Terms and Conditions General
All services supplied by Grapevine Creative Media CC, registration number 2002/051388/23 (“Grapevine”) shall be made and supplied on the following terms and conditions (“this Agreement”). Similarly, the use of Grapevine’s services will be governed by the terms and conditions in this Agreement. This Agreement shall take precedence over any other terms and conditions, which may be contained in the Client’s acceptance of order, or other client documentation, and may only be altered with the express written agreement of Grapevine. Any conflicting statements in any acceptance of order or other documentation issued by the Client shall be null and void, unless such special terms have been expressly agreed to in writing by Grapevine.
In this agreement unless the context indicates a contrary intention –
- clause headings are for convenience only and shall not be used in its interpretation;
- an expression which denotes any gender includes the other genders and a natural person includes an artificial person and vice versa;
- the singular includes the plural and vice versa.
- Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:
- “Client” means the Party accessing the Website and/or receiving or to receive services from Grapevine;
- “Grapevine’s Associates” means Grapevine’s officers, servants, agents or contractors or any other persons in respect of whose actions Grapevine may be held to be vicariously liable;
- “Parties” means Grapevine and the Client;
- “Scope of Work” means any cost estimate, quotation, document, proposal or correspondence from Grapevine to the Client describing the Services proposed or actually rendered by Grapevine to the Client;
- “Services” means the placement of advertising content approved by the Client, on the Devices, and shall include, inter alia –
- Installation of Devices at the agreed Sites;
- Provision of advertising content to screen on the Devices;
- maintaining the Device and the update of the Device with the latest software.
- Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in this interpretation clause.
- Unless inconsistent with the context or save where the contrary is expressly indicated:
- if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement;
- a reference to “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “Business Day” shall be any day other than a Saturday, Sunday or official public holiday in the Republic. Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hundred hours and thirty minutes) and 17h00 (seventeen hundred hours) on any Business Day. Any reference to time shall be based upon South African Standard Time;
- when any number of days is prescribed in this Agreement, same 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 last day shall be the next succeeding Business Day;
- in the event that the day for performance of any obligation to be performed in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;
- any reference in this Agreement to this Agreement or to any other agreement or document shall be construed as a reference to this Agreement or (as the case may be) such other agreement or document, as the same may have been, or may from time to time be, amended, varied, novated or supplemented;
- no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a party to this Agreement;
- a reference to a Party includes that Party’s Permitted Successors.
- The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
- Where in this Agreement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
- The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
- The Cost Estimates, Scope of Works, appendices and schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such appendices and schedules.
- This Agreement governs all and any Services provided by Grapevine. The operation of these terms and conditions may only be amended by Grapevine in a subsequent agreement entered into and signed by both Parties.
- By accepting and/or receiving the Services, the Client agrees to be bound by this Agreement.
Appointment and Duration
- This Agreement commences once there has been any engagement between Grapevine and the Client.
- Clauses 7, 8, 9 and 11 as well as such other clauses which are intended to survive termination as set out below, shall survive termination of this Agreement for any reason.
- Grapevine shall render the Services as agreed between the Parties in a Scope of Work / Cost Estimate.
- All instructions given to Grapevine by the Client must be in writing.
- Grapevine reserves the right to edit, revise or to reject even after acceptance for distribution, any advertisement deemed to be untruthful or objectionable in subject matter or wording, or unsuitable for any other reason, whether space for the advertisement has been booked in advance under order or not.
- Every precaution is taken to ensure correct printing of all advertisements, but no liability can be accepted for any inaccuracies or omissions, or for any consequences arising there from.
- No changes to advertisements will be accepted once production by Grapevine has commenced.
- Space is sold to advertisers for the purpose of making announcements concerning their own business.
- Grapevine cannot be held liable for any campaigns that run late due to delays from the Client or retailer (i.e. Artwork, Signed Quotes and PO’s).
- Grapevine reserves the right to modify any content provided by the Client to fit the standard Advertising’ format.
- Grapevine agrees to use its reasonable endeavours to complete the Client Digital Advertising Signage Setup Services and launch the advertising by the date specified in the Scope of Work on condition that all content (visual & text) is received no less than 48 hours prior to launch. The Client agrees that Grapevine’s ability to meet this date requires the Client to fulfil its obligations under the Agreement and that any delay caused by a failure by the Client to meet these obligations or by other causes beyond Grapevine’s control (including without limitation the failure of third parties to perform their obligations on time) will not constitute a breach of Grapevines obligations hereunder. Grapevine shall be allowed such extra time to complete its obligations as is reasonable in the circumstances.
- All campaigns will be applied on the dates agreed upon. Vinyl application may commence the day before the signed off execution date, for the sake of expediency.
