Terms and Conditions

  1. Definitions

    In these terms and conditions, the following words shall, unless otherwise stated or inconsistent with the context in which they appear, bear the following meanings:

    1. "Agreement" means the written agreement, which is entered into between Touchsides and the Brand Owner for the provision of the Services, which incorporates these Terms and Conditions by reference therein;
    2. "Booking Sheet" means the booking sheet in the form as provided in writing by Touchsides to the Brand Owner from time to time;
    3. "Brand Owner" means the person who purchases Services from the Company;
    4. "Business Day" means any day other than a Saturday, Sunday or gazetted national public holiday in the Republic of South Africa;
    5. "Campaign" means promotional and marketing offers as agreed between the Parties in terms of the Agreement, including but not limited to Rewards, that are offered to Outlets and consumers at Outlets as part of the Rewards Programme, which include blitz, single brand and multibrand campaigns as set out in the Agreement;
    6. "Campaign Cost" means all the costs and expenses to be incurred by Touchsides in relation to the Campaign, including the costs of Rewards offered;
    7. "Campaign Fee" means the campaign fee, as determined in accordance with the Agreement;
    8. "Commencement Date" means the commencement date set out in annexe A to the Agreement;
    9. "Dashboard" means a data insight online dashboard, which provides the Brand Owner with access to information, based on the relevant Package, as set out in the Agreement;
    10. "Data Protection Law" means any data protection or information privacy laws intended to regulate the Processing of data or information and which are applicable to a Party or the performance of a Party's obligations under the Agreement from time to time, and shall include the Protection of Personal Information Act, 4 of 2013 (whether or not it is yet of force and effect);
    11. "Intellectual Property Rights" means all intellectual property rights and equivalent or similar forms of protection existing anywhere in the world including all rights in computer software, know-how, confidential information, trade secrets, databases and data collections, domain names; trade marks, inventions and designs (whether registered or unregistered); all copyright and patents; and all applications, registrations, extensions, re‑examinations and renewals in connection with any of the foregoing;
    12. "Marketing Material" means any marketing materials, including any point of sale or other electronic devices or materials;
    13. "Members" means consumers and Outlets;
    14. "Off-Peak Time Slots" means off-peak time slots as determined by Touchsides and communicated to the Brand Owner from time to time;
    15. "Outlets" means all retailers, taverns, stores or other traders participating in the Rewards Programme;
    16. "Packages" means the packages selected by the Brand Owner, as set out in the Agreement, and "Package" shall mean any one of them as required by the context;
    17. "Package Fee" means the package fee as set out in the Agreement;
    18. "Parties" means the Brand Owner and Touchsides and "Party" means any of them, as the context may require;
    19. "Peak Period Occasions" means peak period occasions as determined by Touchsides and communicated to the Brand Owner from time to time;
    20. "Personal Data" means any information relating to an identified or identifiable natural person as well as all other information for which the Processing thereof requires compliance with Data Protection Law;
    21. "Platform" means the ecosystem, including but not limited to the hardware and software, through which the Rewards Programme and related services are provided by Touchsides to its clients;
    22. "Process" means any operation or activity which is performed on information or sets thereof, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and including any other operation or activity which may be treated or defined as "process" or "processing" in terms of Data Protection Law;
    23. "Reports" means the data insight reports, containing the information, based on the relevant Package, as set out in the Agreement;
    24. "Reward" means any coupon, voucher, airtime, money, product, unit of value or other reward or benefit offered by the Brand Owner as part of a Campaign;
    25. "Rewards Programme" means the Hola Club rewards programme provided and operated by Touchsides or any other programme introduced by Touchsides from time to time;
    26. "Services" means services to be provided to the Brand Owner by Touchsides, as agreed between the Brand Owner and Touchsides in terms of the Agreement;
    27. "Signature Date" means when the Agreement has been signed by each Party (whether or not in counterpart), the latest of the dates on which the Agreement (or any counterpart) was signed by any Party;
    28. "Surviving Provisions" means the provisions of the Agreement related to the definitions and interpretation, indemnities, confidentiality, dispute resolution and miscellaneous matters;
    29. "Terms and Conditions" means these terms and conditions; and
    30. "Touchsides" means Touchsides S.A. Proprietary Limited, registration number 2007/007727/07, a private company incorporated in accordance with the laws of the Republic of South Africa;
  2. Applications of Terms and Conditions
    1. Subject to any variation of these Terms and Conditions in terms of clause 2.3 hereof, these Terms and Conditions shall apply, to the exclusion of all other terms and conditions (including any terms or conditions which the Brand Owner purports to apply under any purchase order or other document).
