(Registration No 2005/021397/07)
(“SPROUT”) WHEREBY IT IS AGREED AS FOLLOWS:
1.1. In this AGREEMENT unless the text otherwise indicates, the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely:
1.1.1. “MEDIA INVENTORY” means the advertising space and or unit(s) purchased by SPROUT through their respective MEDIA BUYING PLATFORMS AND / OR LICENSES;
1.1.2. “MEDIA COST” means the net cost of media excluding AGENCY REMUNERATION and or taxes.
1.1.3. “ADVERT” the graphical notice or announcement promoting a product or service;
1.1.4. “CAMPAIGN” means a CLIENT commissioned MEDIA INVENTORY purchase;
1.1.5. “MEDIA BUYING PLATFORM” means the programmatic and or media buying technology platforms used to purchase media by SPROUT;
1.1.6. “DOUBLECLICK DIGITAL CAMPAIGN MANAGER” means the tracking/ ad serving platform that Sprout uses to track impressions, clicks and attribution of various channels to total number of conversions and deduplication of conversions;
1.1.7. “DOUBLECLICK BID MANAGER” is the preferred display media buying platform or demand-side platform that Sprout uses to purchase display impressions via ad exchanges;
1.1.8. “DOUBLECLICK SEARCH” is the technology that Sprout uses to optimise paid search campaigns across various search engines and or uses to connect the search channel (Adwords) to other channels (like display and email) via DOUBLECLICK DIGITAL CAMPAIGN MANAGER;
1.1.9. “AGREEMENT” means this PERFORMANCE MEDIA PARTNERS
SERVICES AGREEMENT and the annexures hereto;
1.1.10. “EFFECTIVE DATE” means [DATE];
1.1.11. “FORCE MAJEURE EVENT” means any event which affects the performance by a party of its obligations under this AGREEMENT and arises directly from an act of God, local government or government, war, fire, flood, earthquake, storm, act of terrorism, explosion, civil commotion, industrial dispute or the like;
1.1.12. “CLIENT” means [CLIENT DETAILS] (Registration No.);
1.1.13. “SPROUT” means Sprout Performance Partners (PTY) Ltd (Registration No 2005/021397/07);
1.1.14. “AD SERVING” means the technology the delivers and records the ADVERT on the MEDIA INVENTORY.
1.1.15. “PARTIES” means the PARTIES to the AGREEMENT;
1.1.16. “PARTY” means individually SPROUT or CLIENT;
1.1.17. “SEA” means search engine advertising and includes but is not limited to pay per click advertising and paid search;
1.1.18. “SEO” means search engine optimisation;
1.1.19. “INITIAL TERM” means 12 (twelve) months reckoned from the EFFECTIVE DATE and terminating on the first anniversary of the EFFECTIVE DATE;
1.1.20. “AGENCY REMUNERATION” means a percentage of the MEDIA COST price accrued as fees in remittance of services;
1.1.21. “CAMPAIGN AUDITING FEES” means the cost of advertising creative auditing through the respective MEDIA BUYING PLATFORMS if relevant;
1.1.22. “SERVICES” means DIGITAL MEDIA AGENCY SERVICES;
1.1.23. “DIGITAL MEDIA AGENCY SERVICES” means the services rendered by a digital media agency including but not limited to the execution, management and optimization of display media buying, SEA, SEO and tracking;
1.1.24. “PROJECT MANAGEMENT HOURS” means the time spent by SPROUT consultants in fulfilment of project management and or time-related services, where relevant, including but not limited to affiliate management, technical consulting, search engine optimization, product consulting and research;
1.1.25. “AD OPERATIONS MANAGEMENT” means the time spent by SPROUT ad operations staff in fulfilment of ad operations and ad trafficking functions including but not limited to campaign and creative trafficking, tag generation, campaign troubleshooting and tag implementation.
1.1.26. “RETAINERS” means a lump sum payment in fulfilment of a commissioned project including but not limited to SEO related commissioned projects;
1.1.27. “MISCELLANEOUS PROJECT RELATED EXPENSES” means expenses born from PROJECT MANAGEMENT HOURS, not in direct payment of the time or associated media costs;
1.1.28. “GOOGLE” means the holding company Google Inc. of which DOUBLECLICK is a subsidiary;
1.1.29. “USD” ($) means United States Dollars and is the currency in which GOOGLE invoices Sprout for use of technology (DOUBLECLICK DIGITAL CAMPAIGN MANAGER and DOUBLECLICK SEARCH). Sprout passes these fees on to its clients and invoices in South African Rand (ZAR) based on the current exchange rates against USD for that month.
