Terms and Conditions of SPARK Media’s Online Sales Agreement/Insertion Order:
Upon signature of the above Insertion Order, the Parties agree that they are bound by the Terms and Conditions below.
(i) Spark Media refers to Hive Digital Media, a division of Spark Media, a division of CTP Limited, (Registration Number 1971/004223/06) with registered address Block 3, Burnside Island Office Park, 410 Jan Smuts Avenue, Craighall Park, Johannesburg, South Africa, 2196. (Hereinafter referred to as “Spark Media”).
(ii) The Client is the party to the applicable insertion order, being the Agency or Client Direct where no Agency stated, as stated on the Insertion Order, whether acting as principal or agent (Hereinafter referred to as “the Client”).
The above parties come to an agreement for the rendering of digital advertising services across multiple digital advertising platforms and participating websites (“Platforms”) including but not limited to online platforms, campaign management, creative development or the providing of educational training and insights services (“Services”).
By signing an Insertion Order or by using any of our Services, the Client acknowledges and agrees to these Terms as well as any other terms and conditions stated on the Insertion Order and agrees to be bound thereto as the agreement between the Parties (“Agreement”).
“Ad” means any advertisement provided by Client or on behalf of a Client.
“Advertising Materials” means artwork, copy, tags or active URLs for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, being controlled by or under common control with, such an entity. Also referred to as “Representative”.
“Agency” means the advertising Agency listed on the applicable IO, or in the case of no Agency being in play, the “Client” themselves being the contracting party.
“Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information.
“Campaign” means the organised delivery of marketing elements involving various types of digital media including but not limited to digital display, content creation and placement, as well as programmatic advertising.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis. (CPA is an acronym for “cost per acquisition”, and is a marketing metric that measures the aggregate costs to acquire one paying customer on campaign level).
“CPC Deliverables” means Deliverables sold on a cost per click basis. (CPC is an acronym for “cost per click”. CPC is an online advertising pricing model used to drive traffic to websites, in which the advertiser pays a publisher when the advertisement is clicked on).
“CPL Deliverables” means Deliverables sold on a cost per lead basis. (CPL is an acronym of “cost per lead” and is an online advertising pricing model where the advertiser pays for an explicit sign-up from a consumer invested in the advertiser’s offer).
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis. (CPM (Cost per mile/cost per thousand) is a marketing term that denotes the price of 1,000 advertisement impressions on one webpage. An impression describes the moment when an advertisement reaches a user’s screen.
“Deliverable(s)” means the inventory delivered by Spark Media (e.g. impressions, clicks or other actions desired by the Client).
“Inventory” describes the ad units (for example content placements) available on the website for use in a campaign
“IO” means a mutually agreed insertion order that incorporates these Terms, under which
Spark Media will deliver Ads on websites for the benefit of the Agency or Client.
“IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
“Spark Media Properties” are digital media properties or websites owned, operated, controlled or represented by Spark Media.
“Partners” means 3rd party partners that own or control Spark Media Properties.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Spark Media’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means any director, officer, employee, consultant, contractor, agent, and/or attorney appointed by an entity to represent it’s interests.
“Terms” means these Standard Terms and Conditions for the IO Agreement entered into between the parties.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity: Spark Media, Agency, Client, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads. It is also described as a third party web server that hosts data regarding Ads and that delivers Ads directly to websites and mobile applications. (A mobile application, also called an App, is a type of application software designed to run on a mobile device, such as a smartphone, tablet or computer).
“Website(s)”/“Site(s)” means Spark Media Properties.
- Client and Spark Media will at all times comply with all Republic of South Africa laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- The Terms shall be read in conjunction with the IO. If there is a conflict, the IO shall take precedence.
- These Terms, the relevant IO and the Client’s Credit Application approved by Spark Media, 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.
- Each party warrants to the other party that it has the expertise, experience and required licenses and permissions to fulfil its obligations in terms of these Terms and any IO.
