Terms

“2OCEANSVIBE MEDIA”

TERMS AND CONDITIONS FOR INTERNET
DISPLAY ADVERTISING [FOR MEDIA BUYS ONE YEAR OR LESS]

• The following terms and conditions shall be deemed to be incorporated into the insertion order/ IO and these terms (“T&C’s“) governs the legal relationship between the party described on the insertion order to which this document relates (including if such party is acting as agent for a third party) (“the Advertiser“) and 2OCEANSVIBE MEDIA CC (“2OCEANSVIBE MEDIA“) in respect of rendering by 2OCEANSVIBE MEDIA of advertisements (constituted of such text, graphics, image, content or any other marketing or promotional material provided by the Advertiser to “2OCEANSVIBE MEDIA” from time to time pursuant to an IO (“the Advertisements“) on the “2OCEANSVIBE MEDIA” web site/s (being the web sites owned and/or operated by “2OCEANSVIBE MEDIA” and/or by any Affiliate (any third party with whom “2OCEANSVIBE MEDIA” has entered into an agreement relating in any manner to the web site(s) owned and/or operated by such third party (including where such agreements are for the provision of search technology and/or otherwise for the placement of Advertisements thereon) (“the Site“).  These T&C’s shall be read with the insertion order to which they relate and in the event of a conflict between these T&C’s and the insertion order, the insertion order will take precedence but solely to the extent of such conflict.
• In the interpretation of these T&C’s, unless the context clearly otherwise indicates:
  • Words importing the singular shall include the plural and vice versa, words importing any gender shall include the other genders and words importing persons shall include partnerships and bodies corporate.
  • The head notes to the paragraphs to these T&C’s are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
  • If any provision in the abovementioned 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 were a substantive provision 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 business day (being any day other than a Saturday, Sunday or officially recognized 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 day thereafter which is a business day.
  • 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/ies 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.
  • A reference to any statutory enactment shall be construed as a reference to that enactment as at the signature date and as amended or re-enacted from time to time thereafter.
  • Reference to 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% (fifty percent) 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.
  •  Reference to a “Third Party” means an entity other than the parties to these T&C’s, their respective Affiliates, and each of their respective directors, officers, employees and agents.
•  INSERTION ORDERS AND DELIVERY OF ADVERTISEMENTS
  • From time to time, the parties may negotiate IO’s pursuant to which 2OCEANSVIBE MEDIA will render the Advertisements on the Sites for the benefit of an Advertiser. At the Advertiser’s discretion, an IO may either be submitted by Advertiser to 2OCEANSVIBE MEDIA or be submitted by 2OCEANSVIBE MEDIA, signed by Advertiser and returned to 2OCEANSVIBE MEDIA. In either case, an IO will only be binding if accepted and signed by 2OCEANSVIBE MEDIA.  Notwithstanding the foregoing, any modifications to the originally submitted IO will not be binding unless signed by both parties. Each IO shall specify: (a) the type(s) and amount(s) of inventory to be delivered (e.g., impressions, clicks or other desired actions) (“the Deliverables“); (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the IO (if applicable), (d) the start and end dates of the campaign, and (e) the identity of and contact information for any third party ad server (“3rd Party Ad Server“), if applicable. Other items that may be stipulated on the IO are, but are not limited to: reporting requirements such as impressions or other performance criteria; any special Advertisement delivery scheduling and/or Advertisement placement requirements; and specifications concerning ownership of data collected.
  • “2OCEANSVIBE MEDIA’ will use its commercially reasonable efforts to deliver the advertisements as specified in the IO.  Notwithstanding anything to the contrary in the IO, 2OCEANSVIBE MEDIA is only obliged to deliver the aggregate number of impressions set out in the IO (if any) as a whole, and has no obligation to deliver “click-throughs” or “acquisitions” or any similar deliverable or target. Unless the IO requires 2OCEANSVIBE MEDIA to deliver an aggregate number of impressions or to place an advertisement on a specific 2OCEANSVIBE MEDIA property or page, 2OCEANSVIBE MEDIA has no obligation to publish, post or otherwise deliver any impressions in any 2OCEANSVIBE MEDIA property.
