Forbes Africa Advertising: Terms and Conditions (East Africa)

1)            Definitions

(a)        Commencement means the commencement indicated in the Agreement or date of signature, whichever is later in time.

(b)        Forbes Africa means ABN Publishing Kenya Limited a company incorporated and registered in accordance with the laws of the Republic of Kenya and bearing Registration Number: 2010/000130/07 and Vat Number: 4720260839, having its offices at 19th Floor, Ambank House, University Way, Nairobi, Kenya.

(c)        Client is the individual or entity as explained in the Agreement attached hereto.

(d)        Branded means all stings, billboards, logos and marks of the Client.

(e)        Intellectual Property Rights means patents, trade marks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered and including applications for registration of any of them), rights in know-how, moral rights, trade secrets and rights of confidence; all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may subsist anywhere in the world at the date of this Agreement or in the future.

(f)        Force Majeure Event means any event due to any cause beyond the reasonable control of the Party, including, without limitation, unavailability of any communication system, satellite failure, sabotage, fire, flood, explosion, accident, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, terrorism, change in schedules, rules, regulations or guidelines of the governments affecting the conduct, schedule and organization of the Event.

 

2)            Interpretation

(a)          Interpretation

Unless inconsistent with the context, an expression in the Agreement which denotes:

(i)         Any gender shall include the other genders

(ii)        A natural person shall include a juristic person and vise versa

(iii)        The singular shall include the plural and vise versa.

(b)          Headings

The headings to clauses of the Agreement shall not be considered part thereof, nor shall the words they contain be taken into account in the interpretation of any clause.

(c)          Law

The Agreement shall be construed in accordance with and governed by the laws of Kenya and the English language version shall prevail.

(d)          Conflict between Numerals and words

Should there be any conflict between the numerals and words, the words shall prevail

(e)          Schedules and Annexures

All schedules and annexures hereto shall be deemed to be incorporated herein and shall form an integral part hereof

(f)           Days

Where a number of days is prescribed it shall consist only of business days, unless specified otherwise as calendar days (i.e. days other than Saturdays, Sundays and Public Holidays) and shall be reckoned exclusively of the first and inclusively of the last day. Where the day upon which any act is required to be performed is not a business day, the Parties shall be deemed to have intended such act to be performed upon or by the first business day thereafter.

(g)          Parties

Any reference to the Client or Forbes Africa shall include its representatives, their successors in title, their respective agents, employees, servants, contractors and workmen.

 

3)    General

(a)          All content produced or published by Forbes Africa under this Agreement, whether published or not, will remain the property of Forbes Africa.

(b)          Forbes Africa, shall at all times, retain editorial control of all material.

(c)          All communication, terms and conditions relating to this Agreement is deemed confidential and Parties are precluded from disclosing any information thereof to third parties except where required by law and with those persons with whom privileged relationships exist according to the law (i.e Legal Advisers).

(d)          Forbes Africa reserves the right to refuse to publish any advertisement, or portion thereof, that does not comply with the law of the country of publication and distribution, including the Advertising Standards Authority codes and directives, relevant press and journalistic codes of conduct and other legislative or policy compliance measures.

(e)          The Client is responsible to provide the promotional material and content including all logos and artwork no less than 14 (fourteen) days prior to publication date, failing which the publication will be effected and alternative dates will be given, dates which Forbes Africa will deem suitable.

(f)           If commercials/advertisements are received from Client which are less than the space allotted to the Client, the Client shall be given an option to use additional space for its materials, subject to the approval of Forbes Africa. In the event of any non-communication or failure on the part of the Client with respect to use of such space, Forbes Africa shall have the right to use such spaces in the manner it deems fit.

(g)          If commercials/advertisements are received which are more in length and take up more space than allotted to the Client, the number of spots allotted to the Client or the amount payable by the Client shall be amended on a pro-rata basis by Forbes Africa.

(h)          Forbes Africa reserves its right to interrupt scheduled publication from time to time as a result of important annual events, other breaking news as well as public holidays.

