STER-KINEKOR SALES GENERAL T'S & C'S
A. STER-KINEKOR SALES has the rights to sell advertising space in certain specified cinemas throughout South Africa and Zambia.
B. The Advertiser wishes to advertise at the cinemas to this end, STER-KINEKOR SALES has agreed to procure, organize and co-ordinate (“the Service”) the advertising and promotion specified by the Advertiser in the Cover Sheet hereto.
C. Accordingly, the Advertiser appoints STER-KINEKOR SALES to perform the Service on the terms set out in this Agreement, and STER-KINEKOR SALES accepts such appointment.
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, the following words and phrases shall have the meaning assigned to them hereunder-
1.1.1. “Advertisements” means the advertisements purchased by the Advertiser, as set out in detail in the Cover Sheet, and “advertising” shall have a corresponding meaning;
1.1.2. “Advertiser” means the party set out in the cover sheet to which these Terms and Conditions are attached;
1.1.3. “The Agency” means the advertising agency reflected in the Cover Sheet to which these Terms and Conditions are attached;
1.1.4. “ the / this Agreement” means the Cover Sheet, these Terms and Conditions, the Credit Application and all annexures attached hereto from time to time;
1.1.5. “Movie Clock” means Public announcement.
1.1.6. “STER-KINEKOR THEATRES” means STER-KINEKOR SALES
1.1.7. “commencement date” means the date set out in the Cover Sheet to which these Terms and Conditions are attached;
1.1.8. “Cover Sheet” means the cover sheet containing the specifics of the advertising required by the Advertiser, to which cover sheet these Terms and Conditions are attached as Annexure “A”;
1.1.9. “Credit Application” means the credit application form attached to the Agreement as Annexure “B”;
1.1.10 “Cinema Foyer Advertising” means Advertising that will be displayed via the cinema foyer;
1.1.11. “On-Screen Advertising” means Advertising that will be displayed via digital, 3D and digital projectors. Golden Reel advertising or regular on-screen advertising that displays immediately prior to the relevant cinema performance; and
1.1.12. “Terms and Conditions” means the terms and conditions contained in this Annexure “A”.
1.2. Words and phrases defined in the Cover Sheet shall bear the same meanings throughout this Agreement.
1.3. In the event that the terms and conditions of any annexure conflict with the provisions of these terms and conditions, the provisions of these Terms and Conditions shall apply.
2. DURATION
The Agreement shall commence on the commencement date indicated in the Cover Sheet and remain in force for a period of 12 months (the initial period) or the shorter period stipulated in the Cover Sheet, during which period neither party may cancel this Agreement except as otherwise provided herein, provided that STER-KINEKOR SALES shall be entitled to terminate this Agreement on no less than 30 days’ prior written notice being given to the Advertiser. The Advertiser shall have the right to negotiate for renewal of the agreement by giving notice in writing to such effect to STER-KINEKOR SALES not later than three months prior to the expiry of the initial period. Notwithstanding anything to the contrary, this Agreement shall terminate forthwith on the termination for any reason of STER-KINEKOR SALES’s agreement with the cinemas in which the Advertiser wishes to advertise in terms of this Agreement, or if any matter arises which was not reasonably foreseen by either party and which matter occurs after the commencement of this Agreement, where such matter renders the existence of this Agreement commercially unworkable for that party, acting reasonably.
3. PERIOD OF DISPLAY
The Advertiser has selected the advertising media stipulated in the Cover Sheet. The Advertiser acknowledges that STER-KINEKOR SALES shall be entitled to improve the Service within the general parameters of the advertising media chosen by the Advertiser.
STER-KINEKOR SALES shall, or shall procure that the Service falls within the parameters set out in the Cover Sheet in relation to, inter alia:
The period (the screening weeks) for which the Advertiser’s advertising will appear; the specific cinemas selected for the placement of the advertising; and the correct positioning of any other promotional materials to be displayed on, around or in the cinema foyers.
All advertising shall be booked based on screening weeks commencing on a Friday with the first of the performances on that day and ending 7 (Seven) days later on a Thursday at the end of the performances on that day (“screening week”), irrespective of what type of advertising the Advertiser has purchased, provided that the commencement and end of the screening week may be adjusted in STER-KINEKOR SALES’s sole discretion to coincide with amended film release days as determined by the relevant cinema exhibitor from time to time.