    2. No terms and conditions endorsed on, delivered with or contained in the Brand Owner’s purchase order or other document shall form part of the Agreement simply as a result of such document being referred to in the Agreement.
    3. No contract varying, adding to, deleting from or cancelling the Agreement (and for the avoidance of doubt, including the terms and conditions contained herein), and no waiver of any right under the Agreement (and for the avoidance of doubt, including the terms and conditions contained herein), shall be effective unless reduced to writing and signed by or on behalf of the Parties.
    4. A Party may not rely on any representation (whether or not made innocently, negligently or deliberately) which allegedly induced that Party to enter into the Agreement, unless the representation is recorded in the Agreement.
  3. Services

    Touchsides shall provide the Services as set out in the Agreement to the Brand Owner.

  4. Non-exclusivity

    The Services in terms of the Agreement are provided to the Brand Owner on a non-exclusive basis. Nothing in the Agreement shall preclude or limit, in any way, the right of Touchsides to provide services that are the same as or similar to the Services provided pursuant to the Agreement, or any other services or products, to any other person (including any person which may be a competitor of the Brand Owner).

  5. Campaigns
    1. Campaigns will be run during Peak Period Occasions and Off-Peak Time Slots.
    2. Touchsides shall, subject to the further provisions of this clause 5, run a Campaign of the Brand Owner if the Brand Owner has:
      1. completed and submitted a Booking Sheet for the relevant Off-Peak Time Slots or Peak Period Occasions and such Booking Sheet has been accepted by Touchsides; and
      2. paid the Campaign Cost related to that Campaign to Touchsides in full.
    3. Subject to clause 5.9 below, the Brand Owner must complete and submit, either by hand or electronically, a Booking Sheet for any Campaign that it wishes to run, together with examples of Marketing Materials as contemplated in clause 5.5.2.1, to Touchsides by no later than 35 calendar days before the date on which the Campaign will commence. Touchsides shall be entitled to accept or reject any Booking Sheet (provided that no Booking Sheet shall be unreasonably rejected) and shall, within 3 calendar days after receipt of a completed Booking Sheet, notify the Brand Owner:
      1. that the Booking Sheet has been accepted; or
      2. that the Booking Sheet has been rejected, in which case:
        1. Touchsides shall provide reasons for such rejection;
        2. the Brand Owner shall be entitled to re-submit the Booking Sheet, amended as necessary to address any reasons for the rejection of the Booking Sheet, to Touchsides within 7 calendar days after receipt of Touchsides' rejection; and
        3. Touchsides shall accept the Booking Sheet if the reasons for the rejection have been addressed to Touchsides' satisfaction (acting reasonably).
    4. Notwithstanding the acceptance of a Booking Sheet or anything to the contrary in this clause 5, Touchsides may notify the Brand Owner at any time if in Touchsides' opinion (acting reasonably) a Campaign or any aspect thereof is inappropriate, objectionable or otherwise unsuitable for any other reason, and in that event:
      1. Touchsides shall provide reasons why the Campaign or any aspect thereof is inappropriate, objectionable or otherwise unsuitable;
      2. the Brand Owner shall be entitled to remedy the inappropriate, objectionable or otherwise unsuitable aspect of the Campaign within 7 calendar days after receipt of the notification from Touchsides; and
      3. if the inappropriate, objectionable or otherwise unsuitable aspect of the Campaign is:
        1. remedied to Touchsides' satisfaction (acting reasonably), Touchsides shall proceed to run the Campaign in accordance with the Agreement; or
        2. not remedied to Touchsides' satisfaction (acting reasonably), Touchsides shall not run the Campaign, all the Brand Owner's Marketing Material in respect of the Campaign that has not been distributed as part of the Campaign shall be returned to the Brand Owner, at the Brand Owner's cost, and the Brand Owner shall not be entitled to any refund of any Campaign Cost already paid to Touchsides in accordance with clause 7.1.1.