1.2. The headings of the clauses in this AGREEMENT are for the purpose of convenience and reference only and shall not affect the interpretation of any of the provisions to which they relate, nor shall they be used to modify or amplify the terms of this AGREEMENT or any clause hereof.
1.3. Words importing any one gender shall be deemed not to be gender specific, the singular includes the plural and vice versa; and natural persons include created entities (incorporated or unincorporated), and the state, and vice versa.
1.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on a PARTY, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the AGREEMENT.
1.5. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
1.6. When any number of days is prescribed in this AGREEMENT, same shall be reckoned so as to exclude the first, and to include the last day, unless the last day falls on a Saturday, Sunday or a public holiday, and in the event of the last day falling on such a day, the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
1.7. Expressions defined in this AGREEMENT shall bear the same meanings in the annexures to this AGREEMENT unless otherwise defined.
2.1. CLIENT is a marketing and advertising division.
2.2. SPROUT is a specialist independent digital media buying agency and SEO practitioner.
2.3. SPROUT desires to offer DIGITAL MEDIA AGENCY SERVICES to the CLIENT and the CLIENT wishes to contract SERVICES from SPROUT.
2.4. CLIENT and SPROUT accordingly wish to enter into an AGREEMENT whereby SPROUT provides, as a service, DIGITAL MEDIA AGENCY SERVICES and related services.
3.1. Subject to the provisions of Clauses 3.2, 3.3, and Paragraph 10, this AGREEMENT shall endure for the INITIAL TERM.
3.2. This AGREEMENT shall be automatically renewed for a first RENEWAL TERM of twelve (12) months commencing on the first day after the elapsing of the INITIAL TERM, unless either PARTY notifies the other PARTY to the contrary, in writing, not less than ninety (90) days prior to the elapsing of the INITIAL TERM.
3.3 Subsequent twelve (12) month RENEWAL TERMS shall commence automatically on the first day after the elapsing of the previous RENEWAL TERM unless either PARTY notifies the other PARTY to the contrary, in writing, not less than ninety (90) days prior to the elapsing of that previous RENEWAL TERM.
The contents of Paragraph three (3) notwithstanding, either PARTY shall be entitled, at any time and for whatever reason, to terminate this AGREEMENT by giving not less than ninety (90) days written notice of said termination to the other PARTY.
5.1. All MEDIA INVENTORY purchased subject to AGENCY REMUNERATION fifteen (15) % calculated as a percentage of the MEDIA COST excluding relevant taxes, as per the ADDENDUM 1.
5.2. DOUBLECLICK SEARCH uses fees charged as three point zero (3.0) % of monthly MEDIA COST (Adwords budget) excluding relevant taxes and AGENCY REMUNERATION.
5.3. AD SERVING, where relevant, subject to the following fees: $0.15 CPM for impressions and $0.015 for clicks. SPROUT uses DOUBLECLICK CAMPAIGN MANAGER for all its tracking and ad serving.
5.4. PROJECT MANAGEMENT HOURS, where relevant, subject to the following fees: R750 per hour for a SPROUT project manager.
5.5. AD OPERATIONS MANAGEMENT, where relevant, subject to the following fees: R750 per hour for a SPROUT campaign manager.
5.6. CONSULTANCY, where relevant, subject to the following fees: R1,250 per hour for a SPROUT consultant.
5.7. RETAINERS, where relevant, calculated as an estimate of PROJECT MANAGEMENT HOURS, MEDIA COST and MISCELLANEOUS PROJECT RELATED EXPENSES.
5.8. AGENCY REMUNERATION additionally subject to the clauses within section six (6).
5.9. Our fees are based on the time spent on your campaigns by our campaign managers and the media we purchase on your behalf. These costs will be agreed with you before they are billed. Our fees will be billed at appropriate intervals during the course of the year and settlement is due on presentation of our invoices.
5.10. In the event that invoices are not settled within 30 days of presentation, we reserve the right to charge interest monthly at 2.5% above Standard Bank Prime Rate until the debt is settled.