- It is the Client’s responsibility to ensure that their product(s) are stocked in the stores where the campaign is scheduled to roll out i.e. that the store has sufficient stock to execute the campaign. Should the Client’s product(s) not be in the stores requested, Client is liable for the full costs associated therewith.
- All retail campaigns are subject to retailer’s approval and exclude Media Fees. This must be negotiated between the Client and the Retailer.
- No changes to artwork will be accepted under the following conditions on Retail campaigns:
- Once Grapevine has started quoting on the final mock-ups: A R1000 fee will be charged for every quote that Grapevine sends thereafter;
- Digital campaign delivery criteria – Work will be deemed delivered on launch of campaign;
- Once Grapevine has commenced production – Client will be billed for any reprints that occur.
- Grapevine will not be held liable for any colour discrepancies due to late artwork sign off.
- The Campaign has been delivered on receipt of the photographic feedback report and Courier Tracking Sheet. Should any further feedback be required these can be supplied at an additional cost.
- All Beepa Sleeve material is stored at no fee for a period of 6 months and are thereafter destroyed. Extended storage can be arranged on request in writing. Fees will apply.
- Regardless of the circumstances, unless commissioned to evaluate hardware’s suitability to be branded, Grapevine cannot be held responsible for any damages that are caused to paint surfaces or hardware in removing branding material.
- The Parties expressly record that each instance of the Services constitutes a separate and distinct service, and nothing set out in this Agreement shall be construed as obliging Grapevine to render all such Services as a single, indivisible service.
Delivery and Collection of advertising material
- Physical products supplied by Product Barter providers are to be delivered within 30 days of the campaign launch date or as otherwise agreed in writing. Product Barter providers will be invoiced the value of any undelivered or unusable goods
- All material must be claimed within 30 days of the completion of the campaign, after which Grapevine shall not accept any responsibility.
- If the Client has requested collection of collateral and couriered the collateral back to Grapevine all collateral material must be claimed from Grapevine, within 30 days after the completion of the campaign, after which Grapevine reserves the right to dispose of the collateral and shall not be held responsible for such collateral. Storage of the collateral will only be implemented should the client request this as there is a cost associated with this service which must be paid for by the Client.
- Should the Client fail to request insurance on their couriered goods then Grapevine cannot be held liable for the cost of any damage incurred to the couriered goods during transportation.
- Should the Client not have paid for collection / courier back to Grapevine then Grapevine cannot take responsibility for the Client’s collateral.
- Grapevine shall provide the Client with a cost estimate, in advance, for all Services to be performed by Grapevine. Cost estimates are for indication purposes only and may differ from the final invoice.
- Final quotes will only be provided on final artwork signoff.
- A R1000 fee will be charged for every quote that Grapevine sends after it has commenced quoting on the final mock ups for any campaign.
- Where artwork has been changed and Grapevine requires additional quotes from suppliers. Additional artwork hours will be charged for at the then current per hour rate should the layout change after sign off.
- Store lists must be supplied to Grapevine as per the deadline schedule. Only once Grapevine has received the store list will a quote be able to be compiled
- The Client shall, as consideration for the Services to be rendered by Grapevine in terms of this Agreement, effect payment to Grapevine of fees at the rates set out in the final invoice.
- In the event that Grapevine’s invoices do not state Grapevine’s payment terms, invoices are payable within 30 days from date of the relevant invoice.
- The Client shall be responsible for any Courier fee Shortfall Fee – Due to the nature of courier expenses billed to Grapevine after job completion, the courier fees charged upfront are an estimate. Should there be a shortfall on the courier fee, the difference will be billed to the Client separately.
- All costs incurred during the course of compiling a quote, such as, but not limited to design, production, sampling, store visits and management will be charged to the Client should the quote not proceed.
- Visits to Retailers / Areas while on site, for whatsoever reason, will be charged separately.
- Artwork fees are charged upfront for convenience, based on hourly estimates. Design time that exceeds the estimate shall accrue a separate fee based on the additional artwork hours.
- Grapevine is not responsible for non-performance of retailer’s implementers. Therefore if Grapevine is required to go back to the site after the initial call out and only one call out was charged for, all additional call out fees will be charged on a separate order on completion of the campaign.
- Unless otherwise agreed in writing, the fees shall escalate per annum on the 1st of January of every year.
- In the event of the Client failing to timeously effect payment of any amount due to Grapevine in terms of this Agreement, Grapevine shall be entitled to suspend the provision of the Services in terms of this Agreement for any period in which any payment remains outstanding. Grapevine shall be entitled to charge interest on all unpaid invoices at a rate of 2% per month.
- The Client agrees that it shall pay all Grapevine’s expenses in recovering any amounts the Client owes Grapevine, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
- Should your digital Launch Pad campaign be extended for whatsoever reason an additional rental fee is applicable.