    5. The Brand Owner shall, in respect of each Campaign of the Brand Owner that will be run by Touchsides in terms of the Agreement:
      1. provide Touchsides with all information reasonably requested by Touchsides in respect of the mechanics of the Rewards to be issued as part of the Campaign within a reasonable period of time, but in any event by no later than 30 calendar days, before the commencement of the Campaign;
      2. at its own cost, prepare and deliver to Touchsides (or any third party as notified by Touchsides) at a location nominated by Touchsides:
        1. examples of all relevant Marketing Material of the Brand Owner that refers or relates to the Rewards Programme that are proposed to be used at the Outlets in respect of a Campaign for Touchsides' approval, by no later than 35 calendar days before the commencement of the Campaign, which Marketing Materials Touchsides shall be entitled to approve or reject (acting reasonably) by no later than 3 calendar days after receipt thereof; and
        2. all Marketing Materials (including Rewards, to the extent applicable) to be used or distributed at the Outlets in respect of a Campaign, by no later than 18 calendar days before the commencement of the Campaign,provided that Touchsides shall be entitled at any time to withdraw, and shall not be obliged to distribute, any Marketing Materials (other than Marketing Materials that are approved in terms of clause 5.5.2.1) that is, in its opinion (acting reasonably) immoral, offensive or otherwise unsuitable;
      3. before the commencement of the Campaign, provide all further information and assistance reasonably requested by Touchsides in order to be able to (i) run the Campaign; (ii) honour any Reward offered as part of the Campaign and (iii) communicate all information relating to the Rewards and the rules and mechanics of the Campaign to Outlets prior to the commencement of the relevant Campaign; and
      4. comply with all lawful instructions provided by Touchsides from time to time in relation to the Campaign or the Rewards Programme.
    6. The Brand Owner further undertakes to ensure and warrants that:
      1. each Campaign shall (i) comply in all respects with all applicable laws and regulations, (ii) not infringe the rights, including any Intellectual Property Rights, of any person; and (iii) not otherwise be harmful or potentially harmful to Touchsides in any way;
      2. no Campaign shall in any manner be immoral or offensive; and
      3. all information provided to Touchsides pursuant to the Agreement, including relating to any Reward or Campaign to be run in any Outlets, is complete and accurate.
    7. Touchsides shall, provided that the Brand Owner has complied with its obligations in 5.5:
      1. deliver all Marketing Material related to a Campaign to the Outlets before the commencement of the Campaign; and
      2. ensure that all Rewards to be issued in relation to a Campaign are, to the extent applicable, delivered to Outlets and timeously fulfilled.
    8. Touchsides shall rely on the information provided to it by the Brand Owner for any communication to Members related to a Campaign and shall not be responsible for any such information that is included in communication sent to any Members as part of a Campaign. The Brand Owner shall accordingly have no claim against Touchsides for any loss, claims, damages, obligations, liabilities, costs, fines, penalties, charges, debt and expenses of any nature related to any information provided to Touchsides by the Brand Owner and hereby waives any rights that it may have in this respect.
    9. Touchsides reserves the right to, in its sole discretion, amend or waive any timelines stipulated in this clause 5
  6. Dashboard and Reports
    1. Touchsides will provide the Brand Owner with Reports and access to a Dashboard in respect of each Package selected by the Brand Owner, which Reports and Dashboard will contain the information as set out in the Agreement in respect of each SKU selected for purposes of such Package.
    2. Touchsides will update the information on the Dashboard and Reports from time to time.
    3. Touchsides gives no warranties (whether express, implied or tacit, and whether orally or contained in any other document) in relation to or in connection with the Dashboards and the Reports provided to the Brand Owner in terms of the Agreement or any data and information provided in such Dashboards and Reports.
    4. Touchsides may at any time interrupt, restrict or otherwise prevent access to or use of any Dashboard, Report and data due to operational or other reasonable conditions or if Touchsides, in its reasonable discretion, considers it necessary or desirable to do so for any reason.
    5. Access to Dashboards or Reports and all related data is intended for the Brand Owner's internal use only in accordance with the terms of the Agreement and may not be sold, disclosed or otherwise made available by the Brand Owner to any other party, for any reason whatsoever, without Touchsides' prior written consent. It is the Brand Owner's sole responsibility to ensure that all and any passwords exchanged with its personnel are protected at all times.
  7. Fees
    1. Touchsides will issue invoices for the Campaign Cost to the Brand Owner as follows:
      1. Touchsides shall issue an invoice for the anticipated Campaign Cost before the Campaign commences and the Brand Owner shall pay such invoice in full before the commencement of the relevant Campaign; and
      2. Touchsides shall issue an invoice for any further Campaign Cost, in addition to the Campaign Cost for which an invoice has been issued in terms of clause 7.1.1, upon completion of the Campaign and the Brand Owner shall pay such invoice in full within 20 calendar days after receipt of the invoice.