• AD PLACEMENT AND POSITIONING
  • Except as otherwise expressly provided in the IO, positioning of advertisements within the 2OCEANSVIBE MEDIA properties or on any page is at the sole discretion of 2OCEANSVIBE MEDIA. 2OCEANSVIBE MEDIA may, at its sole discretion, remove from the IO (and substitute with similar inventory) any advertisement that it believes to be a trademark, trade name, company name, product name or brand name belonging to or claimed by a third party.
  • Save as otherwise provided in these T&C’s, 2OCEANSVIBE MEDIA shall comply with the IO in all material respects, including all Advertisement placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Advertisement to the Site specified on the IO when such Site is called up by an Internet user. Where 2OCEANSVIBE MEDIA deviates from the IO, it shall do so only with the prior written approval of the Advertiser or as provided herein. Where 2OCEANSVIBE MEDIA is unable to obtain the approval of the Advertiser to regarding deviations from the IO (having used its reasonable commercial endeavours to do so), 2OCEANSVIBE MEDIA may deviate from the IO in such a manner and to such an extent as 2OCEANSVIBE MEDIA, acting reasonably, considers to be in the interests of the Advertiser.
  • 2OCEANSVIBE MEDIA will use commercially reasonable efforts to provide Advertiser at least 10 business days prior notification of any material changes to the Site of which 2OCEANSVIBE MEDIA becomes aware that would potentially materially change the target audience or significantly affect the size or placement of the Advertisement specified in the affected IO. Should such a modification occur (with 2OCEANSVIBE MEDIA having given notice to the Advertiser in respect thereof as aforesaid), as the Advertiser’s sole remedy for change or notice, Advertiser may cancel the remainder of the IO without penalty provided that it provides 2OCEANSVIBE MEDIA with written notice to such effect within 10 days of receipt of the aforesaid notice by Advertiser. If 2OCEANSVIBE MEDIA has failed to provide notice in respect of such a modification, Advertiser (as Advertiser’s sole remedy) may cancel the remainder of the IO immediately and in such case shall not be charged for any affected Advertisements delivered after the giving of such notice by Advertiser. If the termination is deemed unfair, an impartial third party (as agreed between the parties) can be contracted to establish whether the Advertiser was justified in doing so. If they find that the Advertiser was not justified in cancelling the IO, the publisher is entitled to recover payment for the campaign.
  • 2OCEANSVIBE MEDIA will submit or otherwise make electronically accessible to Advertiser within 3 (three) business days of acceptance of an IO final technical specifications, as determined by 2OCEANSVIBE MEDIA. Changes to the specifications of the already purchased Advertisements after that 3 business day period will allow Advertiser 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 (i) send revised artwork, copy, or active URLs (“Advertising Materials“); (ii) request that 2OCEANSVIBE MEDIA resize the Advertisement at advertiser’s cost, and with final creative approval of Advertiser, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within 5 (five) business days, immediately cancel the remainder of the IO for the affected Advertisement without penalty.
• PAYMENT AND PAYMENT LIABILITY
  • Advertiser must submit a completed credit application to determine terms of payment. If no credit application is submitted or the request for credit is denied by 2OCEANSVIBE MEDIA in its sole discretion, the IO must be paid in advance (either online or by such other mode as 2OCEANSVIBE MEDIA may decide) of the advertisement start date unless otherwise agreed by 2OCEANSVIBE MEDIA in its sole discretion. If 2OCEANSVIBE MEDIA approves credit, Advertiser will be invoiced on the first day of the contract period set forth on the IO, or such other dates as 2OCEANSVIBE MEDIA may in its sole discretion decide, and payment shall be made to 2OCEANSVIBE MEDIA within thirty (30) days from the date of invoice (“Due Date“).
  • Amounts outstanding after the Due Date shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less) from due date until date of payment. In the event Advertiser fails to make timely payment, Advertiser will be responsible for all expenses (including any and all legal fees) incurred by 2OCEANSVIBE MEDIA in collecting such amounts.