4. EXHIBITION
Unless stated to the contrary in the Cover Sheet, where the Advertising comprises On-Screen advertising, the relevant Advertisements shall be screened at all performances stipulated by the Advertiser in the Cover Sheet. In respect of all other chosen advertising media, those Advertisements shall be displayed for the period purchased by the Advertiser and specified in the Cover Sheet. To that end, STER-KINEKOR SALES shall procure that all advertising media are maintained in good order and condition. STER-KINEKOR SALES shall not be liable for any interruption in the display of any Advertisement arising out of the routine maintenance and/or renovation of the advertising sites from time to time, but shall endeavour to inform the Advertiser, to the extent that it is informed thereof, of any such maintenance and/or renovations.
5. PLACEMENT OF ADVERTISEMENTS
The Advertisements shall be placed in the position as purchased by the Advertiser, in all cinemas in which the Advertisement is screened, provided that, in the case of On-Screen Advertising, STER-KINEKOR SALES shall be entitled to shift the relevant Advertisement so that it is displayed closer in time to the main feature performance, in its discretion and without notice. The Advertiser shall be required to approve the weekly movie selector, as provided by STER-KINEKOR SALES to the Advertiser in writing, by no later than 15h00 on the Friday prior to the commencement of the forthcoming screening week in respect of each Advertisement.
The weekly movie line-ups (as communicated by the cinemas exhibitor to STER-KINEKOR SALES) shall be confirmed in writing by STER-KINEKOR SALES to the Advertiser by no later than the Thursday preceding the commencement of the relevant screening week in respect of each Advertisement. Notwithstanding anything to the contrary contained in this agreement, from time to time scheduling clashes may occur which would prevent STER-KINEKOR SALES from being able to comply with the scheduling requirements of the Advertiser as set out in the Cover Sheet. Accordingly, STER-KINEKOR SALES does not guarantee that the screening dates and times specified in the Cover Sheet will be adhered to. If for any reason whatsoever and Advertisement is either not screened during the period arranged, or screened so that a material part of the Advertisement is omitted, or screened containing a material error of any sort, or not screened at all due to transmission failure or any other cause, STER-KINEKOR SALES shall use all reasonable commercial endeavours to screen the Advertisements as close to the times and dates specified by the Advertiser as possible, or alternatively at its discretion to offer a screening of that Advertisement during another suitable time. STER-KINEKOR SALES shall not be liable to the Advertiser for any reason as a result of such rescheduling, which the Advertiser acknowledges is out of STER-KINEKOR SALES’s control, and the Advertiser shall have no further claims against STER-KINEKOR SALES as a result thereof, and shall remain liable to STER-KINEKOR SALES for all expenses already incurred by STER-KINEKOR SALES. In certain circumstances, where the distributor of a particular feature has stipulated, a particular trailer may be “hardlocked” to the main feature, meaning that no Advertisements may be screened between that trailer and the main feature. The Advertiser acknowledges that such “hard locking” is out of the control of STER-KINEKOR SALES, and, to the extent that the Advertiser has required a placement immediately before the relevant feature, STER-KINEKOR SALES shall procure that the particular Advertisement is displayed as close to that requested placement as possible.
6. CANCELLATION OF ADVERTISEMENTS
Should the Advertiser wish to cancel or suspend any particular On-Screen or Cinema Foyer Advertisement, the Advertiser shall be entitled to do so, on condition that it has provided to STER-KINEKOR SALES 6 (six) consecutive screening weeks’ prior to commencement date as stated on the first page of the contract, written notice of such cancellation or suspension. Upon cancellation or suspension, the Advertiser will be liable for payment of 80 % of the balance of the price specified in the Cover Sheet in respect of that cancelled or suspended Advertisement, as well as the full amount outstanding in respect of that Advertisement, together with all production costs incurred by STER-KINEKOR SALES in relation to that Advertisement.