6.1. CLIENT shall
6.1.1. authorise SPROUT’s use of all client logos, trademarks, website images, etc., for use in creating and using web resources including, but not limited to, web pages; and any other uses as deemed necessary by SPROUT, and agreed to by the CLIENT, for search engine marketing and optimisation;
6.1.2. Provide support to SPROUT in fulfilment of their DIGITAL MEDIA AGENCY SERVICES to the CLIENT;
6.1.3. provide SPROUT with current passwords and user IDs needed to gain remote access to the CLIENT campaigns;
6.1.4. pay SPROUT AGENCY REMUNERATION and fees on net thirty (30) days;
6.1.5. pay SPROUT RETAINERS a minimum of seven (7) days before commencement of activity;
6.1.6. pay MEDIA COST on net thirty (30) days;
6.1.7. pay interest on invoices that are late;
6.1.8. pay SPROUT by way of bank transfer in South African Rands (ZAR);
6.2. SPROUT shall –
6.2.1. provide all strategic, technical and reporting support to CLIENT in fulfilment of their DIGITAL MEDIA AGENCY SERVICES;
6.2.2. make DOUBLECLICK SEARCH available for all relevant CAMPAIGNS;
6.2.3. pay all vendor related MEDIA COST on behalf of client.
6.2.4. ensure AD SERVING is applied across all relevant CAMPAIGNS;
In no event shall 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 the terms of this AGREEMENT, even if such PARTY has been advised of the possibility of such damages.
It is acknowledged that in the performance of this AGREEMENT either of the PARTIES may obtain certain information which is proprietary to the other. Each PARTY undertakes to keep such information strictly confidential and not to use, make use of or disseminate it in any way unless necessary to discharge any obligations under this AGREEMENT. It is recorded here that the PARTIES may, under a separate agreement, more fully bind themselves to protecting information that is confidential or proprietary to either or both of the PARTIES.
The PARTIES shall, in their dealings with each other, display the utmost good faith and reasonableness and undertake to do all such things, perform all necessary acts, and procure the taking of all necessary steps (including signing all such other documents) as may be necessary, incidental and/or conducive to the giving effect to of the intention and import of this AGREEMENT.
If either PARTY commits a breach of any material provision or term of this AGREEMENT (other than those which contain their own remedies), and fails to remedy such breach within 7 (seven) days of receipt of written notice from the other PARTY requiring it to do so, then the aggrieved PARTY shall be entitled without notice, in addition to any other remedy available to it in law or under this AGREEMENT, including obtaining an interdict, to cancel this AGREEMENT or to claim specific performance of any obligation, whether or not the due date for performance has arrived, in either event without prejudice to the aggrieved PARTY’s right to claim damages.
11.1. In the event of any dispute arising out of or relating to this AGREEMENT, or the breach, termination or invalidity thereof, then either PARTY may give written notice to the other PARTY to initiate the procedure set out below.
11.2.1. The PARTIES shall first endeavour to settle the dispute by mediation.
The PARTIES may establish and agree on a mediation procedure, and agree on the mediator, but failing agreement within 5 (five) days of the notice referred to in Clause 11.1, the mediation process between the PARTIES shall take place in accordance with the rules in force at the time of the Arbitration Foundation of Southern Africa (“AFSA”) and the mediator shall be appointed by the Chairman of AFSA.
11.2.2. If for any reason, including through lack of cooperation by the PARTIES, a dispute is not settled by mediation within 10 (ten) days of the notice referred to in Clause 11.1 or such different period of time as the PARTIES may agree amongst themselves in writing, the dispute shall be settled by arbitration.
11.3.1. In the event of the PARTIES being unable to resolve their dispute through negotiation or mediation proceedings as contemplated above, any PARTY may initiate arbitration proceedings by delivering a written notice to the other PARTY of such intention.
11.3.2. The PARTIES may establish and agree on an arbitration procedure, and agree on the arbitrator, but failing agreement within five (5) days of the notice in Clause 0, the arbitration shall be conducted in accordance with the rules of the South African Chartered Institute of Arbitrators in force at the time of the dispute.
11.3.3. Unless agreed otherwise, the arbitration shall be administered by the PARTIES.
11.3.4. The appointing authority shall be the Arbitration Foundation of Southern Africa.
11.3.5. The number of arbitrators shall be one and the decision of the arbitrator shall be final and binding on the PARTIES.
11.3.6. The place of arbitration shall be Cape Town, South Africa.
11.3.7. The arbitration shall be conducted in English.
11.3.8. Nothing in this Clause 11 shall preclude any PARTY from seeking interim and/or urgent relief from a Court of competent jurisdiction.
