Broadcasting and Advertising Terms and Conditions
In these Terms and Conditions:
- ASA means the Advertising Authority of South Africa;
- Accredited Agency means an agency accredited in accordance with Clause 15;
- Advertising Order means an advertising order placed by a Client with MIR;
- Approved Booking Agent means an advertising booking agent approved in writing by MIR for the purposes of these Terms and Conditions;
- Approved Unaccredited Agency means an advertising agent approved in writing by MIR for the purposes of these Terms and Conditions that is not an Accredited Agency;
- MIR means MyiRadio (Pty) Ltd and its owned or controlled subsidiaries;
AWSUM RADIO (PTY) LTD is managed by MyiRadio (Pty) Ltd.
- MIR Material has the meaning specified in Clause 16;
- Claim means any and all proceedings, demands, losses, costs (including legal costs on a full indemnity basis), damages and other liabilities of any nature taken, made or awarded against or incurred by MIR and/or its employees, officers and agents including, without limitation, as a result of claims by third parties;
- Creative Services means creative or production services provided by MIR to the Client;
- Insolvency Event means an act of bankruptcy (in the case of an individual), or if the Client is unable to pay its debts as and when they fall due, enters into any arrangement with its creditors other than in the ordinary course of business, passes a resolution for administration, winding up or liquidation (other than for the purposes of re-organization or reconstruction), has a receiver, manager, liquidator or administrator appointed to any of its property or assets or any petition is presented for its winding up (all in the case of a body corporate);
- Material has the meaning given to that expression in Clause 5;
- Privacy Statement means the privacy statement published in respect of each of the radio stations for MIR published on the websites;
- Terms and Conditions means these terms and conditions as amended from time to time;
1. These (Standard) Advertising Terms and Conditions
These standard advertising terms and conditions (Terms and Conditions) apply to all advertising on platforms (read: online radio stations and websites) (Advertising) owned or controlled by MyiRadio (Pty) Ltd (MIR).
By agreeing to advertise on MIR or by placing an advertising order with any MIR representative (Advertising Order) each Client agrees to be bound by these Terms and Conditions.
These Terms and Conditions cannot be varied except in writing signed by the Chief Executive Officer for the time being of MIR.
2. Advertising Order
A written or online Advertising Order must be completed in respect of all Advertising. Unless expressly agreed by an authorized representative of MIR, it must be executed by an authorized representative of the Client and by an authorized representative of MIR.
3. What Makes Up the Agreement Between Client and MIR
The agreement between the Client and MIR in respect of Advertising will comprise the Advertising Order, these Terms and Conditions and any schedules and attachments to the Advertising Order and any booking confirmations or credit terms applicable pursuant to the Agreement.
In the event of any conflict between any Advertising Order or any schedule or attachment to any Advertising Order, and these Terms and Conditions then these Terms and Conditions will prevail.
4. The Identity Of The Client
For the purpose of these Terms and Conditions and each advertising Agreement the “Client” means;
- the person or company (whom warrants that they have the authority to bind the Client (including any advertising agency) in accordance with these Terms and Conditions) specified as the “client” in the Advertising Order; and
- Where any Advertising or Creative Services has been booked or placed with MIR by an advertising agency includes that agency.
5. Deadlines for Materials
All Materials to be delivered by the Client to MIR must be provided within the following deadlines:
- audio for commercials must be delivered to MIR in a format ready for broadcast (being: MP3-format. 320KBPS. STEREO) no later than 16:00 (4 p.m. GMT+2) FIVE (5) Business Days before the scheduled broadcast;
- in the event that the Client instructs MIR to manufacture (with or without script writing) the audio advertisements (Creative Services), the Advertising Order must be received by MIR (online or in writing) no later than 16:00 (4 p.m. GMT+2) SEVEN (7) Business Days before the scheduled broadcast;
- live scripts prepared by the Client must be submitted for approval by MIR no later than 16:00 (4 p.m. GMT+2) five (5) Business Days before the scheduled broadcast;
- any instructions relating to Materials must be delivered in accordance with the time frames specified above with respect to those Materials.
In submitting any Material or in submitting any changes to Material, the Client must comply with the submission requirements and deadlines set out above or as otherwise notified to the Client by MIR.
MIR will not be obliged to accept any Material, Advertising or order for Creative Services which has not been submitted in this manner or is not otherwise in accordance with this Agreement.