- The Client may not resell, assign or transfer any of its rights or obligations hereunder. Only one exception applies – when the Client is an Advertising Entity on whose behalf the Advertising Entity enters into the IO.
- All terms and provisions of these Terms and each IO shall be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
- An 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.
- Any claims, legal proceeding or litigation arising in connection with any IO or these Terms shall be subject solely to the jurisdiction, and laws, of the courts of the Republic of South Africa.
- No amendment to the IO or these Terms will be effective and enforceable unless it is in writing and signed by a director of Spark Media, irrespective of whether the IO and these terms has been executed in part or in full. Delivery by Spark Media in terms of an IO, shall not constitute acceptance of any modifications or changes to these Terms as requested by the Client.
- 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.
- The parties do respectively nominate and appoint the addresses set forth in each relevant IO as the domicilia citandi et executandi for all purposes arising from or incidental to this Agreement.
- The Parties acknowledge and agree that the terms of the National Credit Act and the Consumer Protection Act do not apply to this Agreement.
- Each signed IO must be in the form as required by Spark Media. The Client agrees that all Advertising Materials provided & all Services requested shall comply with Spark Media’s Policies, criteria and specifications.
- Spark Media shall endeavour to begin processing the IO within 2 (two) business days of receipt of signed copy from the Client and make commercially reasonable efforts to notify the Client as soon as possible after receipt of an IO signed by the Client, if the specified inventory is not available.
- Spark Media reserves the right to cancel an IO within 5 (five) working days from its receipt, should it receive notice from its Partners stating that necessary inventory is not available.
- If Spark Media is able to obtain the inventory and assist the Client, this will be confirmed in either writing or by Spark Media’s delivery of the first Ad impression pursuant to the IO.
- Spark Media may remove or suspend any Services or Advertising Materials that Spark Media or its Partners determines as unlawful, immoral or improper. Once the Advertising Materials have been removed, the Client will be informed and allowed 48 hours to provide rectified Advertising Materials. If the client fails to do so, the Client will remain liable for a cancellation fee of 30% (thirty percent) of the total campaign value while Spark Media will not be liable to serve any advertising on such campaign until the rectified material has been received. Should the rectified materials be received and the campaign is run, Client will be liable for the total campaign value.
- Spark Media reserves the right to decline an IO within its sole discretion and there shall be no requirement on Spark Media to submit details and the reason for such decline.
- If Advertising Material provided by the client does not meet Spark Media’s Policies, criteria and specifications, this will be communicated to the client and the Client will be expected to provide the material as prescribe by Spark Media. If the Client fails to do so, and if this failure is not remedied within 5 (five) working days of Spark Media notifying the Client on its Advertising Materials being noncompliant, Spark Media will be entitled to cancel the IO.
- Revisions or amendments to the IO shall not be binding unless signed by both Parties.
- Spark Media may deviate from an IO if agreed to by the Client or where Spark Media is acting in a manner it reasonably considers to be in the interests of the Client.
- Spark Media will acknowledge to Clients when an IO has been received. Within 2 (two) business days of acknowledging the receipt of an IO, Spark Media shall provide to the Client final technical specifications for the Services.
- If the specifications in paragraph 19 change after the Client was provided with the final specifications, the Client may request a suspension of the start date of the Ad by a reasonable period to allow it to (i) provide a revised Ad in line with the news specifications; (ii) request that Spark Media resize the existing Ad according to the new specifications at Spark Media’s cost; (iii) agree to a comparable replacement of the Ad in good faith.
- If the Client does not wish to exercise any of the options available in paragraph 20, and if the parties otherwise failed to resolve the issue, the Client will be able to cancel the remainder of the IO without penalty.
- Spark Media shall endeavour to provide the Client with 5 (five) business days’ notice if Spark Media becomes aware of any changes to the Platform (such as the website undergoing modification) that may potentially alter the audience reached or significantly affect the size or placement of any Services agreed to within an IO. If Spark Media gives notice to this effect, the Client may cancel the remainder of the IO in writing and in such case shall not be charged for any affected Ad delivered after the giving of such notice by the Client.