7. MATERIAL AND DEADLINES
The Advertiser shall, unless otherwise agreed with STER-KINEKOR SALES, provide to STER-KINEKOR SALES all material that it requires to be displayed for its Advertisements within the time periods specified below. The Advertisement material must be in an appropriate format to allow for the screening and display of the Advertiser’s advertisement as specified in the Cover Sheet. All production costs shall be for the account of the Advertiser. In respect of digital material, that material shall be delivered by not less than 10 (ten) working days prior to the commencement of the first screening week in respect of that Advertisement; In respect of plasma material, that material shall be delivered by not less than 10 (ten) working days prior to the commencement of the first screening week in respect of that Advertisement; and In respect of all other promotional material, that material shall be delivered by not less than 14 (fourteen) working days prior to the commencement of the first screening week in respect of that Advertisement. In respect of all promotional advertising material that is not On-Screen Advertising, the Advertiser shall deliver an overprint of 30 % of the amount of material to be displayed by STER-KINEKOR SALES, for the purposes of replacing damaged, worn or stolen advertising material. Without limiting the aforegoing, all backlit posters shall be delivered to the relevant site on or before the 15th day of the month prior to the month during which the applicable Advertisements are to appear. If the screenings are scheduled for countries outside of South Africa, the relevant Advertising material shall be delivered to STER-KINEKOR SALES not later than twenty-one (21) business days prior to the first screening week for that Advertisement. In the event that the material is delivered after the deadline stipulated above, or in an appropriate format, STER-KINEKOR SALES shall be entitled to charge for the cost of the screening weeks missed as a result of the Advertiser missing the deadline, and the advertising time lost will not be carried over into the following month. The Advertiser indemnifies and holds STER-KINEKOR SALES harmless against any loss, costs or claims in relation to the resultant delay in showing the Advertisement required by the Advertiser.
The Advertiser acknowledges the risk inherent in conducting the promotional campaign in terms of this Agreement at the premises of the Exhibitor. Although STER-KINEKOR SALES will use reasonable efforts to ensure the safety and security of the Advertiser’s material, STER-KINEKOR SALES cannot be held liable for any loss arising in this regard, and the risk in relation thereto shall remain with the Advertiser. The Advertiser accordingly indemnifies and holds STER-KINEKOR SALES harmless against all claims, liabilities and damages that may be suffered in connection with or arising out of the theft fraud /or damage to the material, prints and/or property of the Advertiser, arising out of any cause whatsoever, save for where such theft and/or damage arises solely out of the gross negligence or willful default of STER-KINEKOR SALES.
8. OWNERSHIP
Ownership in and to the Advertisement and the advertising material shall vest in the Advertiser. In addition, all intellectual property rights in and to the advertising material shall vest in the Advertiser, and STER-KINEKOR SALES shall not acquire any rights in or to such material. Roller banner bases are and shall at all times remain the property of STER-KINEKOR SALES.
9. RATE CARD
The price payable by the Advertiser for the Services performed by STER-KINEKOR SALES in terms of this Agreement are those prices set out in the Cover Sheet. Those prices are calculated from the then applicable publicly available on STER-KINEKOR SALES’s rate card which rate card shall specify the rates applicable during peak seasons), and are based on information supplied at the time of going to print and STER-KINEKOR SALES shall not be liable for any errors or omissions contained therein. In respect of On-Screen Advertising, the rates charged are for Advertisements of up to a maximum of 30 seconds in duration. STER-KINEKOR SALES reserves the right to charge additional rates in respect of Advertisements that are of a longer duration.
10. PAYMENTS
10.1. Payment of STER-KINEKOR SALES’s account shall be made with 45 (forty-five) days of date of invoice where the Advertiser is a recognized STER-KINEKOR SALES accredited advertising agency, and 30 days for direct Advertisers unless otherwise indicated on the Cover Sheet.
10.2. All production invoices and billings to direct Advertisers are payable within 30 (thirty) days of invoice unless otherwise indicated in the Cover Sheet.
10.3. All payments shall be made to STER-KINEKOR SALES without deduction or set-off, and free of exchange.
10.4. Overdue payments shall, at STER-KINEKOR SALES’s discretion, accrue interest at the rate of 2% (two percent) per month.
10.5. In the event that payment is made through the post, then the postal authorities shall be deemed to be agents of the Advertiser and receipt by STER-KINEKOR SALES shall only take place on delivery of the payment to STER-KINEKOR SALES.
