TERMS AND CONDITIONS

 

 

THESE TERMS AND CONDITIONS ARE EFFECTIVE AS OF JANUARY 2025 .

 

READ THESE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS, READ TOGETHER AND SPECIFICALLY INCORPORATING THE PROVISIONS CONTAINED IN THE INVOICE, RECORD THE AGREEMENT BETWEEN THE PARTIES.  ALL SECTIONS OF THESE TERMS AND CONDITIONS ARE APPLICABLE TO THE SPONSORS UNLESS THE SECTION EXPRESSLY STATES OTHERWISE.

 

 

1.          INTERPRETATION

 

1.1.      In this Agreement and in the annexures to this Agreement clause headings are for convenience and are not to be used in its interpretation, and unless the context indicates a contrary intention an expression which denotes:

 

1.1.1.         Any gender includes the other gender;

 

1.1.2.         A natural person includes a juristic person and vice versa;

 

1.1.3.         The singular includes the plural and vice versa.

 

1.2.      In this Agreement, and in the annexures hereto, the following expressions bear the meanings assigned to them below and cognate expressions bear corresponding meanings:

 

1.2.1.         “Advertising” shall mean the various methods of advertising made available to the Sponsor on the Podcast as more fully set out in clause 5 hereunder;

 

1.2.2.         “Agreement” shall mean the Invoice read together with and specifically incorporating these Terms and Conditions, together with any annexures attached hereto;

 

1.2.3.         “Commencement Date” shall mean the commencement date as recorded in the Invoice, being the date upon which the first episode of the Podcast will be launched;

 

1.2.4.         “Intellectual Property“ means all present and future rights in the Podcast and other rights which may in the future be based thereon, including but not limited to copyrights, trademarks, patents, designs, trade secrets, confidential information, source code, whether registered or not, and all other rights of whatsoever nature in and to the Podcast;

 

1.2.5.         “Invoice” means the invoice sent by the Partner to the Sponsor, recording, amongst other things, the Sponsor’s details, Commencement Date, payment amount and payment terms;

 

1.2.6.         “Partner” shall mean the Honest Money Partner, a Partner constituted by a Partner agreement in terms of the laws of the Republic of South Africa, and having its principle place of business at Fountain Grove Office Park, 5 Second Road, Hyde Park, Johannesburg, and email address steve@digidorx.co.za;

 

1.2.7.         “Party” or “Parties” mean the Partner and the Sponsor, or both, as the context implies;

 

1.2.8.         “Platforms” shall mean collectively The Honest Money Twitter account, LinkedIn page, WhatsApp Broadcast List, Email Newsletter and Website (www.honestmoney.co.za), being the mediums and resources through/from which the Podcast will be hosted and accessed;

 

1.2.9.         “Podcast” shall mean the season of the audio podcast show entitled “Honest Money”, which shall comprise of 12 (twelve) episodes; and

 

1.2.10.      “Sponsor” shall mean the Party, other than the Partner, whose details are as recorded on the Invoice.

 

1.3.      If any provision is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect will be given to it as if it were a substantive provision in the body of the Agreement.

 

1.4.      Words and expressions defined in any clause shall, for the purpose of that clause, bear the meaning assigned to such words and expressions in such clause.

 

1.5.      Where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day.  If the last day of such number so calculated falls on a day which is not a business day, the last day shall be deemed to be the next succeeding day which is a business day;

 

1.6.      Any reference to days (other than a reference to business days), months or years shall be a reference to calendar days, months or years, as the case may be.

 

1.7.      The rule of interpretation that, in the event of ambiguity, the contract must be interpreted against the party responsible for the drafting of the contract, shall not apply.

 

1.8.      The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.

 

2.             INTRODUCTION

 

2.1.      It is recorded that:

 

2.1.1.         The Partner has agreed to engage with the Sponsor, with the Partner producing a Podcast for distribution on the Platforms, and the Sponsor sponsoring same, subject to the terms and conditions contained in the Agreement; and

 

2.1.2.         The Parties wish to conclude this Agreement by way of formalising such Agreement on the terms and conditions stated herein.

 

3.             DURATION AND TERMINATION

 

3.1.      Unless terminated early in accordance herewith, the Agreement shall be deemed to commence on the date the Sponsor accepts the Invoice, and shall endure from such date until 12 (twelve) months following the Commencement Date, or until all amounts owing to the Partner in terms of clause 8 below have been paid in full, whichever is the latter, or until either Party terminates the Agreement in accordance with the provisions of the Agreement.

