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Farm with the Internet

Preamble:

The  under mentioned Terms and Conditions (“T&C’s”) will apply to all and any subscriptions submitted to Farm With The Internet (“FWTI”) by any advertiser or agent of an advertiser (collectively to be referred to as “Advertiser”) and accepted by FWTI. FWTI or its assigns  and the Advertiser are collectively referred to as the “Parties”. These T&C’s and the details of the advertiser’s subscription are collectively referred to as the “Advertising Agreement” or “Agreement". The advertiser’s indication that these T&C's are acceptable when submitting its subscription to FWTI , (and,  where applicable, taken together  with FWTI’s  submitting its quote for the term chosen by the advertiser and in response thereto the receipt by FWTI of the  advertiser’s acceptance of the quote), will constitute the entering into  of a binding agreement between the parties.

1. Definitions and Advertising Services.

1.1 Definitions:

Unless the context clearly and logically dictates otherwise, the following words and expressions will have the meanings as indicated:

“Advertiser”: A Commercial client, who has entered into an agreement with

FWTI to make use of FWTI’s facility for the linking of the client’s web site on to FWTI’s web network, and also, where applicable,   a Smalls Advertiser who has contracted with FWTI to place a Smalls advertisement.

“Advertisement”: The displaying of a Commercial client’s website links, and, where the

context allows it, also the displaying of a Smalls advertisement  in accordance with the terms of the Agreement, and  “Online Ad” will have a similar meaning.

“Agreement”: The total content of the contracted terms between the parties, as defined in the preamble.

“Calendar month”: A period of time running from and including the date on which the application form

for an advertisement is  received by FWTI (the initiation date) up to and including a date during the next  calendar month  numbering one (1) less than the month day number of the initiation date, and the subsequent calendar month then to start running  from the following day.

“Client”: The same as “Advertiser”.

“Corporate client”: A commercial trading entity or an institution with a national or countrywide presence and impact in the RSA and/or which is trading internationally.

“Commercial client”: A commercial trading entity or an institution with a predominantly localized presence and impact in any city, town, district or region the RSA.

“Continued period”: A second or subsequent period of time elected by an Advertiser for an advertisement to be displayed by FWTI.

“Display”: In  the case of Commercial advertisements, the  facilitating of the linking to the advertiser’s website from FWTI’s website, and in the case of Small Ads, the publishing of the advertisement in readable form in the relevant slot on FWTI’s  website.

“Initial period”: The first period of time elected by an Advertiser for an advertisement to be displayed by FWTI after the lapsing of the initial period.

“Initiation date”: The date on which the application form for an advertisement is received by FWTI.

“Online Ad”: Same as “Advertisement”.

“Services”: The advertising services rendered by FWTI as per the relevant Subscription.

“Site”: FWTI’s website

“Smalls”: FWI’s facility for placing small advertisements for clients whether in the “For Sale”, “Wanted”, or “To Swop” categories.

“Subscription”: The application form as submitted by the advertiser to FWTI taken together with all

Concomitant communications and agreed undertakings between the parties.

“T&C’s”: These terms and conditions.

“Web Network”: The Website of FWTI, incorporating all its functions.

1.2. Services to be Provided, Rights and Obligations of the Parties.

1.2.1.    Corporate and Commercial Clients:

1.2.1.1. FWI will place and display links to the client’s website on FWTI’s web network under the indexed category or categories as well as under the chosen associated links as contracted with the client throughout the term of this Agreement.

1.2.1.2. Such placing will be on the basis that FWTI will display links leading to the client’s website under all such categories in its Index and at all such other linked places on its web as specified in  the subscription, so as to enable visitors to the FWTI web network  to  obtain access to the client’s  own website by clicking on such links.

1.2.1.3. The Display of an advertisement will be affected by FWTI immediately after any Agreement with an Advertiser is concluded.