    2. If, after completion of a Campaign, the Campaign Cost is less than the amount that was paid to Touchsides by the Brand Owner pursuant to clause 7.1.1, then the amount with which such payment exceeds the Campaign Cost shall be repaid to the Brand Owner by Touchsides.
    3. Touchsides shall issue an invoice for the Campaign Fee upon completion of the Campaign and the Brand Owner shall pay such invoice in full within 20 calendar days after receipt of the invoice.
    4. Touchsides will issue an invoice for the Package Fee to the Brand Owner on or as soon as reasonably practicable after the date on which the Agreement is signed by both Parties and the Brand Owner shall pay such invoice in full within 20 calendar days after receipt of the invoice.
  8. Warranties and undertakings by Brand Owner
    1. The Brand Owner warrants to and in favour of Touchsides that:
      1. as the Signature Date and the Commencement Date and for the period between those dates:
        1. it has and shall continue to have the necessary legal capacity and powers to enter into and perform each of its obligations under the Agreement and has taken all necessary corporate and/or internal action to authorise the execution and performance of the Agreement;
        2. the execution of the Agreement and performance of its obligations hereunder does not and shall not:
          1. contravene any law or regulation to which it is subject;
          2. contravene any provision of its constitutional documents; or
          3. conflict with, or result in a breach of any of the terms of, or constitute a default under any agreement or other instrument to which it is a party or subject or by which it or any of its assets are bound;
        3. the provisions of the Agreement are and shall remain legally binding and the execution and performance of all rights and obligations imposed on it pursuant to the Agreement constitute legal, valid, binding and enforceable rights and obligations;
      2. for the duration of the Agreement:
        1. it shall not contravene any legislation, regulatory requirements or rulings or codes of practice of any competent authority or industry body that has jurisdiction over and / or is relevant to the performance of its obligations under the Agreement;
        2. any Rewards or Campaign undertaken pursuant to the Agreement shall in no way infringe any rights of any third party, including, without limiting the generality of the foregoing, a third party's Intellectual Property Rights.
      3. The Brand Owner further undertakes that it shall:
        1. market, offer and sell Campaigns and Rewards only to persons who are over any prescribed age limit and otherwise eligible to participate in such Campaign or receive such a Reward in terms of any applicable legislation or regulations; and
        2. in no way (whether by act or omission) do anything that could impair or harm the reputation or goodwill of Touchsides or the Rewards Programme.
  9. Indemnity
    1. Without prejudice to any rights or remedies available to Touchsides arising from any of the provisions of the Agreement, the Brand Owner indemnifies Touchsides against, and holds it harmless from, any and all loss, claims, damages, obligations, liabilities, costs, fines, penalties, charges, debt and expenses (including but not limited to legal costs on an attorney and own client basis, tracing and collection charges and costs of investigation) ("Loss") howsoever arising, which Touchsides may suffer or sustain as a result of, or which may be attributable to:
      1. any Campaign or Reward, including any communication to any Members related to a Campaign;
      2. a breach of any warranty or undertaking given by the Brand Owner in terms of the Agreement or a failure by the Brand Owner to perform any obligation in terms of the Agreement;
      3. a failure by the Brand Owner to exercise the due care and requisite degree of skill, diligence, prudence, responsibility and foresight that can be reasonably expected from an experienced person in the position of the Brand Owner; and
      4. any breach of any third party right, including without limitation any infringement of any Intellectual Property Rights relating to materials provided to Touchsides by the Brand Owner whatsoever.
    2. All payments by the Brand Owner under this clause 9 will be made free and clear of all deductions and withholdings.
    3. The Brand Owner shall forthwith on demand make payment to Touchsides of any Loss against which it is indemnified in terms of this clause 9.
    4. Touchsides shall not be liable in respect of any indirect or consequential loss or damages arising from the Agreement, which are suffered or sustained by the Brand Owner.
  10. Force Majeure
    1. For purposes of this clause 10, "Force Majeure" means an exceptional event or circumstance:
      1. which is beyond Touchsides' control;
      2. which Touchsides could not reasonably have provided against before entering into the Agreement; and
      3. which, having arisen, Touchsides could not reasonably have avoided or overcome.
    2. Force Majeure may include, but is not limited to, exceptional events or circumstances such as fire, prolonged power outage, riot, disorder, strike or lockout by persons other than Touchsides' employees or other personnel and natural catastrophes such as flooding and earthquakes.