  • 2OCEANSVIBE MEDIA reserves the right to suspend performance of its obligations hereunder (or under any other agreement with Advertiser) in the event Advertiser fails to make timely payment hereunder or under any other agreement with 2OCEANSVIBE MEDIA.
  • Invoices shall be sent to the Advertiser’s billing address as set forth in the insertion order and shall include such information as Advertiser may reasonably require.
  • Where the Advertiser is requested by an agency (appearing and named at the beginning of the IO) (“Advertising Agent“) who executes the IO for and on behalf of the Advertiser, the Agency hereby represents, warrants and undertakes that: (i) it has the power and authority to execute the IO for itself and as well as for and on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts, and that by executing an IO, the Advertiser is also entering into the IO, (ii) it shall make all the representations and warranties of the Advertiser under the IO and T&C’s as if it were the Advertiser; and (iii) it will guarantee all the obligations of the Advertiser under the IO and T&C’s as if it were the Advertiser. For the avoidance of doubt, nothing herein shall affect the obligations of the Advertiser under the IO and T&C’s, which shall continue to bind the Advertiser, who shall be deemed to have duly executed this IO by its agent, the Agency. Upon 2OCEANSVIBE MEDIA’S request, Advertising Agency will immediately deliver to it each agreement that designates Advertising Agency as the Advertiser’s agent and authorizes Agency to act on the Advertiser’s behalf in connection with the IO and T&C’s.
  • Without limiting any other provisions of this Agreement, Advertising Agency and each Advertiser shall be jointly and severally liable for all payment obligations due pursuant to the IO and T&C’s, and the Advertising Agency hereby waives any rights in law (as far as legally permitted) that may require 2OCEANSVIBE MEDIA to proceed against one or more party prior to proceeding against any others who may also be liable. Notwithstanding the foregoing, (i) 2OCEANSVIBE MEDIA will hold Advertising Agency liable for all payments due solely to the extent that Advertising Agency has received payment from such Advertiser; for sums not received by Representative, we will hold the Advertiser solely liable (“Sequential Liability”), and (ii) in the event Advertising Agency either breaches or allegedly breaches any representation or warranty made in this section, or fails to comply with 2OCEANSVIBE MEDIA’s request to confirm whether an Advertiser has paid to it in advance funds sufficient to make payments pursuant to an IO and T&C’s, Advertising Agency shall be obligated to immediately pay all such amounts due us regardless of whether it has received payment from such Advertiser. The Advertising Agency acknowledges that 2OCEANSVIBE MEDIA may directly contact any Advertiser represented by Advertising Agency, including if we have not received payment for such Advertiser’s account within 60 days from the date of the applicable invoice.
  • If 2OCEANSVIBE MEDIA, acting in its sole discretion, considers Advertiser or Advertising Agency’s creditworthiness to have become impaired at any time, 2OCEANSVIBE MEDIA may require payment in advance.
  • Advertiser agrees that all payments under the IO shall be exclusive of any value-added or goods and services tax imposed by any government, statutory or tax authority and that any such value-added or goods and services tax imposed by any government, statutory or tax authority in any country or territory in respect of such payments shall be borne by the Advertiser. The Advertiser further agrees that all amounts payable under the IO shall be paid (1) free of any restriction or condition, (2) free and clear of and without any deduction or withholding for or on account of any tax and (3) without deduction or withholding on account of any other amount, whether by way of set-off or otherwise. If at any time any tax or other amount must be deducted or withheld from the amounts paid or payable by, or received or receivable from, the Advertiser under the IO, (except for a payment by the recipient of tax on its own overall net income) the Advertiser shall pay such additional amount as is necessary to ensure that 2OCEANSVIBE MEDIA receives on the Due Date and retains (free from any liability other than tax on its own overall net income) a net sum equal to what it would have received and so retained had no such deduction or withholding been required or made. Within 30 days after paying any sum from which it is required by law to make any deduction or withholding, the Advertiser shall deliver to 2OCEANSVIBE MEDIA evidence of that deduction, withholding or payment. As soon as the Advertiser is aware that any such deduction, withholding or payment is required (or of any change in any such requirement), it shall notify 2OCEANSVIBE MEDIA.