- Spark Media will, within 2 (two) business days of the start date on the IO, provide confirmation to Client, either electronically or in writing, stating whether the components of the IO have begun delivery.
- The prices stated in the Insertion Order are computed at Spark Media’s exchange rate for the month, which rate is obtainable from the Finance Director of Spark Media on (010 492 8366). Spark Media reserves the right to change this rate from time to time, including revising the amounts stated on the IO at any time prior to acceptance by the Client or prior to the campaign start date as detailed on the Insertion Order.
- The Clientgrants Spark Media a worldwide, royalty free license to use the provided Advertising Materials and any logo, trade name, trade mark, brand name, logo or domain name associated therewith for the purposes of fulfilling its obligations in respect of any IO.
- Spark Media will comply with the IO, including all Ad placement conditions, and will attempt to create a reasonably balanced delivery schedule. Spark Media will provide, within the scope of the IO, an Ad to the Site specified on the IO provided that Spark Media receives all Client Advertising Materials within the timelines specified by Spark Media.
- It is acknowledged that from time to time clients request that Spark Media quote their own order/unique number or Copy Insertion (CI) on Spark Media’s invoice or other documentation. Spark Media is not compelled to do so, but may endeavour to assist in this regard. However, it is expressly noted and agreed that this is an administrative process that may be performed as a courtesy to the Client. If such request is not carried out or not carried our correctly or completely, this does not detract from the Client’s obligations in terms of the Agreement and/or the agreed credit terms and liability to pay Spark Media within such agreed credit terms.
- The credit terms agreed with the Client by Spark Media are firm and not subject to the Client being paid by any other party, including its client.
- Where the Client requests Spark Media to credit and re-invoice or Spark Media requires an invoice to be credited and re-invoiced, whether in whole or part, for a campaign previously invoiced, the credit terms and period shall run from date of original invoice and not from the date of re-invoice.
- Should the Client fail to pay any amount by its due date or otherwise breach any obligation it owes to Spark Media, Spark Media may (as one of its remedies) suspend the Services.
- Interest at the prime interest rate charged by Spark Media’s nominated bank plus 2% shall accrue on all overdue amounts from the due date until date of payment.
- A certificate by any director of Spark Media, whose appointment authority need not be proved, shall be prima facie proof of the amount of the Client’s indebtedness to Spark Media for purposes of obtaining summary judgment or provisional sentence.
- In the event of Spark Media instructing its attorneys to recover monies from the Client, the Client shall be liable for and shall pay all legal costs incurred by Spark Media on an attorney/client scale, inclusive of collection commission.
- Spark Media may, from time to time, change the rates of billings as specified within the Terms or on the respective IO’s. If the basis of billings is amended by Spark Media, this will be allowed where Spark Media is acting in a manner it reasonably considers to be in the interests of the Client. If this leads to a higher amount payable by the Client, the latter will not unreasonably refuse to pay accordingly.
- Invoices are typically raised on the Client for campaigns to be run for the month. Spark Media may, at its sole discretion, reasonably change its rates and the basis of billings referred to in paragraph 34 from time to time without notification to the Client. The exercising of this right by Spark Media shall not affect the Client’s obligation to settle outstanding amounts as per the Terms.
- Where the Client is represented by an agent or is located outside of South Africa, Spark Media may require the Client to confirm that agent’s representative capacity and may impose further conditions to Spark Media’s acceptance of the IO, including advance payment.
- The Client represents and warrants that it has the authority as agent to bind the Clientto these Terms and each IO. The Client agrees to defend, indemnify and hold harmless Spark Media, its affiliates and their respective parties from any and all losses incurred as a result of the Client’s breach of any obligations to Spark Media or any other Party.
- Spark Media shall provide the Client with such reports as stipulated on the IO (Proof of flight; Interim and End report), or as the Client may reasonably require from time to time.
- If Spark Media is serving the campaign, Spark Media will make reporting available as agreed to on the IO.