(i)            The Client shall ensure that all Forbes Africa logos and marks are protected at all times. For purposes of clarity, the Client may not distribute or cause to be distributed any content or material from Forbes Africa and/or Forbes Woman Africa over the Internet or mobile telephony or distribute or cause to distribute to any hand held device or computer.

(j)            Forbes Africa at any time may at its discretion and without incurring any liability whatsoever to the Client:-

(i)         Pull off publication the material if so required by the ASA or if the material contained is unsuitable and violates the ASA’s Code of Conduct or the ASA’s prior rulings or the ASA’s directives.

(ii)        Pull off publication the material if the material provided is not complaint of intellectual property laws applicable in the country of publication or distribution.

(iii)       Restrict any repeat publication of the same material and provide reasons f or such restrictions.

 

4)    Payment Terms

(a)          The cost for the services is mentioned in the Agreement and is agreed between the Parties, the costs shall be paid to Forbes Africa in the manner as set out herein below.

(b)          Payment, as defined below shall be made upfront and in full upon invoice or in accordance with the timeline set out in the Agreement between the Parties.

(c)          All invoices shall be addressed to the Accounts Department, details of which are mentioned in the Agreement between the Parties.

(d)          Invoices shall be emailed and/or faxed to the aforesaid person or presented to the person upfront on the execution of the Agreement between the Parties.

(e)          Interest shall accrue at the prime interest rate, calculated at the payment due date, per month on all overdue accounts. Interest shall be computed from the date such payment is due till the date such payment in actually received by Forbes Africa.

(f)           All queries on statements shall be addressed to the accounting department of Forbes Africa within three days of receipt thereof, failing which it will be deemed to be correct, due and payable.

(g)          In the event of Forbes Africa having to instruct it’s Attorneys in respect of the accounts outstanding, the Client shall be liable for all legal costs incurred on an Attorney and own client scale

(h)          All payments in respect of the above shall be made directly, via Electronic Funds Transfer (EFT), into the account of Forbes Africa, details of which are mentioned in the Agreement between the Parties.

 

5)    Material and Property Liability

(a)          Forbes Africa shall not be held liable for any loss, damage or delay in delivery of scripts, photographs, artwork or other material that is supplied by the Client.

(b)          Neither Party shall be liable for any loss suffered by the other Party arising out of delay or in prevention of performance of the Party’s obligations due to any cause beyond its reasonable control (eg. Acts of God, satellite failure, war (declared or undeclared), strikes, riots, political insurrection, rebellion, revolution, flood, fire, earthquake, prohibition of import, acts or orders of government etc.) “Force Majeure” The Party whose performance is delayed or prevented shall be entitled to a reasonable extension not exceeding 30 (thirty) days to perform, provided that such Party promptly notifies the other Party after becoming aware of the act giving rise to the delay or prevention of performance. If performance is or will be delayed and or prevented for more than 30 (thirty) days then the Parties shall endeavour in good faith to agree on an alternative basis for achieving the objects of this Agreement. If the Parties are unable to reach such an agreement, then either Party may terminate this Agreement upon written notice, and the Parties shall make such financial adjustment between them as may be equitable. Client acknowledges that in case of Force Majeure, Forbes Africa will be unable to refund the advance which will be used for promotional purposes but will give publication space/advert slots to the Client should such eventuality occur.”

(c)          In the event that Forbes Africa fails to publish a deliverable on the agreed date due to 5 (b) above, Forbes Africa shall endeavor to compensate the Client, such compensation shall be given in re-publication and no monetary credit shall be passed.

(d)          Should Forbes Africa fail to publish the advertising material for reasons within its control (save and except a force majeure event, or the content provided is in violation of an advertising code or in violation of intellectual property rights), Forbes Africa shall compensate the Client accordingly, and such compensation shall be given in publishing space and no monetary credit shall be passed.

(e)          Forbes Africa shall offer to publish the compensation mentioned above during some other suitable period. Should that period not be acceptable to the Client that Client shall have no further claims against Forbes Africa for any expenses or damages incurred as a result thereof.