• REPORTING

2OCEANSVIBE MEDIA shall provide Advertiser with such reports as Advertiser may reasonably request in writing from time to time.

• CANCELLATION AND TERMINATION
  • Except as otherwise provided in the IO, the IO is non-cancellable by Advertiser. Notwithstanding the generality of the foregoing, if payment is made Online, refunds may be given only upon receipt by 2OCEANSVIBE MEDIA of a detailed written statement and supporting evidence, satisfactory to 2OCEANSVIBE MEDIA, that the payment in question was made as a result of fraud.
  • At any time prior to the serving of the first impression of the IO, Advertiser may cancel the IO with 30 days prior written notice, without penalty. For clarity and by way of example, if Advertiser cancels the IO 15 days prior to the serving of the first impression, Advertiser will only be responsible for the first 15 days of the IO.  Excluded from this will be newsletter and promotional mailer inserts booked which carry a compulsory 30 days written cancellation notice, should any of these placements be cancelled within 30-days of the booked insert date, Advertiser will be responsible for the full cost of the inserts affected by the less than 30 days cancellation notice.
  • Sponsorships are subject to a minimum 8 weeks written cancellation notice, without penalty for a contract of 6 months or less.
  • Sponsorships are subject to a minimum 12 weeks written cancellation notice, without penalty for a contract of more than 6 months.
  • Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder and that breach is not cured within 3 working days after written notice thereof from the non breaching party, except as otherwise stated in these T&C’s with regard to specific breaches.
• MAKEGOODS
  • 2OCEANSVIBE MEDIA shall monitor delivery of the Advertisements, and shall notify Advertiser either electronically or in writing as soon as reasonably possible if 2OCEANSVIBE MEDIA believes that an under-delivery is likely. If by the end of the first half of the campaign, the publisher believes the campaign will not deliver in full as per IO, the Advertiser has a right to cancel that remaining portion of the IO and allocate the remaining underserved budget to other media campaigns or sites.
  • In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO (if any have been determined), and/or if there is an omission of any Advertisement (placement or creative unit), Advertiser and 2OCEANSVIBE MEDIA will make reasonable efforts to agree upon the conditions of a make-good flight either in the IO or at the time of the shortfall. If no make-good can be agreed upon, 2OCEANSVIBE MEDIA shall, as Advertiser’s sole remedy, provide Advertiser with a credit equal to the value of the under-delivered portion of the IO.
• BONUS IMPRESSIONS
  • Where Advertiser utilizes a 3rd Party Ad Server, 2OCEANSVIBE MEDIA will not bonus more than 10% above the Deliverables specified in the IO without prior written consent from Advertiser. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad served activity. Advertiser will not be charged by 2OCEANSVIBE MEDIA for any additional Advertisments above any level guaranteed or capped in the IO if any such guarantees are specifically provided for. If a 3rd Party Ad Server is being used and Advertiser notifies 2OCEANSVIBE MEDIA that the guaranteed or capped levels stated in the IO have been reached, 2OCEANSVIBE MEDIA will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Advertisements itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser after such notice has been provided and associated with over delivery by more than 10% above such guaranteed or capped levels.
  • Where Advertiser does not utilize a 3rd Party Ad Server, 2OCEANSVIBE MEDIA may bonus as many ad units as 2OCEANSVIBE MEDIA chooses unless otherwise indicated on the IO. Advertiser will not be charged by 2OCEANSVIBE MEDIA for any additional advertising units above any level guaranteed in the IO.
• FORCE MAJEURE
  • Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under these T&C’s 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 2OCEANSVIBE MEDIA suffers such a delay or default, 2OCEANSVIBE MEDIA shall make reasonable efforts within five business days to recommend a substitute transmission for the Advertisement or time period for the transmission. If no such substitute time period or make-good is reasonably acceptable to Advertiser, 2OCEANSVIBE MEDIA shall allow 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, Advertiser shall have the benefit of the same discounts that would have been earned had there been no default or delay.
  • Advertiser shall not be excused from its payment obligations pursuant to this clause 10.