- If Client informs Spark Media that Spark Media has delivered an incomplete or inaccurate report, or no report at all, Spark Media will cure such failure within a reasonable time.
- The Client may cancel any IO, without penalty, if notice is given to Spark Media more than 30 days prior to the campaign start date as stipulated in the IO. If a shorter cancellation notice is given then the Client is liable to Spark Media for 30% (thirty percent) of the total cost of the campaign scheduled to be rendered during the 30-day period following the notice.
- Should the Client insist on a waiver of the cancellation notice period, i.e. immediate cancellation of the campaign, Spark Media will be entitled to 100% (one hundred percent) of the IO value, i.e. the full IO value will be payable.
- Where it is able to accommodate postponement, requests received from the Client in writing and that explicitly state postponement dates, Spark Media shall endeavour to execute postponements in accordance with the requests received. However, Spark Media will not by obliged to do so.
- Any postponement shall be subject to inventory availability within the new campaign date range and should insufficient inventory be available, Spark Media shall afford the Client inventory on an alternative environment. Spark Media will then bill Client according to the inventory that ran.
- Should the Client opt to cancel the IO after requesting a postponement, then the Client will be liable to pay the cancellation fee as detailed in clauses 41-42 above.
- Either Party may terminate an IO at any time if the other Party is in material breach of its obligations under these Terms, any IO or any policy detailed herein and that breach, if it can be cured, is not cured within 10 (ten) days after written notice thereof to the party in default by the party that is not in default.
- If the Client breaches in terms of any policy on 3 (three) separate occasions after having received notice of such breach, then Spark Media may terminate the IO associated with such breach upon written notice even if such breach has been cured by the Client.
- Reasonable cancellation fees may be imposed if the Client is in breach as discussed in clauses 46 & 47.
- Client will submit Advertising Materials in accordance with Spark Media’s Policies existing when the IO was agreed on, as amended from time to time. Spark Media reserves the right to assess any content to ensure that the Client conforms with the basic then-existing Policies.
- Clients must provide materials on schedule as per policy to ensure Spark Media’s ability to deliver on the IO timeously.
- Spark Media reserves the right within its discretion to reject or remove from its Sites any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, etc), or the website to which the Ad is linked do not comply with its Policies, or that in Spark Media’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Spark Media reserves the right within its discretion to reject or remove from its Site any Ads for which the Clients Materials or the website to which the Ad is linked are, or may tend to bring disparagement, ridicule or scorn upon Spark Media or any of its Affiliates. In these instances, Spark Media will make commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Client.
- If Clients Materials provided by Client are damaged, not to Spark Media’s specifications, or are otherwise unacceptable, Spark Media will use commercially reasonable efforts to notify Client within 2 (two) business days of its receipt of such Advertising Materials after having received same.
- Subject to the Terms above, Spark Media will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Client’s approval. Spark Media will use all Ads in strict compliance with these Terms and any written instructions provided on the IO. Should the need arise to modify the Ad in any way, Spark Media shall contact the Client first.
- In the event that Spark Media create and curates any content on behalf of the client or modifies any supplied content (with the client’s permission) the client will have the opportunity to review the content 3 (three) times without any additional charge.
Late Advertising Material Supply
- Material is deemed to be supplied late by the Client (“the Late Material”), when such material is delivered to Spark Media less than 5 (five) business days prior to the rendering of the first Ad specified in the IO.
- Spark Media will, in that event, not be required to render the first Ad by the specified campaign start date as per the IO, nor will Spark Media be held liable for a delayed campaign start date and the implications thereof.
- Should Spark Media implement the Late Material and the campaign runs in part or in full, the Client shall remain liable for the full payment of all inventory that runs, notwithstanding Spark Media’s failure to meet its original delivery obligations as stated on the IO as a result of the Client’s supply of the Late Material.
- However, if the Client supplies Late Material to be implemented in respect of non-standard advertising placement IO’s (including but not limited to sponsorships, newsletters, promo-mailers and packaged special offers), the Client shall forfeit those days affected by the supply of the Late Material with no recourse by Spark Media whatsoever, and the Client shall remain liable for the full IO value, including such forfeited placements.