6. Client Undertakings in Relation to Content
MIR permits the submission and posting or linking of audio, images, commentary or any other content submitted by you and other users ("User Submissions"), and the hosting, sharing, and/or publishing of such User Submissions. User Submissions are displayed for entertainment and informational purposes only and are not controlled by MIR. MIR makes no representations that it will publish or use your User Submissions in any way and may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, MIR does not guarantee any confidentiality with respect to any User Submissions.
6.2. Grand of Rights
You shall retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to MIR, you hereby grant the latter a non-exclusive, limited, fully paid-up, royalty-free, worldwide license, to the extent it is necessary in order for MIR to enable your use of the platform.
You also hereby grant to each user of the Platform a non-exclusive license to access your User Submissions through the Platform, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the Platform and these Terms & Conditions.
6.3. User Submissions Representations and Warranties
You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that:
(i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize MIR to use all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by MIR and these Terms & Conditions and to grant the rights and license set forth above, and
(ii) your User Submissions, MIR’s use of such User Submissions pursuant to these Terms , and MIR's exercise of the license rights set forth above, do not and will not:
(a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or
(c) violate any applicable law or regulation.
6.4. User Submissions Prohibited Uses
In connection with your User Submissions, you further agree that you will not:
(i) publish misrepresentations that could damage MIR or any third party;
(ii) submit material that is unlawful, defamatory, slanderous, threatening, pornographic, obscene, vulgar, harassing, harmful, hateful, abusive, racially or ethnically offensive or is otherwise inappropriate;
(vi) impersonate another person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; or
(v) post User Submissions that would be harmful to minors in any manner.
In any case of violation of any of the above user submission rules and requirements or as required by law or regulation, MIR reserves the right to take court action and/or report users to the relevant authorities, for instance but not limited to when a user submission becomes subject of a copyright infringement note.
The Client undertakes and warrants to MIR that no Advertising and no Material provided by or on behalf of the Client will:
(a) breach or infringe the Broadcasting Act no.4. of 1999, BROADCASTING AMENDMENT ACT OF 2002, or the following:
- Independent Broadcasting Authority Act No 4 of 1993
- Triple Inquiry Report
- Department of Communications Rationalization Act No10 of 1998
- Former States Broadcasting Re-organization Act No 91 of 1996
- Broadcasting Act No 4 of 1999
- Broadcasting Amendment Act of 2002
- Broadcasting Regulations
- Sentech Act No 63 of 1996
- Sentech Amendment Act No 44 of 1999
- National Film Video Foundation Act No 73 of 1997
- Films and Publications Act No 34 of 1999
- Independent Communications Authority of South Africa Act No 13 of 2000
- Media Development & Diversity Agency Act No 14 of 2002
- Community Multimedia Services Policy
- Content and Language Development Strategy
- Convergence Bill
(b) infringe copyright, trade mark or other intellectual property or other rights of any person (including any legal or equitable right of confidentiality);
(c) contain material that is obscene, offensive, defamatory, or otherwise unsuitable for broadcast as prescribed by the ASA;
(d) infringe any applicable laws, regulations and advertising and broadcasting codes or standards; or
(e) give rise to any liability on the part of MIR, cause MIR to be in breach of any law by virtue of broadcasting or publishing of the Advertising or utilizing the Material, or result in a claim being made against MIR.
7. MIR Right to Reject Advertising or Material MIR.
MIR Right to Reject Advertising or Material MIR may in its absolute discretion:
(a) at any time and without notice to the Client cancel, reject or refuse to broadcast or continue broadcasting any Advertising or Material without providing any reason for such rejection or refusal at any time prior to, or after, publication of the Advertising, provided this right will not be unreasonably exercised;
(b) or at any time may at its discretion and without incurring any liability to the Client:
(i) Pull of air the advertisement (audio), or refuse to repeat the broadcasting of such advertisement, if so required by the ASA or if the advertisement contains unsuitable material or violates the ASA’s Code of Conduct or the ASA’s prior rulings or the ASA’s directives.
(c) refuse to accept any scripts provided by the Client for live reads which are not approved by MIR.
MIR shall have no liability to the client in respect of any action taken pursuant to this Clause. MIR will at its sole discretion provide the Client with credit which may be used against an alternate campaign subject to availability, or a refund in respect Fees paid for Advertising not broadcast as a result of MIR exercising its discretion not to broadcast pursuant to this Clause.
8. Broadcast Times
(a) All Advertising times not already specified in the Advertising Order must be booked at least 7 Business Days before the scheduled Start Date specified in the Advertising Order.
(b) Subject to availability and these Terms and Conditions, MIR will use reasonable endeavours to broadcast the Advertising in any specified times or periods set out in the Advertising Order or its attachments or requested in accordance with Clause 8(a).