 

3.2.      Notwithstanding the provisions set out in clause 3.1 above, the Partner shall be entitled to terminate this Agreement forthwith on written notice to the Sponsor should the Sponsor breach any material term of this Agreement.

 

3.3.      Further to the above, and upon termination of this Agreement for any reason whatsoever, ownership of the Podcast and the Intellectual Property comprising same, shall remain vested in the Partner, and the Sponsor shall not have any claim thereto of any nature whatsoever.

 

4.             ROLE OF THE PARTNER

 

4.1.      The Partner shall attend to the production of the Podcast.

 

4.2.      All costs relating to the production of the Podcast shall be paid for by the Partner.

 

4.3.      The Sponsor shall be acknowledged during the Podcast as being the official Sponsor of same and shall have the opportunity to avail itself of Advertising during the Podcast, in accordance with clause 5 below.

 

4.4.      For the duration of this Agreement, at the end of each calendar month, the Partner will provide the Sponsor with a status report in respect of the performance of the Podcast episodes and the respective social media content.  

 

5.             ADVERTISING

 

5.1.      The Sponsor shall be entitled to have its branding included:;

 

5.1.1.         On the Podcast website under the blog (every second week)  (www.honestmoney.co.za);

 

5.1.2.         On the podcast’s top and tail (every second week)  ;

 

6.             CONTENT

 

6.1.      All Podcast episodes featuring a Sponsor guest episode shall be sent to the Sponsor by the Partner for approval or refusal at least 7 (seven) days prior to the episode going live.

 

6.2.      In the event that the Sponsor fails to respond within the 7 (seven) days period, the Partner shall deem this to infer that the Sponsor approves of such episode and same shall be broadcasted.

 

7.             BROADCASTING OF THE PODCAST

 

7.1.      The Partner shall, together with the Sponsor, distribute the Podcast on their respective websites, social media platforms, and databases as they deem fit. 

 

7.2.      A Podcast episode shall be aired every Saturday for the duration of this Agreement, and as mentioned in the Agreement.

 

7.3.      To the extent that the dates of episode releases may vary to some extent from what is recorded in clause 7.2 above, same shall not be regarded as a breach by the Partner of this Agreement.

 

7.4.      Either one or both of the Parties shall have the right to promote the Podcast to third parties, and in this regard no permission shall be required from the other to do so.

 

8.             COST AND PAYMENT TERMS

 

8.1.      The cost as payable by the Sponsor to the Partner in respect of the Agreement shall be the amount was recorded on the Invoice.

 

8.2.      The above-referred amount shall be payable in accordance with the payment terms recorded on the Invoice.

 

9.             EXCLUSIVITY

 

9.1           The Sponsor understands and agrees that it may not be the sole financial industry sponsor of the Podcast, and the Partner shall have the right to approach and/or engage with any third party within the financial sector to offer them an opportunity to co-sponsor the Podcast/Website for the duration of the Agreement.

 

9.2           The Partner reserves the right to approach or be approached by any other sponsors (not within the financial industry) during the Agreement to co-sponsor the Podcast, this will be conveyed in writing to the Sponsor to let it know about a co-sponsorship.

 

10.            INTELLECTUAL PROPERTY RIGHTS

 

10.1        The Sponsor acknowledges that any and all Intellectual Property used or embodied in or    in connection with the Podcast as produced by the Partner are and will remain the sole property of the Partner, and nothing herein shall be construed as having transferred any Intellectual Property rights to the Sponsor.

 

10.2        The Sponsor agrees that the Sponsor is hereby ceding and assigning to the Partner, all copyright in respect of all works of which the Sponsor, or any of the Sponsor’s employees (where applicable), will be the author or joint author of.  All such works shall be deemed to have been written or produced by the Partner or the Partner’s employees (if applicable) while in the course and scope of the production of the Podcast unless prior written approval to the contrary is obtained from the Partner.

 

10.3        To the extent that any trade marks, get-up and/or branding are utilised in the production of the Podcast belonging to the Sponsor, which can clearly not be construed as that belonging to the Partner, such trademarks, get-up and/or branding shall remain the property of the Sponsor.