11. ATTENDANCE FIGURES
Attendance figures as published in the STER-KINEKOR SALES rate card are supplied by cinema exhibitors. STER-KINEKOR SALES shall not be responsible or liable for any errors or an omission in the attendance figures supplied and makes no representations in relation thereto.
12. CONTENT OF ADVERTISMENTS
12.1. STER-KINEKOR SALES is exempted from the statutory requirement whereby all advertisements must be submitted to the Publications Control Board for a clearance certificate prior to exhibition. In accepting Advertisements for exhibition, STER-KINEKOR SALES observes the principles and code of advertising as laid down by the Advertising Regulatory Board (“ARB”). STER-KINEKOR SALES reserves the right to refuse any Advertisement which it considers to be objectionable, untruthful or unsuitable, and will not be obliged to give a reason for such refusal, nor shall it be liable to the Advertiser for any loss, costs, proceedings or damages sustained by the Advertiser as a result. Rejected Advertisements shall be replaced by the Advertiser at its cost and the Advertiser shall not be entitled to terminate this Agreement as a result of the rejection of an Advertisement whether by STER-KINEKOR SALES, the ARB or otherwise.
12.2. The Advertiser hereby indemnifies STER-KINEKOR SALES and its employees against any claim of whatsoever nature arising out of, or in connection with or as a result of the exhibition of an Advertisement screened on behalf of, or at the request of the Advertiser. The Advertiser assumes full and complete responsibility and liability for the contents of any Advertisement screened.
12.3. In respect of all Advertisements that are not On-Screen Advertising, the relevant cinema exhibitor’s approval of such Advertisements shall be required prior to the display of any such material. STER-KINEKOR SALES shall procure that such consent is obtained timeously. Where, however, the exhibitor refuses consent for any reason, the provisions of clause 9 shall apply mutatis mutandis. STER-KINEKOR SALES shall be entitled, on notice to the Advertiser and without liability whatsoever, therefore, to remove from any advertising area or any advertising medium any advertising material that does not meet with the approval of the relevant exhibitor or landlord of the site at which the relevant Advertisement is displayed. The Advertiser shall be entitled to replace the relevant Advertisement with advertising material that does meet the approval of the exhibitor or landlord, provided that, unless otherwise agreed by STER-KINEKOR SALES, the period of display of the relevant Advertisement shall not be amended to take account of the interruption in display, and the Advertiser shall not be entitled to any remission of the prices payable in respect of the affected Advertisement. If at any time during the currency of this Agreement, legislation is enacted and enforced preventing or prohibiting the advertising of the product/s and/or services/s advertised by the Advertiser with the effect that STER-KINEKOR SALES or the Advertiser is substantially prevented from fulfilling its obligations in terms of this Agreement, then either party shall be entitled to terminate this Agreement but neither party shall be entitled to claim damages against the other party for any reason as a result of any such termination.
13. BREACH AND CANCELLATION
13.1. Should the Advertiser fail to make payment of any amount due on due day for payment, then without prejudice to any other rights which STER-KINEKOR SALES may have against the Advertiser in terms hereof or in law, STER-KINEKOR SALES shall be entitled to –
13.1.1. Cancel this Agreement and claim such damages from the Advertiser as it may have suffered by reason of the cancellation; or
13.1.2. Claim specific performance and all damages that it might have suffered as a result of the breach.
13.2. Notwithstanding the aforegoing, the Advertiser agrees that should its account fall into arrears in respect of these terms, STER-KINEKOR SALES or its agents or representatives may summarily and without notice suspend screening of the Advertisements until such time as the account shall have been paid. A certificate signed by any manager of STER-KINEKOR SALES whose capacity and authority need not be proved shall be prima facie proof of the amount outstanding from the Advertiser owed to STER-KINEKOR SALES.
13.3. Notwithstanding the provisions of clause 16.1 above, if either party breaches any material provision or term of this agreement and fails to remedy such breach within 10 (ten) days of the aggrieved party’s giving of written notice requiring it to do so then the aggrieved party shall be entitled without notice, in addition to any other remedy available to it at 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.