- Subject to clause 8.2, both Parties shall at all times treat all information in connection with and/or relating to the other Party, its business and all matters incidental thereto and which was if in writing, marked ‘confidential’ or similarly; and/or if disclosed orally, was confirmed at the time of such disclosure as constituting confidential information and was confirmed in writing within 14 days as constituting confidential information, (“the Confidential Information”), as strictly confidential and shall not, without the prior written consent of the other Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of such other Party) disclose such Confidential Information to any Party, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.
- Each Party may disclose Confidential Information to its officers, employees and sub- contractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof. Each Party shall inform any officer, employee or sub-contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any third party (other than those persons to whom it has already been disclosed in accordance with the terms of this Agreement), on the basis that the disclosing Party is responsible for any disclosure, in breach of this 8.2, by the person to whom it is disclosed.
- Notwithstanding the stipulations of clause 8.1, Confidential Information shall not include, any information which, at the time of disclosure, is generally known by the public and any competitors of the disclosing Party, is required to be given, made or published by law or under the rules and regulations of any relevant stock exchange or any applicable regulatory authority.
Prohibition on Solicitation or Interference
- The Client shall not solicit, offer work to, or contract with, whether as a partner, employee or independent contractor, directly or indirectly, any of Grapevine’s personnel who are directly involved in the provision of the Services, during the provision of the Services or during the 12 (twelve) months thereafter.
- The Client shall not knowingly, for the duration of this Agreement and for a period of 1 year after this Agreement terminates for any reason, furnish any information or advice to anyone else which results in any staff member or any representative, agent or Client of Grapevine to terminate his employment with Grapevine and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by Grapevine.
- Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.
- To the fullest extent permissible by law, Grapevine disclaims all warranties of any kind, whether express or implied in respect of the Services, and the Client utilizes the Services at its own risk.
- Grapevine will not be held liable for incorrect information supplied by the retailers where the campaign is to be executed or any subsequent decision the retailer makes (i.e. stock input etc.)
- Grapevine cannot be held liable for damage caused to in-store collateral after the date of execution.
- The Client agrees that Grapevine is unable to and is not required to guarantee a particular return on investment or result from the use of the Services.
- The Client agrees that neither Grapevine nor Grapevine’s Associates shall be liable in respect of any loss, damage or damages however arising and whatever the cause, in particular pursuant to and in furtherance of this Agreement.
- In the event that Grapevine is found to be liable to the Client for a particular act or omission then Grapevine’s liability to the Client pursuant to the provisions of this Agreement shall furthermore be limited to the total amount of the fees charged and paid by the Client in the year in which the liability arose.
- The Client warrants that it owns the copyright or has the authority to use any content provided and included in the Client Digital Advertising in the manner in which it will be used. This includes but is not restricted to any images, trademarks, graphics, illustrations, photographs, animations, pictures, logos, copy text or any other media.
- All design templates remain the intellectual property of Grapevine and will not be disseminated unless written consent is given.
- All information supplied by Grapevine regarding locations and or measurements are Grapevines intellectual property and use without consent is prohibited.
- The Beepa Sleeves purpose is to advertise your product in-store over an agreed period of time. The physical sleeve forms part of Grapevine’s intellectual property and shall remain Grapevine’s property at all times.
- The Client hereby indemnifies Grapevine and Grapevine’s Associates from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, willful misconduct and/or gross negligence.
- The Client indemnifies Grapevine against any damage and/ or expense, which Grapevine incurs as a direct or indirect consequence of the Client’s advertisement or advertising material.
- The Client indemnifies and shall keep Grapevine indemnified against any claim for infringement of intellectual property rights in connection with any information supplied by the Client to Grapevine and against any and all costs, expenses and damages which Grapevine may incur or become liable for as a result of such infringement.
- Grapevine shall give the Client prompt notice in writing of any claim being made or action threatened or brought against Grapevine and will permit the Client, at the Client’s own expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
- The Client accepts and understands that they are required to approve all works prior to publication or printing. The Client indemnifies Grapevine for the approval of any works that it has approved which subsequently may not be correct or not to the Client’s standards.
- The Client may terminate this Agreement, or any particular Services, upon written notice to Grapevine of intended cancellation of the Services. Any such cancellation will be subject to the following:
- Should a Client or the retailer wish to cancel a retail campaign or if the campaign is rejected by the retailer, the artwork and management fees, including mock-ups / concept designs will be due and payable by the Client;
- Full fees apply on all production costs incurred at the time of a cancellation;
- The Client shall pay Grapevine for all work-in-progress, Services already performed, and expenses incurred by Grapevine up to and including the effective date of the termination of this Agreement;
- Over and above the costs set out in clauses 13.1.1;13.1.2 and 13.1.3 Grapevine reserves the right to charge a reasonable cancellation fee should the Client unilaterally terminate the Services or this Agreement in a manner and/or for a reason not expressly provided for in this Agreement.