 

11.         LIMITED WARRANTY

 

11.1.   Except as expressly provided in this clause no warranty, condition, undertaking or term, express or implied, as to the condition, quality, performance, merchantability or fitness for a particular purpose of the Podcast, or any part thereof shall be assumed by the Partner, or that the Podcast is free from defects or error, and all such warranties, conditions, undertakings and terms are hereby excluded.

 

 

12.         INDEMNITIES AND LIABILITY

 

12.1.   The Sponsor hereby indemnifies and holds the Partner harmless against all claims, demands, fines, penalties, actions, injury to person or property, proceedings, judgements, damages, losses, costs, expenses, or other liabilities of whatsoever nature caused, whether arising at common law or by statute, by the Sponsor, the Partner or otherwise, arising as a result of the Sponsor’s negligence, gross negligence or wilful misconduct.

 

12.2.         Notwithstanding any other provision in this Agreement, in no event shall either Party be liable for any incidental, indirect or consequential loss or damages of whatever nature arising out of the production or content of the Podcast.

 

13.         DISPUTE RESOLUTION AND ARBITRATION

 

13.1.         Save as otherwise contained herein, should any dispute arise between the Parties in connection with this Agreement, the Parties shall attempt on the basis of good faith to settle such dispute by way of negotiation.

 

13.2.         If either Party provides written notification to the other that such attempt has failed then each Party shall attempt to agree upon the appointment of a suitably qualified mediator, within 10 (ten) days of such dispute being referred.

 

13.3.         If agreement is not reached as to the appointment of such mediator within 10 (ten) days after either Party has in writing called for the appointment of a mediator, or where an appointment has been agreed upon and such mediator is not able to mediate a resolution of such dispute within 30 (thirty) days after such appointment then either Party may give written notice to the other Party referring the dispute to arbitration in accordance with the provisions of this clause 13 (“Arbitration Notice”).

 

13.4.         The arbitration shall be:

 

13.4.1.      held within the jurisdiction of Johannesburg;

 

13.4.2.      conducted in the English language;

 

13.4.3.      held before a single arbitrator;

 

13.4.4.      subject to the provisions of this clause 13, conducted in accordance with the Arbitration Foundation of Southern Africa (AFSA) Rules; and

 

13.4.5.      held as soon as is reasonably practicable in the circumstances and with a view to it being completed within 30 (thirty) Business Days of the date of the Arbitration Notice.

 

13.5.         The arbitrator shall be if the question in issue is:

 

13.5.1.      primarily an accounting matter an independent accountant with no less than 10 (ten) years’ experience agreed upon between the Parties; or

 

13.5.2.      primarily a legal matter, an independent practising advocate with no less than ten years’ standing agreed upon between the Parties; and

 

13.5.3.      any other matter a suitably qualified independent person agreed upon between the Parties.

 

13.6.   If the Parties cannot agree upon a particular arbitrator under the provisions of clause 13.5 above within 7 (seven) business days after the arbitration has been demanded, the nomination shall be made by the president for the time being of the Arbitration Foundation of Southern Africa (AFSA) within 7 (seven) days after the Parties have so failed to agree.

 

13.7.         The arbitrator shall determine which Party shall pay the costs of and incidental to the arbitration or, if more than 1 (one) Party is to contribute, the ratio of their respective contributions, and the scale on which such costs are to be paid.

 

13.8.         Subject to each Party’s rights of appeal in accordance with the AFSA Rules, the Parties irrevocably agree that the decision of the arbitrator shall be final and binding on them, shall be carried into effect, and shall be capable of being made an order of any court of competent jurisdiction.

 

13.9.          The provisions of this clause 13:

 

13.9.1.      constitute irrevocable consent by the parties to any proceedings in terms of this clause 13 and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions;

 

13.9.2.      are severable from the rest of this Agreement and shall remain in effect despite the termination, or invalidity for any reason, of this Agreement; and

 

13.9.3.      shall not preclude any Party from obtaining interim relief on an urgent basis from any court of competent jurisdiction pending the decision of the arbitrator.

 

13.10.      This clause shall be severable from the rest of this Agreement and therefore shall remain effective between the Parties after this Agreement has terminated.