  • To the extent that a force majeure has continued for 10 business days, the party entitled to receive the performance affected by such force majeure shall be entitled to cancel the remainder of the IO without penalty.
• ADVERTISEMENT MATERIALS
  • The Advertiser shall provide 2OCEANSVIBE MEDIA with Advertising Materials in accordance with 2OCEANSVIBE MEDIA’s then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with 2OCEANSVIBE MEDIA’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”), including the manner of transmission to 2OCEANSVIBE MEDIA and the lead-time prior to publication of the advertisement.
  • 2OCEANSVIBE MEDIA shall not be required to publish any advertisement that is not received in accordance with such Policies and reserves the right to charge Advertiser, at the rate specified in the IO, for inventory held by 2OCEANSVIBE MEDIA pending receipt of acceptable materials from Advertiser which are past due.
  • Advertiser shall inform Publisher if late delivery of creative is expected. Publisher shall make reasonable effort to accommodate the campaign at an agreed later date. Should this not be possible, Advertiser and Publisher shall attempt to remedy through revision of the IO to alternative placements and/or creative. Should no agreement be reached, Advertiser is obliged to make payment as per the IO.
  • If Advertising Materials provided by Advertiser are damaged, not compliant with 2OCEANSVIBE MEDIA’s specifications, or otherwise unacceptable, 2OCEANSVIBE MEDIA will use commercially reasonable efforts to notify Advertiser within 2 working days after its receipt of such Advertising Materials.
  • 2OCEANSVIBE MEDIA 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, if any, or that in “2OCEANSVIBE MEDIA’s sole judgment, do not comply with any applicable law, regulation or other judicial or administrative order. 2OCEANSVIBE MEDIA 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 2OCEANSVIBE MEDIA or any of its Affiliates.
  • When applicable, Third Party Ad Server tags shall be implemented so that they are functional in all aspects.
  • If Advertising Materials delivered via Third Party Ad Server are damaged, not compliant with 2OCEANSVIBE MEDIA’s specifications, or otherwise unacceptable, 2OCEANSVIBE MEDIA will immediately deactivate such Third Party Delivery and use commercially reasonable efforts to notify Advertiser within one business day of its actions and required correction to Third Party Delivery. Advertiser will be afforded corrective timelines.
  • 2OCEANSVIBE MEDIA, on one hand, and Advertiser, 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 T&C’s or an IO without the other’s prior written approval.
  • Advertiser hereby grants to 2OCEANSVIBE MEDIA and any 2OCEANSVIBE MEDIA entity required to distribute the advertisements as set out in the IO and T&C’s, a non-exclusive, worldwide, fully paid license to use, reproduce and display the advertisement (and the contents, trademarks, logo, trade name, domain name and brand features contained therein) for the purposes of fulfilling its obligations in respect of any IO.
  • Advertiser 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 Advertiser to 2OCEANSVIBE MEDIA for the purposes of the IO (alternatively that Advertiser is the duly authorized representative of such lawful owner) and hereby irrevocably and unconditionally indemnify 2OCEANSVIBE MEDIA and each Affiliate and hold 2OCEANSVIBE MEDIA 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 Advertiser to 2OCEANSVIBE MEDIA and/or otherwise relating to the Advertisements.
  • In the event that the Publisher provides incorrect Advertising specs for placements on their site, the Advertiser is entitled to seek compensation for any reasonable costs incurred in the resizing of the Advertising material.
• INDEMNIFICATION
  •  2OCEANSVIBE MEDIA agrees to defend, indemnify and hold harmless Advertiser, their Affiliates (as defined below) 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 a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of 2OCEANSVIBE MEDIA’s breach display or delivery of any Advertisement in breach of these T&C’s as read with the relevant IO, or that materials provided by 2OCEANSVIBE MEDIA (and not by Advertiser) for an Advertisement violate the rights 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 Advertiser’s unique specifications provided that 2OCEANSVIBE MEDIA shall only be liable to the Advertiser to the extent where Advertiser can show that  2OCEANSVIBE MEDIA knew or could reasonably have known that the specifications of an Advertisement would give rise to the Loss or violated any law, regulations or other judicial or administrative action or, violated the right of a Third Party or are defamatory or obscene.
