal-SE may require payment in advance.

The Advertising Agent represents and warrants that it has the authority as agent to the Advertiser to bind the Advertiser to these Terms and each SIO. Advertising Agent agrees to defend, indemnify and hold harmless BusinessPortal-SE, its Affiliates and their respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) (collectively "Losses") incurred as a result of the Advertiser's alleged breach of the foregoing sentence.

4. REPORTING

BusinessPortal-SE shall provide the Client with such reports on number of impressions and "click throughs" as the Client may reasonably require from time to time.

5. CANCELLATION AND TERMINATION

At any time prior to the serving of the first impression of the SIO, the Client may cancel the SIO with 30 days prior written notice, without penalty. For clarity and by way of example, if the Client cancels the SIO 15 days prior to the serving of the first impression, the Client will only be responsible for the first 15 days of the SIO.
Upon the serving of the first impression of the SIO, the Client may cancel the SIO for any reason, without penalty, by providing BusinessPortal-SE written notice of cancellation which will be effective after the later of:

30 days after serving the first impression of the SIO; or
14 days after providing BusinessPortal-SE with such written notice.

Either party may terminate an SIO at any time if the other party is in material breach of its obligations hereunder or of its obligations as set out in these Terms, the SIO and in terms of any Policy (as defined in Clause 7.1) that is not cured within 2 working days after written notice thereof from the non breaching party, except as otherwise stated in these Terms with regard to specific breaches.

6. FORCE MAJEURE

Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including but not limited to fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that BusinessPortal-SE suffers such a delay or default, BusinessPortal-SE shall make reasonable efforts within 5 (five) business days to recommend a substitute transmission for the advertisement or time period for the transmission. If no such substitute time period or remedy is reasonably acceptable to the Client, BusinessPortal-SE shall allow the Advertiser a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase. In addition, the Client shall have the benefit of the same discounts that would have been earned had there been no default or delay.
The Client shall not be excused from its payment obligations pursuant to this clause 6.
To the extent that a force majeure has continued for 5 business days, the party entitled to receive the performance affected by such force majeure shall be entitled to cancel the remainder of the SIO without penalty.

7. ADVERTISEMENT MATERIALS

THE CLIENT SHALL PROVIDE BusinessPortal-SE WITH ADVERTISING MATERIALS IN ACCORDANCE WITH BusinessPortal-SE's THEN EXISTING ADVERTISING CRITERIA OR SPECIFICATIONS (INCLUDING CONTENT LIMITATIONS, TECHNICAL SPECIFICATIONS, PRIVACY POLICIES, USER EXPERIENCE POLICIES, POLICIES REGARDING CONSISTENCY WITH BusinessPortal-SE's PUBLIC IMAGE, COMMUNITY STANDARDS REGARDING OBSCENITY OR INDECENCY (TAKING INTO CONSIDERATION THE PORTION(S) OF THE SITE ON WHICH THE ADVERTISEMENTS ARE TO APPEAR), OTHER EDITORIAL OR ADVERTISING POLICIES, AND MATERIAL DUE DATES) (COLLECTIVELY "POLICIES"). BusinessPortal-SE's SOLE REMEDY FOR A BREACH OF THIS PROVISION IS SET FORTH IN PARAGRAPHS 7.2 AND 7.3 BELOW, CLAUSE 5.3, AND CLAUSE 8.2. THE CLIENT SHALL INFORM BusinessPortal-SE IF LATE DELIVERY OF CREATIVE MATERIALS IS EXPECTED. BusinessPortal-SE SHALL MAKE REASONABLE EFFORT TO ACCOMMODATE THE CAMPAIGN AT AN AGREED LATER DATE. SHOULD THIS NOT BE POSSIBLE, THE CLIENT AND BusinessPortal-SE SHALL ATTEMPT TO REMEDY THROUGH REVISION OF THE SIO TO ALTERNATIVE PLACEMENTS AND/OR CREATIVE. SHOULD NO AGREEMENT BE REACHED, THE CLIENT IS OBLIGED TO CANCEL THE SIO AS PER THE CANCELLATION TERMS STIPULATED IN CLAUSE 5.
BusinessPortal-SE shall be entitled in its sole discretion to reject or remove from its Site any advertisements where the Advertising Materials or the site to which the advertisement is linked do not comply with its Policies, or that in BusinessPortal-SE's sole judgment, do not comply with any applicable law, regulation or other judicial or administrative order. BusinessPortal-SE shall be entitled in its sole discretion to reject or remove from its Site any advertisements where the Advertising Materials or the site to which the advertisement is linked are or may tend to bring disparagement, ridicule, or scorn upon BusinessPortal-SE or any of its Affiliates.
If Advertising Materials provided by the Client are damaged, not compliant with BusinessPortal-SE's specifications, or otherwise unacceptable, BusinessPortal-SE will use commercially reasonable efforts to notify the Client within 2 (two) business days after its receipt of such Advertising Materials.
BusinessPortal-SE will not edit or modify the submitted advertisements in any way, including, but without limitation, resizing the advertisement, without the Advertiser's approval. BusinessPortal-SE shall use all such advertisements in strict compliance with these Terms and any written instructions provided by the Advertiser.
BusinessPortal-SE, on one hand, and the Client, on the other, will not use the other's trade name, trademarks, logos or advertisements in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms or an SIO without the other's prior written approval.
The Client grants to BusinessPortal-SE a worldwide, royalty free license to use the advertisements 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 SIO provided same as is clearly detailed on the SIO and agreed by both parties thereto.
The Client hereby warrants that it is, and at all relevant times will be, the lawful owner of the copyright in, and all other intellectual property rights relating to, the advertisements and all the material and content provided by the Client to BusinessPortal-SE for the purposes of the SIO (alternatively that the Client is the duly authorised representative of such lawful owner) and hereby irrevocably and unconditionally indemnifies BusinessPortal-SE and each Affiliate and holds BusinessPortal-SE and each Affiliate harmless against any claim made by any person, howsoever arising, from any infringement of copyright and/or infringement of any other intellectual property rights or other third party rights by the advertisements and/or any other material provided by the Client to BusinessPortal-SE and/or otherwise relating to the advertisements.
In the event that BusinessPortal-SE provides incorrect Advertising specs for placements on the Site, the Client is entitled to seek compensation for any reasonable costs incurred in the resizing of the Advertising Material.