- The respective confidentiality and prohibition on solicitation obligations under this Agreement shall continue for a period of 2 (two) years following the termination of this Agreement. The other provisions of this Agreement that give either Party rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement.
- This clause is limited to a written notice of cancellation of this Agreement or any particular advertising in terms of this Agreement, given and received prior to the Commencement Date.
- The Parties hereby agree that should this Agreement (or any Booking Schedule) be cancelled by the Advertiser or Media owner (on written notice to the Company) prior to the Commencement Date, such cancellation will be subject to the following:
- Should the Advertiser or Media Owner cancel this Agreement at least 120 (one hundred and twenty) days prior to the Commencement Date no cancellation fee will be due and payable by the Advertiser or Media Owner.
- Should the Advertiser or Media Owner cancel this Agreement between 120 (one hundred and twenty) and 90 (ninety) days prior to the Commencement Date, a cancellation fee, equivalent to 25% (twenty five percent) of the total cost estimate payable by the Advertiser or media Owner for the Campaign Period and shall upon receipt of the written cancellation notice be due and payable by the Advertiser or Media owner;
- Should the Advertiser or Media Owner cancel this Agreement between 90 (ninety) and 60 (sixty) days prior to the Commencement Date, a cancellation fee, equivalent to 50% (fifty percent) of the total cost estimate payable by the Advertiser or Media Owner for the Campaign Period and shall upon receipt of the written cancellation notice be due and payable by the Advertiser or Media owner;
- Should the Advertiser or Media Owner cancel this Agreement, within 60 (sixty) days of the Commencement Date, a cancellation fee, equivalent to 100% (one hundred percent) of the total cost estimate payable by the Advertiser or Media Owner for the Campaign Period and shall upon receipt of the written cancellation notice be due and payable by the Advertiser or Media Owner.
- Should the Advertiser or Media Owner cancel this Agreement, the Advertiser or Media Owner shall remain liable for all amounts due to the Company in respect of Production, management fee and installation booking fee actually incurred by the Company as at the cancellation date.
- The Advertiser or Media Owner acknowledges that the cancellation fees represent a genuine pre-estimate of the liquidated damages suffered by the Company as a result of early termination of this Agreement.
- No cancellation in terms of this clause shall be valid unless given in writing by the Advertiser or Media Owner.
- If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.
- Any Party invoking force majeure shall, upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 90 days then the Party who shall not have invoked the force majeure shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.
- Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of this Agreement except with the prior written consent of the other Party.
- Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within seven business days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
- Subject to clause 13, cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or
- claim specific performance of all the Offending Party’s obligations whether due for performance or not,
- in either event without prejudice to the Aggrieved Party’s right to claim damages.
- If any of the following events, each of which shall be separate from the others, occur, both parties shall be able to terminate this Agreement with immediate effect upon written notice:
- Either party is placed in provisional or final liquidation or business rescue or if it commits an act which on the part of a natural person would be an act of insolvency as defined in the Insolvency Act, 1936; or
- Either party makes an arrangement or composition with its creditors generally, ceases or threatens not to carry on business.
DISPUTE RESOLUTION AND ARBITRATION
- This Agreement shall be governed by the laws of the Republic of South Africa.
- At Grapevine’s election, any dispute arising under this Agreement, shall be submitted to arbitration in Johannesburg in accordance with the rules of the Arbitration Foundation of South Africa by an arbitrator or arbitrators agreed to by the Parties or, failing agreement, appointed by the Arbitration Foundation of South Africa.
- Notwithstanding, the provisions of 17.1, Either party shall be entitled at its option to institute any legal proceedings which may arise out of or in connection with this Agreement in any High Court having jurisdiction.
Domicilium and Notices
- The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any legal notice or the serving of any process, as follows:
- Grapevine – 73 Bowling Avenue, Morningside Manor, Johannesburg
- The Client – Registered head office or the place of business
- Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.
- Any notice given by either party to the other (“the Addressee”) which:
- is delivered by hand during the normal business hours of the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee at the time of delivery;
- is posted by prepaid registered post to the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee on the fourth (4th) day after the date of posting.
- Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
- This agreement will constitute the sole agreement between the parties and shall supersede all other agreements and/or representations whether written, oral and/or implied between the parties.
- Neither party shall be bound by any express or implied term, representation, promise or the like not recorded herein. For purposes hereof a “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.
- No addition to, variation, or agreed cancellation of this agreement, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of the parties. For purposes hereof “in writing” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.
- No indulgence which either party (“the grantor”) may grant to the other (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
- If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.
- Nothing in this agreement shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way for any purpose.