    3. Touchsides shall not be liable to the Brand Owner for a failure to perform its obligations, if and to the extent that Touchsides' failure to perform is directly attributable to an event of Force Majeure.
    4. If as a result of an event of Force Majeure, Touchsides is or will be prevented from performing any of its obligations under the Agreement:
      1. Touchsides shall as soon as reasonably practicable give notice to the Brand Owner setting out full details of the event or circumstances constituting Force Majeure, the obligations of which performance is or will be prevented and the reasons for the Force Majeure preventing Touchsides from, or delaying Touchsides from, performing the affected obligations under the Agreement;
      2. having given notice in accordance with clause 10.4.1, be excused from performance of such obligations for so long as such Force Majeure prevents it from performing them; and
      3. Touchsides shall use its best endeavours to minimise any delay in the performance of the Agreement as a result of Force Majeure or overcome or remove the effects of the event of Force Majeure as quickly as possible.
    5. Upon the circumstances of Force Majeure coming to an end, Touchsides shall promptly give notice to the Brand Owner and shall, as soon as reasonably practicable, recommence the performance of the affected obligations.
  11. Confidentiality
    1. Subject to clause 13.1, save as set out below, each Party agrees to keep confidential and not to disclose to any person:
      1. the existence and contents of the Agreement;
      2. any information of or relating to the other Party or its operations or affairs which it has acquired or may acquire prior to or pursuant to the Agreement; and
      3. all information provided to it by the other Party prior to or pursuant to the Agreement, including, in the case of the Brand Owner, all information provided to the Brand Owner in all Reports and by means of any Dashboard, (together "Confidential Information") unless the disclosing Party has received the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed.
    2. Each Party further undertakes not to copy, adapt, alter, modify or change any of the Confidential Information.
    3. This clause 11 shall not prevent the Parties from disclosing Confidential Information to their shareholders, officers, directors, employees, consultants and professional advisers who:
      1. have a need to know (and then only to the extent that each such person has a need to know);
      2. are aware that the Confidential Information should be kept confidential;
      3. are aware of the disclosing Party's undertaking in relation to such information in terms of the Agreement; and
      4. have been directed by the disclosing Party to keep the Confidential Information confidential and have undertaken to keep the Confidential Information confidential.
    4. The obligations of non-disclosure under the Agreement do not extend to information that:
      1. is disclosed to a receiving Party in terms of the Agreement but at the time of such disclosure, such information is in the lawful possession or control of that Party and not subject to an obligation of confidentiality;
      2. is or becomes public knowledge, otherwise than pursuant to a breach of the Agreement by the Party who disclosed such Confidential Information; or
      3. is required by the provisions of any law, or regulation, or during any proceedings, or by the rules or regulations of any stock exchange to be disclosed, and the Party required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure and has consulted with the other Party prior to making such disclosure.
  12. Intellectual Property Rights
    1. The Brand Owner acknowledges and agrees that (i) as between the Parties, Touchsides owns all data and information provided by it through the Platform, Dashboard and Reports and all data collected by it using the Rewards Programme and (ii) Touchsides and / or its licensors own all Intellectual Property Rights arising out of or relating to the provision of the Services, including the Intellectual Property Rights relating to the Platform, Dashboard and Reports ("Touchsides IP").
    2. Subject to clause 12.1, as between the Parties, the Brand Owner is the proprietor of and / or holds rights to the Intellectual Property Rights relating to the Brand Owner's Marketing Material.
    3. Where either Party is provided access to or use of any of the other Party's Marketing Material, the Party shall use it strictly in accordance with the terms of the Agreement and / or only for the purposes contemplated in the Agreement.
    4. As far as the law allows and except to the extent expressly permitted under the Agreement, the Brand Owner shall not:
      1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform, Dashboard, Reports or related documentation (as applicable) in any form or media or by any means;
      2. attempt to de-compile, reverse compile, disassemble, or reverse engineer the Platform;
      3. access all or any part of the Services or Platform or use any Touchsides IP in order to build a product or service which competes with the Services or Platform; or
      4. use all or any part of the Services or Platform to provide services to third parties.
    5. The Brand Owner shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services or Platform and, in the event of any such unauthorised access or use, promptly notify Touchsides.
    6. Touchsides shall not be liable to the Brand Owner, whether in contract, delict, tort, under statute or otherwise (including in each case negligence) for any losses, liabilities, damages, claims, or expenses arising in relation to the Agreement that constitute liability for any claim of infringement of Intellectual Property Rights caused or contributed to by any unauthorised use of Touchsides IP by, or on behalf of, the Brand Owner.