Make Goods and Bonus Impressions (Including 3rd Party Ad Serving)
- Spark Media’s sole liability to the Client for any non-delivery of any deliverables in respect of any service or IO shall be to provide the Client with a credit equal to the value of the under-delivered portion of the IO. Alternatively, an agreement may be reached with the Client to extend the campaign end date or service in order for the service to be fulfilled.
- Spark Media may allow for a delivery discrepancy and where it is deemed warranted in Spark Media’s sole discretion.
- Although Spark Media affords the Client the ability to utilise third party delivery platforms and technologies, Spark Media reserves the right to decline those Platforms and/or technologies it deems (in its sole discretion) to have a negative impact on Spark Media’s trading, delivery and/or functionality. Spark Media shall notify the Client in writing of its election to decline such third-party delivery platforms and technologies and any affected IO will be cancelled with immediate effect and no further obligations shall be owed by either Party to the other from the time of the aforesaid cancellation.
- Spark Media shall make all commercially reasonable efforts to ensure that the delivery between Spark Media’s ad serving technology and those of the client, including third party delivery platforms and technologies, correspond. If a discrepancy occurs the parties will facilitate a reconciliation effort between Spark Media and the Clients measurements. For the avoidance of doubt, and as final arbitration, Spark Media and the Client agree that Spark Media’s ad serving technology and reporting will be considered as correct.
- The Client indemnifies and holds Spark Media harmless against any claims or liability or damages arising on the part of Spark Media from any breach or implementation of any obligation imposed on it in any IO, in these Terms or in law. In no event shall Spark Media 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 Client arising out of these Terms or any IO.
- If, notwithstanding any of the aforementioned, if Spark Media is found to be liable to the Client for any amount or claim hereunder, such liability shall never exceed the lesser of the amount that the Client paid to Spark Media in the 3 (three) months immediately preceding the date the liability arose or the proceeds available from any insurance procured by Spark Media in relation thereto (if any).
- The Parties shall treat all information, in whatever form and howsoever recorded, that may reasonably be argued to have commercial value 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 unless required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (i) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures; (ii) enforce this Agreement; (iii) respond to claims of a violation of the rights of third parties, whether or not the third party is a Member, individual, or government Client;
- The recipient will protect all confidential information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care.
- Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court of law or other regulatory body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
Data collection, usage & ownership
Additional definitions in relation to data usage:
“Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Clients and precludes identification, directly or indirectly, of a Client.
“Collected Data” consists of IO Details, Performance Data and Site Data.
“Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information).
“Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
“Site Data” is any data that is (a) pre-existing Spark Media data used by Spark Media pursuant to the IO; (b) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Spark Media, Spark Media’s Site, brand, content, context, or users as such; or (c) entered by users on any Spark Media Site other than User Volunteered Data.
“User Volunteered Data” is personally identifiable information collected from individual users by Spark Media during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Client.
- Unless otherwise authorized by Spark Media, Client will not: (a) use Collected Data for Repurposing; provided however that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (b) disclose IO Details of Spark Media or Site Data to any Affiliate or Third Party.
- Unless otherwise authorized by Client, Spark Media will not: use or disclose IO Details of the Client unlawfully.
- During the life-span of a campaign, Spark Media will collect and store non-personally identifiable data about users who interact with the campaign within the Oracle Bluekai Data Management Platform. Data will be collected for the purpose of improving retargeting campaign effectiveness and for reporting and insight purposes across multiple client campaigns. For more information on our data collection policy, please click here.
- The Spark Media Data Management Platform is fully compliant with South African privacy law and international standards.
- Client and Spark Media (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- Spark Media will not: (i) use Collected Data unless Client is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Client is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Client shall not prohibit Spark Media from (a) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (b) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Spark Media on behalf of such clients or potential clients, for the purpose of media planning.
Last updated: 31 January 2020