  • Advertiser agrees to defend, indemnify and hold harmless 2OCEANSVIBE MEDIA, 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 Advertiser’s breach of this Agreement, violation of Policies (to the extent the applicable terms of such Policies have been provided to Advertiser at least 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 2OCEANSVIBE MEDIA in accordance with these T&C’s as read with the relevant IO, including but not limited to, 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: (i) 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 (ii) 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 12, 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.
• LIMITATION OF LIABILITY

Excluding the parties obligations under Clause 12 or damages that result from the intentional misconduct of a party, 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 T&C’s, even if such party has been advised of the possibility of such damages.

• 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.

• THIRD PARTY AD SERVERS (Applicable if 3rd Party Server Is Used)
  • If 2OCEANSVIBE MEDIA Online has approved the (i) use by Advertiser of a third party ad server; or (ii) Advertiser serving its own advertisements (both referred to as “Third Party Server”) in connection with this IO, the following provisions shall also apply:
    • The Advertiser shall post each advertisement to a staging area and shall notify 2OCEANSVIBE MEDIA of such posting at least four (4) business days prior to the date on which Third Party Server is scheduled to serve such advertisement to a 2OCEANSVIBE MEDIA property. Such advertisement shall be reviewed by 2OCEANSVIBE MEDIA and must be approved in writing by 2OCEANSVIBE MEDIA before it can be served by Third Party Server. In accordance with these T&C’s, 2OCEANSVIBE MEDIA reserves the right to reject any advertisement or any element thereof, for any reason in its sole discretion.
    • The Advertiser shall post all scheduling changes, new target URLs, new HTML specifications, new graphics and all other new or revised advertisements (“Revisions”) to a staging area and shall notify 2OCEANSVIBE MEDIA of such posting at least four (4) business days prior to the date Advertiser wishes such Revisions to take effect. Revisions shall not be implemented until approved by 2OCEANSVIBE MEDIA in writing, which approval shall be at 2OCEANSVIBE MEDIA ‘s sole discretion.
    • If Advertiser discovers that Advertiser or Third Party Server has served, or caused to be served, an advertisement to a 2OCEANSVIBE MEDIA property in violation of this Agreement, Advertiser must immediately provide notice to 2OCEANSVIBE MEDIA of the violation (along with a written explanation) and remove the advertisement from its placement or rotation on the 2OCEANSVIBE MEDIA properties. Nothing in this Section shall limit any of 2OCEANSVIBE MEDIA’s right or remedies in the event of such breach.
    • In the event 2OCEANSVIBE MEDIA exercises its right to cancel an advertisement in accordance with these T&C’s hereof, 2OCEANSVIBE MEDIA shall notify Advertiser in writing. The Advertiser must cause the advertisement to be removed from the 2OCEANSVIBE MEDIA properties and from its advertising rotation no later than four (4) hours after written notification by 2OCEANSVIBE MEDIA.
    • 2OCEANSVIBE MEDIA will track delivery through its ad server and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server whose identity is set forth in the IO. Advertiser may not substitute the 3rd Party Ad Server specified in the IO without 2OCEANSVIBE MEDIA’s consent. Advertiser and 2OCEANSVIBE MEDIA agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that 2OCEANSVIBE MEDIA’s ad server measurements are higher than those produced by the Advertiser’s 3rd Party Ad Server by more than 10% over the invoice period, Advertiser will facilitate a reconciliation effort between 2OCEANSVIBE MEDIA and 3rd Party Ad Server. If the discrepancy cannot be resolved and Advertiser has made a good faith effort to facilitate the reconciliation effort, the Advertiser shall be entitled to either:

(i) Consider the discrepancy an under-delivery of the Deliverables as described in the IO whereupon the parties shall act in accordance with that Clause, including the requirement that Advertiser and 2OCEANSVIBE MEDIA make an effort to agree upon the conditions of a makegood flight, except that for purposes of this Clause 15.1, delivery of any makegood shall be measured by the 3rd Party Ad Server, or
(ii) Pay 2OCEANSVIBE MEDIA based on Advertiser 3rd party Ad Server reported data, plus a 10% upward adjustment to delivery. The following third party Ad Servers are recognized: _________________________________________________Publisher will not bonus more than 10% above the deliverables specified in the IO without written consent from Agency. Publisher shall be held responsible for all applicable incremental ad serving charges incurred by Agency associated with over delivery by more than 10% where not approved by Agency.