 

6)    Warranties and indemnities

(a)          The Client warrants that:

(i)         It is responsible for obtaining and paying for all necessary licenses and consents for the publishing of any copyright material contained, or the inclusion of or reference to any person in the relevant material.

(ii)        No material supplied by the Client will breach the copyright and other Intellectual Property Rights or other rights of or be defamatory of any third party.

(iii)       all material provided to Forbes Africa is compliant with the Advertising Standards Authority and with any other relevant legislation in the territory including the applicable sovereign laws of the country of publication and the country of distribution.

(b)          The Client is precluded from holding Forbes Africa and its staff liable/ responsible for any claims of whatever nature arising from any breach of the above warranties in consequence of the use, publication, recording or broadcasting of any advertisement copy or matter supplied by and published for the Client.

 

7)    Variation and Cancellation

No agreement varying, adding to, deleting from or canceling this Agreement, and no waiver whether specifically, implicitly or by conduct of any right to enforce any term of this Agreement, shall be effective unless recorded in writing and signed by and on behalf of the Parties. It is recorded that there exists no collateral and/or other agreements and that this is the sole and exclusive Agreement entered into by and between the Parties and no Party shall be entitled to seek rectification of any of the terms hereof.

 

8)    Termination

(a)          This Agreement shall terminate at the end of the period of the stipulated in the Agreement attached. This Agreement shall be renewed beyond the Term in writing on mutually agreed terms and conditions by the Party;

(b)          Either Party may terminate this Agreement at any time by giving notice in writing to the other Party if:

(i)         The other Party has committed a material breach of any of its obligations under the Agreement which is incapable of remedy; or

(ii)        The other Party has committed a material breach of an obligation to pay money hereunder which the other Party has not remedied within thirty (30) days of receipt of written notice to do so or other timeline as prescribed for rectification by Forbes Africa; or

(iii)        The other Party has committed a material breach of any of its obligations under the Agreement which is capable of remedy and which the other Party has not remedied within thirty (30) days of receipt of written notice to do so or other timeline as prescribed for rectification by Forbes Africa; or

(iv)       Proceedings are started for the other Party’s winding up, dissolution or re-organization (otherwise than while solvent and for the purpose of a bona fide reconstruction or amalgamation) or for the appointment of a receiver, trustee or similar officer of any or all of the other Party’s revenue or assets; or

(v)        The other Party ceases to carry on business or suffers any execution or distress over a material part of its assets; or

(vi)       The other Party becomes bankrupt or insolvent or files any application, petition or action for relief under any bankruptcy, insolvency or moratorium law; or

(vii)      The other Party suffers any similar event of insolvency or bankruptcy under the terms of the jurisdiction of its domicile; or

(viii)      If the other Party commits any such act, deed, commission or omission which brings public disrepute, contempt, scandal or reflects unfavourably on the other Party. However, the Parties understand that any unsubstantiated, motivated, malicious and mala fide article in any magazine, newspaper and/ or any unsubstantiated, motivated and malicious complaint against the other Party by any person or group shall not constitute a breach of this Agreement.

(c)          Upon giving such notice the Parties shall continue to treat this Agreement as being of full force and effect during the notice period.  Any obligations, whether financial or other, of one Party to the other, shall be discharged prior to the end of the notice month unless the Parties decide otherwise in writing, signed by both Parties.

 

 

 

9)    Domicilium Citandi Et Executandi

(a)          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 whatsoever nature the following addresses:-

FORBES AFRICA:     19th Floor, Ambank House, University Way,

Nairobi, Kenya

CLIENT:                      As indicated in the Agreement

(b)          Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if given in writing but it shall be competent to give notice by telefax.

(c)          Either Party may by notice to the other change the physical address chosen as its domicilium citandi et executandi to another physical address or its telefax number, provided that the change will only become effective on the seventh day after receipt of the notice by the addressee.

(d)          Any notice to a Party which is:-

(i)         Sent via registered post in a correctly addressed envelope to it at its domicilium citandi et executandi shall be deemed to be received on the seventh day after posting (unless the contrary is proved); or

(ii)        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

(iii)        Transmitted by telefax or email to its chosen telefax number or email address chosen (if any) stipulated in clause 7 (a) above shall be deemed to have been received on the date of transmission (unless the contrary is proved).