8. INDEMNIFICATION

BusinessPortal-SE agrees to defend, indemnify and hold harmless the Client, their Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of BusinessPortal-SE's breach of Clause 10, BusinessPortal-SE's display or delivery of any advertisement in breach of these Terms as read with the relevant SIO, or that materials provided by BusinessPortal-SE (and not by the Client) for an advertisement violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent:
1. that such claim, judgment or proceeding resulted from such materials fulfilling BusinessPortal-SE's unique specifications, provided that BusinessPortal-SE did not know or should not have reasonably known that such specifications would give rise to the Loss; or
2. that such materials are provided to BusinessPortal-SE for review and the Client knew, or should have reasonably known from the visual or sonic expression of the advertisement, while BusinessPortal-SE did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene.
A "Third Party" means an entity other than the parties to these Terms, their respective Affiliates, and each of their respective directors, officers, employees and agents.
The Client agrees to defend, indemnify and hold harmless BusinessPortal-SE, its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Client's breach of Clause 10, violation of Policies (to the extent the applicable terms of such Policies have been provided to Client at least 10 (ten) days prior to the violation giving rise to the claim), or the content or subject matter of any advertisement or Advertising Materials to the extent used by BusinessPortal-SE in accordance with these Terms as read with the relevant SIO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.
If any action will be brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will:
1. provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and
2. be entitled to participate at its own expense in the defense of any such claim.
The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such Third Party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Clause 8, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable.
A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.

9. LIMITATION OF LIABILITY

Excluding the parties' obligations under Clause 8 or damages that result from a breach of Clause 10 or intentional misconduct by the parties, in no event will 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 Terms, even if such party has been advised of the possibility of such damages.

10. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS

The parties shall treat all information, in whatever form and howsoever recorded, that may reasonably be argued to have commercial value and 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 unauthorised persons.

11. MISCELLANEOUS

BusinessPortal-SE represents and warrants that BusinessPortal-SE has all necessary permits, licenses, and clearances to sell the inventory represented in the SIO subject to the terms and conditions of these Terms, including any applicable Policies. The Advertiser represents and warrants that the Advertiser has all necessary licenses and clearances to use the content contained in their advertisements and Advertising Materials.
The Client may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without BusinessPortal-SE's prior written approval will be null and void. All terms and provisions of these Terms and each SIO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
These Terms and Conditions and the related SIO 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 SIO. The SIO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
In the event of any inconsistency between the terms of an SIO and these Terms, the terms of the SIO shall prevail. All SIOs shall be governed by the laws of the Republic of South Africa. BusinessPortal-SE and Client agree that any claims, legal proceeding or litigation arising in connection with the SIO (including these Terms) will be brought solely in the Republic of South Africa, and the parties consent to the jurisdiction of any Magistrate's Court or of such courts as it becomes necessary. No modification of these Terms or any SIO shall be binding unless in writing and signed by both parties. 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.
Any notice required to be delivered hereunder shall be delivered 3 (three) days after deposit in SA postal mail, return receipt requested, 1 (one) business day if sent by overnight courier service and immediately if sent electronically or by fax. All notices to BusinessPortal-SE and Client shall be sent to the contact and to the address as specified in the SIO.
Clauses 3, 8, 9, 10, and 11 shall survive termination or expiration of these Terms. In addition, each party shall return or destroy the other party's Confidential Information and remove Advertising Materials and advertisements.