1.2.1.4. The client undertakes to pay all agreed fees monthly on due date as agreed to in the subscription.

1.2.1.5. A binding agreement, as defined in the preamble, comes into effect between the parties upon receipt by FWTI of the Advertiser’s acceptance of a quote or upon receipt by FWTI of the Advertiser’s first payment, whichever occurs first.

1.2.1.6. Once an agreement is entered into, either for an initial period or a continued period, the advertisement will run it agreed full course and   cannot be cancelled by the Advertiser during such run.

1.2.1.7. FWI will incur no responsibility or liability of any kind whatsoever vis a vis any third party with regard to the contents of the Advertiser’s own website or with regard to offers and/or undertakings made and given on such website, or with regard to the failure of the Advertiser’s website to open at any time, and FWTI is hereby indemnified by the Advertiser with regard to the possibility of any such alleged liability.

1.2.1.8. FWTI will in no instance and under no circumstances be regarded as an agent of the advertiser or of any third party with regard to any transactions that may take place between the advertiser and such third party as a result of making use of FWTI’s web network.

1.2.1.9. In the case of a dispute as to whether a client qualifies as a Corporate client or as a Commercial client, the final decision as to the correct category will lie with FWTI and no one else, with the proviso that a client’s category cannot be upgraded from Commercial to Corporate during the run of any advertising period. 

1.2.2     Small Ads:

1.2.2.1. FWTI will place and display the small advertisement(s) as prescribed by the advertiser under the applicable alphabetical category in the Smalls division on FWTI’s web network  for a minimum period of one calendar month.

1.2.2.2. FWTI reserves the right to screen and approve the wording of any proposed advertisement and to refuse to place an advertisement at its own sole discretion and without giving any reasons.

1.2.2.3. The Display of an advertisement will be affected by FWTI immediately after any Agreement with an Advertiser is concluded.

1.2.2.4. The advertiser undertakes to pay the due agreed fee for the advertisement upon submitting the application form to FWTI.

1.2.2.5. A binding agreement will come into effect between the parties upon receipt by FWTI of the Advertiser’s duly completed application.

1.2.2.6. Once an agreement is entered into, it can be cancelled by the Advertiser at any time during the agreed period for the running of the advertisement, but the advertiser will not be entitled to any refund of moneys paid  in respect of the calendar month in which such notice of cancellation is received.

1.2.2.7. FWTI will in no instance and under no circumstances be regarded as an agent of the advertiser or of any third party with regard to any transactions that may take place between the advertiser and such third party as a result of the advertiser making use of FWTI’s  Smalls advertising facility.

1.2.2.8. FWTI will incur  no responsibility or liability of any kind whatsoever vis a vis any third party with regard to the contents of the Advertiser’s advertisement or with regard to offers and/or undertakings made and given,  or with regard to agreements reached and/or rights and obligations attained by any party as a result of such advertisement and/or any alleged breach of contract by any of the involved parties,  and FWTI is hereby indemnified by the Advertiser with regard to the possibility of any such alleged liability or claim.

2. Interruption of Services.

The Advertiser acknowledges  that from time to time FWTI may temporarily not be able to display the Online Ad as scheduled,  or  that the Site may be inaccessible or inoperable, for various  reasons, including (but without limiting any other reasonable causes beyond the control  of FWTI)  (i) equipment  malfunctions,   (ii) periodic maintenance procedures or repairs to the site which FWTI may undertake from time to time; or (iii) causes beyond the control of FWTI  and which are not reasonably predictable by FWI , including, without limitation, power failures, or interruption or failure of telecommunication or digital transmission  links, hostile network attacks and network congestion  or other failures of uncontrollable origin or nature. Such interruptions of Services will not be deemed a breach of the Advertising Agreement or any provision thereof.