 

10) Dispute Resolution

(a)          Settlement: The Parties shall negotiate in good faith and make every effort to settle any dispute, or claim, that may arise out of, or relate to this Agreement.

(b)          Arbitration:

(i)         Where a dispute is not resolved by negotiation within 30 calendar days of either party having raised a dispute, either party may refer the dispute for resolution by way of Arbitration, by a single arbitrator to be selected by agreement between the parties within the fifteen days of the filing of demand for arbitration, failing agreement, by the President (at the time of the dispute) of the Arbitration Foundation of Kenya or similar Legislative Body.

(ii)        Arbitration proceedings shall be conducted in the English Language and in accordance with the provisions of the Arbitration Legislation of Kenya and procedures if not agreed upon shall be adjudicated in terms of the Conduct of Arbitrations.

(iii)        Arbitration proceedings shall be held in Nairobi, Kenya, and the arbitrator will be an Attorney or Advocate who has practiced as such for a period of at least 15 (fifteen) years and who has a specialized knowledge in international commercial litigation or international corporate or commercial matters.

(iv)       The costs of the arbitration shall be borne equally by all parties. Except to the extent that the arbitrator makes a different cost order, which shall include an order that the successful party shall be entitled to recover its costs from the other.

(v)        Award given by the arbitrator must be in writing and delivered to both parties within 4 (four) months of the hearing and the decisions of the arbitrator shall be final and binding on the Parties, shall be carried into immediate effect and, if necessary, be made an order of any court of competent jurisdiction.

(vi)       Any award of a monetary nature must be expressed in Kenya currency being the Schilling.

(vii)      All evidence submitted, all communication during the procedure and final award thereof is deemed confidential and no party may disclose any information disclosed during these proceedings to any third party not privy to these proceedings.

 

11) Entire Agreement

This Agreement constitutes the entire agreement between the Parties with regard to the matters dealt with herein and no representations, terms, conditions or warranties expressed or implied not contained in this Agreement shall be binding on the Parties.

 

 

12) Limitation of Liability

In no event shall either Party be liable to the other for consequential damages, loss of profit or income, irrespective of cause of action and howsoever arising. If the Client incurs any expenses, damages, losses or liabilities whatsoever (including, without limitation, legal fees) in connection with or arising from the provision of services by Forbes Africa, whether as a consequence of negligence or otherwise, Forbes Africa’s liability to the Client as a result is the total aggregate liability to the Client for an event or series of connected events shall in not exceed  in any circumstance the maximum amounts paid by the Client to Forbes Africa in this Agreement. No claim, series of claims or connected claims by either Party shall, in total, exceed an amount equal to the total charges payable by the Client to Forbes Africa in terms of this Agreement.

 

13)  Warranty of Authority

Each of the persons signing on behalf of the Parties to this Agreement warrants that each Party acts as principal (and not as agent for an undisclosed principal) and has the full power, authority and legal right to execute, deliver and perform their obligations imposed on it in terms of this Agreement and will be duly authorised by all the necessary action of the Party concerned and its officers and officials and that any obligations arising from this Agreement are valid and binding on the Party concerned.

 

14) Miscellaneous

Notwithstanding anything contained in this Agreement, it is hereby agreed that all rights and duties arising out of this Agreement would have been fulfilled at the date of termination and any duties and obligations due shall not continue to a new period unless confirmed in writing and agreed thereto by both Parties as an addendum to this Agreement save for the payment obligations upon the Client as stipulated in the Agreement. For purposes of clarity, all publication space owing to the Client by Forbes Africa in terms of this Agreement shall be deemed as fulfilled at the end of the duration of the Agreement unless otherwise agreed to in writing.

 

15) Severability

If for any reason any provision of this Agreement is held invalid, all other provisions of this Agreement shall remain in effect. If this Agreement is held invalid or cannot be enforced then to the full extent permitted by law any prior agreement between the Forbes Africa and the Client shall be deemed reinstated as if the Agreement had not been.