12.1. Neither PARTY will be liable to the other for any delay or nonperformance of its obligations under this AGREEMENT to the extent it arises from a Force Majeure Event subject to the affected PARTY:
12.1.1. Promptly notifying the other PARTY in writing of the cause of the delay or nonperformance and the likely duration of the delay or nonperformance; and
12.1.2. Using its best endeavours to limit the effect of the delay or nonperformance on the other PARTY.
12.2. If performance is not resumed within 14 (fourteen) days after the occurrence of the Force Majeure Event, either PARTY may terminate this AGREEMENT immediately by written notice to the other.
13.1. The PARTIES choose as their domicilia citandi et executandi for all purposes under this AGREEMENT, whether in respect of court process, notices or other documents or communications of whatsoever nature the following addresses-
13.1.1. For SPROUT –
PHYSICAL: A205/A206 Woodstock Exchange, 66 Albert Road, Woodstock, Cape Town, 7925
POSTAL: PO Box 50856, Waterfront, Cape Town, 8002
E-MAIL: [email protected]
13.2. Any notice or communications required or permitted to be given in terms of this AGREEMENT shall be valid only in writing but it shall be competent to give notice by telefax or by e-mail.
13.3. Either PARTY may by notice to the other PARTY change the physical address chosen as its domicilium citandi et executandi vis-à-vis that PARTY to another physical address or its telefax number or email address, provided that the change shall become effective vis-à-vis that addressee on the 7th (seventh) day from the deemed receipt of the notice by the addressee.
13.4. Any notice to a PARTY
13.4.1. Sent by prepaid registered post in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to have been received on the 7th (seventh) day after posting (unless the contrary is proved);
13.4.2. Delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
13.4.3. Sent by telefax or e-mail to its chosen telefax number or e-mail address stipulated in Clause 13.1 shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
13.5. 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.
14.1. Each PARTY hereby irrevocably and unconditionally undertakes in favour of the other PARTY that it shall not circumvent, avoid, bypass or obviate the terms and conditions contained in this AGREEMENT, nor attempt to do so, for any purposes whatsoever.
14.2. Neither PARTY shall during this AGREEMENT, or within 12 (twelve) months of its termination, engage, employ or otherwise solicit for employment, whether directly or indirectly, any person who during the currency of this AGREEMENT was employed by the other PARTY and any breach of this clause shall entitle the non-breaching PARTY, in addition to any other remedies that it may have in law, to payment of liquidated damages calculated as the equivalent of 6 (six) months remuneration at such person’s last remuneration level.
All fees, charges or other consideration recorded in this AGREEMENT are recorded exclusive of Value Added Tax (VAT) which shall be applied at the applicable rate from time to time for South African based CLIENTS.
16.1. This AGREEMENT constitutes the whole agreement between the PARTIES relating to the subject matter hereof and supersedes any other agreement concluded between them.
16.2. No addition to, variation or agreed cancellation of this AGREEMENT shall be binding upon the PARTIES unless reduced to writing and signed by or on behalf of the PARTIES.
16.3. No extension of time, waiver or relaxation of any terms of this AGREEMENT shall operate as an estoppel against any PARTY in respect of its rights under this AGREEMENT, nor shall it operate so as to preclude such PARTY thereafter from exercising its rights strictly in accordance with this AGREEMENT.
16.4. No PARTY shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein, whether it induced this AGREEMENT and/or whether it was negligent or not.
16.5. In the event that any of the terms of this AGREEMENT are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
16.6. The successful PARTY to any litigation between the PARTIES shall be entitled to recover, from the other PARTY, any and all legal costs incurred by it in enforcing its rights herein on an attorney/own client scale.
16.7. This AGREEMENT shall be governed by, construed and interpreted in accordance with the laws of the Republic of South Africa save that the contra proferentem rule whereby an ambiguity may be interpreted against the PARTY responsible for its drafting shall be excluded from the interpretation hereof.
16.8. The termination, cancellation or expiry of this AGREEMENT shall not affect the enforceability of the terms which are intended to and/or which of necessity must operate after expiry or termination.
16.9. The PARTIES agree that their relationship shall be that of arm’s length independent contracting PARTIES and that nothing in this AGREEMENT shall be interpreted as creating or any joint venture, agency, partnership or employment relationship between them and that save as expressly provided for herein, neither PARTY shall be permitted to bind the other PARTY to any third party.