(c) The Client acknowledges and agrees that MIR may at its discretion vary the placement and formatting of Advertising. Such variations by MIR of any such variations by MIR will not in any way affect the obligation of the Client to pay the Fees.
(d) Without limiting the above and subject to Clause 9, if Advertising is broadcast or published outside of any times or periods or other manner identified in the Advertising Order, or is aired otherwise than in accordance with the Advertising Order then MIR may, subject to availability, offer the Client alternate placements on the following basis:
(i) to be considered for alternate placement an ad must be broadcast more than 20 minutes outside of the intended advertising time-slot; and
(ii) alternative placement will not be considered if the ad is broadcast while the scheduled show is still on air
(iii) any alternate placements will be offered on a like for like, one for one basis.
No refund will be available.
9. MyiRadio Application
- The Client must review and reconcile the Client’s entire schedule of bookings with MIR either per email or online at www.myiradio.co.za Any discrepancies arising from this review must be notified to MIR no later than 4 business days before the end of the week.
- In addition to the above reviews, bookings placed by the Client must be checked as follows:
- where bookings are placed more than three weeks from the first on air date the Client must check the recording of that booking and report any discrepancies back to MIR within two business days of making the booking; and
- where bookings are placed less than three weeks from the first on air date the Client must check the recording of that booking and report any discrepancies back to MIR within 24 hours of making the booking.
- Failure of the Client to undertake the above reviews and notify any bookings discrepancies to MIR within the specified timeframes will negate any obligation on MIR to credit, make good, cancel, move or otherwise recompense the Client for any spot which has been confirmed.
10. Payment of Fees
The Client must pay MIR the Fees as upfront via the online debit order system or EFT.
“Fees” means the fees specified in an Advertising Order or otherwise as calculated in accordance with MIR’s standard advertising rates and includes any agreed fees payable in respect of Creative Services.
11. Advertising Rates
The Rates for all Advertising are set out in the Advertising Order or as per other official written agreement.
13. Failure to Pay Fees
If full payment of Fees is not received by MIR on or before the date that such payment is due, or if the Client commits or is the subject of an Insolvency Event, MIR may at its sole election and discretion:
- cancel any credit terms provided to the Client and require immediate payment in full of all Fees;
- immediately and without notice, suspend the broadcast of any Advertising or suspend or cancel all Advertising orders of the Client and terminate any agreement in relation to Advertising not yet broadcast or Creative Services not yet provided;
- commence legal proceedings against the Client for recovery of any outstanding amounts;
- recover from the Client all costs incurred by MIR in the recovery of any amount owed by the Client including any debt recovery or legal costs on a full indemnity basis.
The Client agrees to provide to MIR all information as is reasonably requested by MIR to determine the credit worthiness of the client and its suitability and ability otherwise to meet payment of the Fees.
14. Creative Services
If the Client requires any creative, production or related services (Creative Services) from MIR, the Client must pay MIR additional charges for such services, as set out in the correspondence provided by MIR in respect of the Client’s request for the Creative Services. Creative Services will be subject to the same payment and credit terms and Client obligations as provided for in these Terms and Conditions.
15. Accredited Agency
An “Accredited Agency” for the purpose of this agreement is an agency that has been notified in writing by MIR that it meets the criteria for accreditation as determined by MIR in its sole discretion. The criteria used by MIR to determine whether an agency qualifies as an Accredited Agency, may include but will not be limited to that the agent.
16. Intellectual Property
The Client acknowledges that:
- MIR is permitted to use any Material provided by the Client to MIR for the purposes of the Agreement.
- All intellectual property rights, including but not limited to copyright, in any Material created, produced or written for the Client by MIR or its employees, officers or agents is the sole property of MIR (MIR Material).
- The Client must:
- keep confidential any MIR Material (directly or indirectly) supplied to the Client
- not, without written clearance from MIR, use or exploit MIR Material except for any advertising or promotional campaign placed with MIR; and
- if directed by MIR, on termination of this Agreement deliver up any MIR Material to MIR.
17. Indemnity, Disclaimer and Release
(a) To the extent permitted by law, the Client indemnifies MIR and each of its employees, officers and agents from and against any Claim arising, whether directly or indirectly, from or in connection with a breach by the Client of this Agreement. MIR, or the applicable subsidiary which has entered into this Agreement, holds the benefit of this indemnity and all other rights conferred on MIR and each employee, officer or agent of MIR under this Agreement as trustee.