3. License

Solely in connection  with this Agreement, and in only in as far as may legally be necessary, the Advertiser grants to FWTI  a limited, non-transferable, nonexclusive, worldwide license, for the term of the Agreement to: (a) copy, use, store, publicly display, publicly perform and transmit the Online Ad;  and (b) to incorporate the hypertext reference links of the Advertiser’s website or websites,  and (c)  to display the Advertiser’s trade names, trademarks or service marks in the Online Ad.

4. Proprietary Rights.

4.1 FWI Ownership.

Except as provided in 4.2 the Advertiser acknowledges that the FWTI website(s), including, without limitation, all trade names, trademarks, service marks, content, text, images, software, functionality, page and other design and layout, media and other materials therein, is a work or collective work, proprietary to or licensed by FWTI, protected under copyright, trademark and other intellectual property laws, whether or not developed by FWTI or by any other person. Any intellectual property rights in designs prepared by FWTI shall remain the property of FWTI and Advertisements including such designs may not be reproduced without the consent of FWTI.

4.2. Advertiser Ownership.

The Advertiser retains all right, title and interest (including copyright and other proprietary or intellectual property rights) in the content of the Online Ad, Advertiser’s trade names, trademarks and service marks therein, whether or not developed by Advertiser or any contractor, subcontractor or agent for Advertiser.

4.3 Advertisement link.

If an Advertisement links to another site, the Advertiser is responsible for maintaining such link and for the content of the linked site. FWTI may remove any Advertisement that contains content linked to a site that, in FWTI’s opinion, is defamatory or objectionable or will bring FWTI into disrepute. The Advertiser will indemnify FWTI from and against any claims or liability arising from links contained in an Advertisement.

4.4 Unacceptable Content.

FWTI  reserves the right, at any time and in FWTI ’s sole discretion, to refuse to display the Online Ad or any portion thereof that: (a) fails to conform to the format and technical specifications,   (b) may constitute or is the subject of a notice or claim of any alleged violation, such as  false designation  of origin, false advertising or unfair competition  under the law of any jurisdiction,  (c) contains or is alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation or infringes any proprietary, intellectual property, contract or delictual right of any person; (d) contains any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, racist, vulgar, threatening or malicious; (e) contains any spy ware, web bug, web beacon or any similar hidden or transparent code, script, or routine designed to gather or track information  about FWTI  or the users of the FWTI website(s); or (f) which FWTI  determines in its sole judgment to be detrimental to its corporate image.

5. Advertiser/Agency Acts and Liability.

FWTI may rely on the acts and representations of any duly appointed Agency as the acts and representations   of the Advertiser and as such binding on Advertiser. Any Agency submitting an advertisement agrees to be jointly and severally liable with Advertiser for all resulting fees due to FWTI , regardless of whether Advertiser had already  paid  the Agency for those fees or not.

6. Fees and Payment.

6.1 Fees.

The Advertiser shall pay to  FWTI  the agreed advertising fees in the amounts  due and  payable at the times and in the amounts  as agreed to in the subscription, and into such account as FWTI may from time to time dictate.

6.2 Taxes.

The Advertiser shall be solely responsible for and shall pay all sales, use, service or other taxes, duties or levies of any governmental entity (exclusive of taxes on FWTI ’s net income), including interest and penalties thereon, if any, relating to the Services, whether or not stated in any invoice to Advertiser. Fees are exclusive of applicable Value Added Tax that the Advertiser shall additionally be liable for to FWTI in the event that such tax has to be paid in a particular domicile.

6.3 Interest and Collection.

The Advertiser agrees that thirty (30) days after the initiation date, any unpaid Fees shall accrue interest at the higher of the RSA. Prime Rate of interest plus 3% per month or the maximum “Court interest rate” allowable under applicable law (currently 15, 5%) and the Advertiser shall thereafter pay all such interest in addition any Fees due. The Advertiser shall furthermore pay all costs of collection, including attorney’s fees and costs on attorney and own client scale in the event that any collection effort or action is required for FWTI to collect the Fees.