• Where an Advertiser is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the Advertisement, the Advertiser shall have a one-time right to temporarily suspend delivery under the 10 for a period of up to 72-hours. Upon written notification by Advertiser of a non-functioning 3rd Party Ad Server, 2OCEANSVIBE MEDIA has 24 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Ad that runs within the immediate 72-hour period thereafter until 2OCEANSVIBE MEDIA is notified that the 3rd Party Ad Server is able to serve Ads. After the 72-hour period passes and Advertiser has not provided written notification that 2OCEANSVIBE MEDIA can resume delivery under the IO, Advertiser will pay for the Ads that would have or are run after the 72 hour period but for the suspension and can elect 2OCEANSVIBE MEDIA to serve Ads until 3rd Party Ad Server is able to serve Ads. If Advertiser does not so elect for “2OCEANSVIBE MEDIA” to serve the Ads until 3rd Party Ad Server is able to serve Ads, 2OCEANSVIBE MEDIA may utilize the inventory that would have been otherwise used for 2OCEANSVIBE MEDIA’s own advertisements or advertisements provided by a third party Upon notification that the 3rd Party Ad Server is functioning, 2OCEANSVIBE MEDIA will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in 2OCEANSVIBE MEDIA owing a makegood to Advertiser.
• Usage
  • Unless specified in the IO and without prejudice to 2OCEANSVIBE MEDIA, 2OCEANSVIBE MEDIA makes no guarantees with respect to usage statistics or levels of impressions, page views, click-throughs or other similar statistics whatsoever (collectively, “statistics”) for any advertisement. Advertiser acknowledges that delivery statistics provided by 2OCEANSVIBE MEDIA are the official, definitive measurements of 2OCEANSVIBE MEDIA’s performance on any delivery obligations provided in the IO. No other measurements or usage statistics (including those of Advertiser or a third party ad server) shall be accepted by 2OCEANSVIBE MEDIA or have bearing on the IO. Advertiser further acknowledges that all statistics provided by 2OCEANSVIBE MEDIA in relation to its advertising products and services are purely estimates and should not be detrimentally relied on. Accordingly, 2OCEANSVIBE MEDIA makes no representation, warranty or guarantee with respect to such statistics whatsoever or with respect to their accuracy or the method used to derive them.
  • Except as expressly set forth in the IO, any renewal of the IO and acceptance of any additional advertising order shall be at 2OCEANSVIBE MEDIA’s sole discretion. Pricing for any renewal period is subject to change by 2OCEANSVIBE MEDIA from time to time.
  • No Assignment or Resale of Ad Space. Advertiser may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall result in immediate termination of this contract, without liability to 2OCEANSVIBE MEDIA.
• MISCELLANEOUS
  • Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in their Advertisements and Advertising Materials.
  •  Advertiser 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 “2OCEANSVIBE MEDIA”‘s prior written approval will be null and void. All terms and provisions of these T+C’s and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
  • These T&C’s and the related IO 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 IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.
  • All IO’s shall be governed by the laws of the Republic of South Africa. 2OCEANSVIBE MEDIA and Advertiser (on behalf of itself and not Advertiser) agree that any claims, legal proceeding or litigation arising in connection with the IO (including these T&C’s) will be brought solely in the Republic of South Africa, and the parties consent to the jurisdiction of such courts. No modification of these T&C’s or any IO 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 three days after deposit in SA postal mail, return receipt requested, one business day if sent by overnight courier service and immediately if sent electronically or by fax. All notices to 2OCEANSVIBE MEDIA and Advertiser shall be sent to the contact as noted in the IO. All notices to Advertiser shall be sent to the address specified on the IO.
  • Clauses shall survive termination or expiration of these T&C’s. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.