(b) Without limiting the forgoing, the Client forever releases MIR and each officer, employee or agent of MIR from and MIR accepts no liability for, any Claim, loss or liability arising in any way from or in connection with:
(i) the broadcast or delay or failure to broadcast Advertising or Material (including any errors in any content of any Advertising or Material);
(ii) any mistake or deficiency in any Creative Services provided to the Client by or on behalf of MIR;
(iii) any lack of sound quality or delay in transmission of any Advertising; or
(iv) any representations made by or on behalf of MIR that induced the Client to enter into this Agreement.
18. Liability of MIR
(a) Except as expressly provided in these Terms and Conditions, MIR excludes, to the fullest extent permitted by law, all warranties, representations and conditions whether implied by law, trade, custom or otherwise. In the event that MIR is liable to a Client for a breach of implied warranty or condition that may not be excluded, MIR’s liability will, to the extent permitted by law, be limited to any one or more of the following (at MIR’s option):
(i) in the case of the supply of goods under these Terms and Conditions (if any):
(A) the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods;
(B) the repair of the goods or the payment of the cost of having the goods repaired; or
(ii) in the case of the supply of services under these Terms and Conditions:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(b) In no circumstances will MIR or its employees, officers or agents be liable, whether in tort, contract or otherwise for any indirect loss, loss of profits, consequential loss or special or exemplary damage suffered by the Client or any other person, even if such loss or damages are foreseeable and whether or not MIR has been advised of the possibility thereof.
(c) Without limiting the application of Clause 18, The liability of MIR (including MIR’s officers, employees and agents) to the Client, or any other person, for any and all loss or damage arising in relation to any Agreement and/or Advertising or Creative Services (including from any errors or inaccuracies however caused, whether by negligence, system, software or press failure, mistake, early, late or failure to broadcast Advertising or provide Creative Services will be limited to an amount equal to the Fees paid in respect of that Agreement, Advertising or Creative Services, provided that if the Client does not advise MIR of any error within five days of broadcast of the relevant Advertising or advertisement produced as a result of the Creative Services MIR will have no liability whatsoever.
19. Expiration and Termination of Agreement
(a) Unless terminated earlier the Agreement will expire on the latest End Date specified in the Advertising Order or the completion of the Creative Services (if applicable) and any further advertising and corresponding rates will be subject to renegotiation.
(b) MIR may terminate the Agreement by serving a notice in writing on the Client if:
(i) the Client commits a breach of these Terms and Conditions or the Agreement and fails to remedy such breach within fourteen (14) days after being served with a notice by MIR specifying the nature of the breach and requiring that it be remedied; or
(ii) the Client at any time commits or is the subject of an Insolvency Event or ceases carrying on business or threatens to cease carrying on business.
(c) Termination of this Agreement by MIR does not affect any other rights of MIR under law or equity including the right to recover payment of all Fees that would have been payable under the contract had it not been terminated. In the event of termination of the Agreement, MIR shall invoice for any Fees or other amounts outstanding under the Agreement. All outstanding Fees will become payable on the date specified in the invoice.
The Client may not:
(a) assign to any third party any of its rights under any agreement or any part of an agreement to which these Terms and Conditions apply or any right in respect of advertising space allocated in accordance with such an agreement ; or
(b) place Advertising or commission Creative Services whether directly or indirectly on behalf of third party advertiser(s) whether as an agent or otherwise, except on terms previously agreed in writing with MIR. Advertising are placed or Creative Services will be considered to have been ordered by a Client on behalf of a third party advertiser where, for example (but without limitation), the Advertising promotes or otherwise notifies listeners as to the goods or services of the third party advertiser rather than the Client.
21. Governing Law
This Agreement is governed by the law in force in the Republic Of South Africa.
Unless otherwise stated, any other rules, restrictions, guidelines and terms and conditions that may be posted or made available in connection with a particular feature on the platforms are incorporated by this reference into these Terms & Conditions.
You are solely responsible for compliance with applicable laws, rules, and regulations in connection with your use of the Platform and the Content, including, without limitation, those governing your transmission or use of any software or data.
These Terms & Conditions and any applicable end user license or similar agreements contain the sole and entire agreement between MIR and its users with respect to the Platform, the Content and User Submissions and supersedes any and all other prior written or oral agreements between MIR and its users. If any provision of these Terms & Conditions shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of these Terms & Conditions.
No waiver on the part of MIR of any of these Terms & Conditions will be of any force or effect unless made in writing and signed by a duly authorized officer of MIR. Nothing in these Terms & Conditions are intended to confer on any third party (whether referred to in the Terms & Conditions by name, class, description or otherwise) any benefit or any right under any legislation in any country to enforce any provisions of these Terms & Conditions.