 

14.         BREACH

 

14.1.   Subject to clause 14.2 below, should any Party breach any of its obligations in terms hereof and persist in such breach for a period of fourteen (14) days after written notice will have been given to it by the other Party, the aggrieved Party shall be entitled without prejudice to any rights which it may have in terms hereof or at law, to:

 

14.1.1.      an order for specific performance and damages; or

 

14.1.2.      cancel this Agreement and claim damages.

 

14.2.   Notwithstanding anything to the contrary contained in clause 14.1 above, the Parties agree that no Party shall be entitled to cancel this Agreement unless the breach complained of is a material breach going to the root of the Agreement and is incapable of being remedied by the payment of monetary compensation or otherwise or if so capable of being remedied, the defaulting Party fails so to remedy the breach within the fourteen (14 ) day period referred to above. If any dispute shall arise as to whether:

 

14.2.1.      any breach is a material breach which goes to the root of the Agreement; or

 

14.2.2.      the breach is incapable of being remedied by the payment of monetary compensation or otherwise; or

 

14.2.3.      if it is capable of being remedied by the payment of monetary compensation or otherwise, whether the defaulting Party has failed to do so timeously,

 

then such dispute shall be determined, mutatis mutandis, in accordance with the provisions of clause 13 above.

 

14.3.   All costs, charges and expenses of whatsoever nature which may be incurred by any Party in enforcing its rights in terms hereof including, without limitation, legal costs on the scale as between attorney and own client and collection commission, irrespective of whether any action has been instituted shall be recoverable from the Party against which such rights are successfully enforced.

 

15.         ADDRESSES AND NOTICES

 

15.1.   The Parties choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of this Agreement, as follows:

 

15.1.1.         the Partner at the address contained in clause 1.2.4 above; and

 

15.1.2.         the Sponsor at the address contained in clause 1.2.10 above.

 

15.2.   A Party may change its domicilium to any other physical address or email address by written notice to the other Party to that effect. Such change of address will be effective seven days after receipt of notice of change of domicilium.

 

15.3.   All notices to be given in terms of this Agreement will:

 

15.3.1.      be given in writing;

 

15.3.2.      be delivered by email, or sent by courier;

 

15.3.3.      if delivered by email, be presumed to have been received on the first business day after dispatch;

 

15.3.4.      if delivered by courier, be presumed to have been received seven (7) days after dispatch;

 

15.4.   Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has been given in accordance with the provisions of this clause.

 

16.         WHOLE AGREEMENT

 

16.1.   This Agreement, together with the annexures, addendums and/or schedules referred to herein or therein, if applicable, constitute the entire agreement between the Parties in respect of the subject matter hereof.

 

17.         SURVIVAL

 

17.1.   All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, indemnification and limitation of liability, in addition to the other provisions which, by way of necessity are required to survive termination, shall survive the completion or termination of this Agreement.

 

18.         VARIATIONS

 

18.1.   No contract varying, adding to, deleting from or cancelling the Agreement, and no waiver of any right under the Agreement, shall be effective unless reduced to writing and signed by or on behalf of the Parties. Writing shall not be construed as email correspondence signed by means of email signatures.

 

19.         NON-WAIVER

 

19.1.   No Party shall be regarded as having waived, or be precluded in any way from exercising, any right under or arising from this Agreement by reason of such Party’s having at any time granted any extension of time for, or having shown any indulgence to another Party with reference to, any payment or performance hereunder, or having failed to enforce, or delayed in the enforcement of, any right of action against any other Party, unless reduced to writing and signed by both Parties.

            

20.         CESSION

 

20.1.   Notwithstanding anything contained in this Agreement, no Party shall be entitled to cede, assign or otherwise transfer their right, title and interest in and to this Agreement to any other Party.

 

21.         NON-REPRESENTATION

 

21.1.   The Parties acknowledge that in entering into and performing this Agreement they do not do so on the basis of, and do not rely on any statement or representation or warranty or understanding other than as expressly contained in this Agreement at the Effective Date.

 

22.         APPLICABLE LAW

 

22.1.   This Agreement shall be interpreted and implemented in accordance with the law of the Republic of South Africa.

 

23.         SEVERABILITY

 

23.1.   If any provision of this Agreement should be wholly or partly invalid, unenforceable or unlawful, then this Agreement shall be severable in respect of the provision in question (to the extent that it is invalid, unenforceable or unlawful) and the remaining provisions of this Agreement shall remain in full force and effect.