7. Warranties and Disclaimer.

7.1 Advertiser Warranty.

The  Advertiser warrants to FWTI  that: (i) the Advertiser has the right and authority to enter into and perform its obligations  under this Agreement; (ii) the Online Ad shall conform to the description and  specifications  set forth in the application;  (iii) the Online Ad shall not constitute or be the subject of a notice or claim  of any false designation  of origin, false advertising or unfair competition under the law of any jurisdiction;  (iv) the Online Ad does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that actually or potentially violates any applicable law or regulation, or infringes any proprietary, intellectual property, contract or delictual right of any person or misappropriates a person's trade secrets, name, likeness or identity; (v) the Online Ad does not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials or link that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, racist, vulgar, threatening or malicious; (vi) the Online Ad contains no viruses, worms, malicious code, trap doors, back  doors, timers, clocks, counters, FTP servers, or other limiting routines, instructions or designs, and no  web beacons, web bugs, spy ware or other similar hidden or transparent code, script, or routine  designed to gather, track or transmit information about FWTI or the users of the FWTI website(s); and (vii) that the Advertiser has the right to grant the license to FWTI herein and to authorize the worldwide copying, display and transmission  of the Online Ad content.

7.2 FWI Warranty.

FWTI represents and warrants to the Advertiser that: (i) FWTI has the power and authority to enter into and perform its obligations under this Agreement; and (ii) FWTI shall perform its obligations under this Agreement in a commercially reasonable manner.

7.3 Disclaimer.

The services and site are provided “as is” without warranty of any kind, express or implied. FWTI does not warrant that the services or site will be uninterrupted or error free, nor does FWTI make any warranty as to the performance or any results that may be obtained by use of the services or site. Except as expressly stated at section 7.2, FWTI makes no other warranties, express or implied, including, without limitation, any implied warranties of merchantability and fitness for a particular purpose, concerning the subject matter of this agreement.

8. General.

8.1 Independent Contractors.

The Parties and their respective personnel are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

8.2 Assignment.

The Advertiser may not assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part without the prior written consent of FWTI.

8.3 Waiver.

No waiver of any provision or of any right or remedy contained herein shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy shall constitute a waiver of any other right or remedy, or of future exercise of it..

8.4 Severability.

If a court of competent jurisdiction determines that any part of the Agreement is invalid or unenforceable, then the invalid or unenforceable part will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original part and the remainder of the Agreement shall continue in effect.

8.5 Notice.

The Advertiser’s electronic  confirmation and indication of acceptance of these T&C’s  when submitting his subscription  notices shall be regarded to be  in writing and shall be deemed to be delivered when received by e-mail,  or otherwise when a hard copy subscription is received by land mail. All notices shall be directed to the parties at the addresses given, to wit FWTI’s address as advertised on its website, and the Advertiser’s address as indicated in the subscription, or to such other address as either party may, from time to time, elect and designate by written notice to the other party.

8.6 Amendment.

FWTI reserves the right unilaterally to amend these T&C’s at any time, provided that such amendments will not apply to any running advertisement at the time.

8.7 Governing Law and Venue.

This Agreement is made in and shall be governed in all respects by the laws (acts)   and common law of the Republic of South Africa without regard to its conflict of laws principles. The Advertiser consents to and waives any objections to the exclusive personal jurisdiction of the Republic and courts in South Africa, for the determination of any claim or controversy arising out of or relating to the Agreement. The Advertiser also waives any objections to venue in such courts due to inconvenient forum or any other basis.

8.8 Survival.

The definitions in the T&C’s and the respective rights and obligations of the parties in terms thereof, shall survive any termination or expiration of this Agreement.

8.9 Entire Agreement.

The T&C’s, together with all other relevant documents and communications, whether in writing, or whether in electronically captured form and which forms part of the subscription and agreement as defined herein and which are incorporated by reference, constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter, superseding all prior or contemporaneous proposals, communications and understandings, whether oral or written.

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