13.4. Termination of this Agreement shall in no way affect the liability of either party to other in respect of any amounts which are, at the date of such termination, due, owing and payable by either party to any other or which, by virtue of obligations already performed by a party prior to the date of such termination, become due, owing and payable by a party to any other after the date of termination.
13.5. Neither party shall be liable to the other for any indirect, consequential or special damages arising out of any cause whatsoever.
13.6. Upon the termination of this Agreement for any reason, STER-KINEKOR SALES shall, on-demand, make available to the Advertiser all material belonging to the Advertiser in STER-KINEKOR SALES’s possession. All advertisements and/or advertising material not collected by the Advertiser within a period of 1 (one) month after the termination of this Agreement for any reason shall be destroyed, and STER-KINEKOR SALES shall bear no liability to the Advertiser for the destruction of the relevant Advertisements and/or material.
14. FORCE MAJEURE
In the event of force majeure, being the unforeseeable events beyond the control of either of the parties and preventing either of the parties from meeting its obligations under this agreement, it is agreed that if notice of such situation is given by a party with 2 (two) weeks of the occurrence of force majeure, the contract obligations as far as effected by such event shall be suspended for as long as the inability to perform owing to such situation continues. If such force majeure situation persists for a period in excess of thirty days, either party shall be entitled to terminate this Agreement, but shall not be entitled to recover any damages which it may suffer as a result of such premature termination.
15. ASSIGNMENT
16. DOMICILIUM
The Advertiser hereby elects the physical address set out in the Cover Sheet as its domicilium citandi et executandi for all purposes hereunder including the giving of notices, the serving of any process and for any other purpose under this Agreement.
17. ENTIRE AGREEMENT AND VARIATIONS
17.1. This Agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of this Agreement, and the parties will not be entitled to rely, in any dispute regarding this Agreement, on any terms, conditions or representations not expressly contained in this Agreement.
17.2. No variation of or addition to this Agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the parties.
17.3. Neither party to this Agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in this Agreement.
18. VALIDITY
If any provision of this Agreement is found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions of this Agreement will not be affected thereby.
19. RELAXATION
No indulgence, leniency or extension of a right which STER-KINEKOR SALES may grant or show to the Advertiser, shall in any way prejudice STER-KINEKOR SALES, or preclude STER-KINEKOR SALES from exercising any of the rights that it has derived from this Agreement, or be construed as a waiver by STER-KINEKOR SALES of that right.
20. CONFIDENTIALITY
The parties agree to treat in confidence the other’s documentation and information which is by its nature clearly confidential (“Confidential Information”). The parties further agree not to disclose any Confidential Information to any other person other than its own employees under conditions of confidentiality and then only to the extent required for proper implementation, utilization and the proper performance of this Agreement.
21. DISPUTE RESOLUTION
This Agreement shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
The South Gauteng High Court of South Africa shall have non-exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this Agreement and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of South Africa.
Notwithstanding the above, where the dispute is, in STER-KINEKOR SALES’s reasonable discretion, or a technical nature, such dispute may, at the selection of STER-KINEKOR SALES be submitted to and determined by an expert, in which case, unless otherwise agreed by the parties in writing, the following provisions shall apply: -
21.2. The dispute or other matter in question shall be determined by such person acting as expert and not as arbitrator.
21.3. The determination of the expert shall, in absence of any manifest error and unless specifically and expressly otherwise provided for herein, be final and binding on the parties.
22. LIMITATION OF LIABILITY
22.1. The Advertiser specifically and expressly indemnifies STER-KINEKOR SALES and shall keep STER-KINEKOR SALES fully and effectively indemnified against all costs (whether direct or indirect, including costs of any settlement), claims, demands, damages, expenses (including all reasonable legal expenses) and liabilities of whatsoever nature including but not limited to any action, which may be instituted or lodged by any third party for any reason whatsoever against STER-KINEKOR SALES arising out of or in connection with the Advertisements including any claim that the Advertisements or the use by STER-KINEKOR SALES of the Advertiser’s Intellectual Property infringes the rights of a third party;
22.1. Ster-Kinekor will not, in any event, be liable for indirect, special or consequential damages arising from the performance or non-performance of their obligations in terms of this Agreement.