23. Force Majeure
If MIR is prevented from or delayed in complying with an obligation under this Agreement by an event beyond its reasonable control, including but not limited to a telecommunications failure, terrorist attack, war, national emergency, inclement weather, fire, flood, earthquake, natural disaster, change in legislation or shortage or destruction of equipment or materials, performance by MIR of the obligation will be suspended for the period of the delay and MIR will not be liable for any loss or damage suffered by the Client arising from or relating to such delay.
If any provision of these Terms and Conditions or the Agreement is held illegal or unenforceable, then such illegality or un-enforceability shall not affect the remaining provisions of these Terms and Conditions or Agreement which shall remain in full force and effect.
25. Privacy and POPI
MyiRadio (Pty) Ltd may decide to run competitions, promotions, prize draws and other opportunities on the air, on social media platforms and/or this website, and these will be governed by a separate set of terms and conditions. A link to these terms and conditions will be found on the website, alongside details of the specific competition, promotion, prize draw and other opportunities. It is your responsibility to read those terms and conditions for details about the terms that shall apply and any eligibility requirements.
27. Social Media Policy
The position of MIR is that anything posted to a social network by an employee or representative of the brand (including Independent Contractors) should conform to the same standards expected of material we would confidently broadcast.
Station does not discriminate in any contract for programming or advertising on the basis of race or ethnicity and all such contracts will be evaluated, accepted, negotiated and completed without regard to race or ethnicity. Any provision in any contract or order for advertising that purports to discriminate on the basis of race or ethnicity, even if handwritten, typed, or otherwise made a part of a particular contract is hereby rejected.
29. Amendment of Terms and Conditions
MIR may vary these Terms and Conditions at any time in its sole discretion, provided that:
(c) such amended terms will not affect prior agreed Advertising Orders; and
(d) if the Client does not agree with a variation the Client may cease placing orders with MIR
30. Additional Terms Applicable to Radio Broadcast Agreements only.
Client grants all rights required for the broadcast of the Client Materials on the dates and times set forth on the first page of the agreement to all geographic areas serviced by the MIR, including worldwide “broadcast” by means of streaming on the Internet and via mobile telephony and any other manner in which MIR distributes its radio broadcast. For programs, Client shall provide MIR at least one undated backup CD to be used by MIR, in its sole discretion, as a substitute for scheduled programming. Client shall not use any portion of the Client Materials to include content from or promote via broadcast, directly or indirectly, another entity if a benefit (financial or otherwise) has been received or conferred for such inclusion of content or promotion. Client hereby agrees to cooperate with the MIR’s reasonable actions to ensure proper attribution of listeners to the Client Materials, and the MIR reserves the right to take any such actions. Under all circumstances, and without being in breach of the Agreement, MIR shall have the right to substitute a program it deems in its sole discretion to be of greater public importance for the Client Materials. Station shall have no liability for broadcasting all or a portion of a scheduled broadcast at reduced power.
31. Additional Terms Applicable to Internet and/or Online Video, and/or E-Mail Agreements only.
Client grants all rights required for the publication of the Client Materials on the dates and times set forth in the agreement to all geographic areas serviced by the MIR, including worldwide publication by means of Internet and via mobile telephony, e-mail, and any other manner in which MIR distributes its digital, e-mail, and video services. Client hereby agrees to cooperate with the MIR’s reasonable actions to ensure proper attribution of viewers and recipients to the Client Materials, and the MIR reserves the right to take any such actions. All images, video, and other content to be published by MIR must be delivered to MIR in file formats and sizes as specified by Station. If the terms of this Agreement include any hyperlink to Client’s website as part of the publication of the Client Materials, Client grants to MIR the right to include such hyperlinks to Client’s website, and if Client does not timely provide sufficient information to include a hyperlink to a specific web page as part of the publication of the Client Materials, MIR can elect to include a hyperlink to Client’s main webpage. In the event of technical difficulties affecting the publication of all or a portion of the Client Materials, MIR shall have the option to provide “make good” publication of the Client Materials within ten days that provides at least the equivalent distribution of the Client Materials, in which case such “make good” publication shall satisfy MIR’s obligations under this Agreement with respect to the publication of the Client Materials affected by the technical difficulties.
32. Entire Agreement
The Agreement sets out the entire agreement between the parties in relation to the Advertising or Creative Services and supersedes all prior arrangements, undertakings, representations and warranties by or between the parties in relation to such Advertising.