  13. Data Use and Protection
    1. The Brand Owner acknowledges that Touchsides shall Process sales data relating to the Brand Owner's product and/or service offering. Such Processing shall include the collection of such data and the provision thereof to Touchsides' other brand owner clients. The Brand Owner hereby acknowledges that such Processing of sales data is required for purposes of providing the Services. The Brand Owner consents to Touchsides Processing its sales data in the manner contemplated in this clause 13.1.
    2. Touchsides shall take reasonable measures to provide to the Brand Owner only anonymised and/or de-identified information relating to natural persons through the Dashboard and/or Reports. The Brand Owner undertakes that it shall not, and it shall not permit any third party to, re-identify any such information nor attempt to do so.
    3. Due to the difficulty of fully de-identifying information and the development of new data analysis techniques, the Parties acknowledge that Touchsides may inadvertently provide Personal Data to the Brand Owner from time to time under the Agreement despite the reasonable measures taken in terms of clause 13.2
    4. Accordingly, the Brand Owner undertakes that it shall, in respect of all Personal Data provided to it by Touchsides under the Agreement:
      1. strictly comply with all Data Protection Law and with all reasonable provisions and requirements of any policies, procedures, and instructions in relation to the Processing of Personal Data notified to it in writing by Touchsides from time to time;
      2. subject to clause 13.4.1, not Process the Personal Data in any manner or for any purpose other than as set out in the Agreement and to the extent strictly necessary to receive the benefit of the Services; and
      3. not cause Touchsides to breach or contravene any applicable Data Protection Law.
    5. The Brand Owner must immediately notify Touchsides in the event of any non-compliance or breach of any Data Protection Law in respect of Personal Data provided to it by Touchsides.
    6. Any breach by the Brand Owner of its obligations set out in this clause 13, shall be deemed to be a material breach of the Agreement and shall entitle, but not oblige, Touchsides to terminate the Agreement on written notice.
    7. Each Party shall supply on request from the other Party any information and documentation required by such other Party to assess and confirm compliance with the obligations in this clause 13. This information shall be provided to the requesting Party at no additional cost within 10 Business Days of the request.
  14. Breach

    If a Party breaches any provision of the Agreement and the breach is incapable of being remedied or, if it is capable of being remedied, the defaulting Party fails to remedy such breach within 10 Business Days after being notified of such breach by the other Party, then the aggrieved Party shall be entitled (without derogating from any of its other rights or remedies under the Agreement or at law) to:

    1. sue for immediate specific performance of any of the defaulting Party's obligations under the Agreement; or
    2. cancel the Agreement by written notice to the Party in breach, provided that no Party shall be entitled to cancel the Agreement unless the breach is a breach of a material term and the remedy of specific performance or damages would not adequately compensate the aggrieved Party, and in any event to claim any damages arising out of such breach.
  15. Termination
    1. Termination by Touchsides
      1. Touchsides may terminate the Agreement at any time by giving the Brand Owner not less than 30 calendar days' prior written notice.
      2. Touchsides may (in its sole and absolute discretion) terminate the Agreement immediately on written notice to the Brand Owner if it:
        1. suspects any illegal, immoral or other unsuitable behaviour that could potentially bring the reputation of Touchsides into disrepute; or
        2. suspects any abuse or misuse by the Brand Owner of the Platform or any data provided or made available to the Brand Owner in terms of the Agreement.
      3. Upon the termination of the Agreement in terms of clause 15.1.1, Touchsides will be released from the performance of all obligations in terms of the Agreement, including any obligations relating to a Campaign that was scheduled to commence after the date on which the Agreement terminates, provided that Touchsides shall:
        1. continue to run any Campaign that commenced prior to the date on which the Agreement terminates, in accordance with the applicable terms of the Agreement; and
        2. return all of the Brand Owner's Marketing Material that has not been distributed to Outlets and will not be distributed as part of a Campaign contemplated in clause 15.1.3.1.
      4. Upon the termination of the Agreement in terms of clause 15.1.1 or clause 15.1.2, Touchsides shall have no obligation to refund the Brand Owner for any Package Fee or Campaign Cost paid by the Brand Owner in terms of the Agreement, provided that Touchsides' may, in its sole and absolute discretion, elect to do so.
      5. The rights of Touchsides to terminate the Agreement, and any termination of the Agreement, for whatever cause shall be in addition and without prejudice to any other rights and remedies which it may have.
    2. Termination by the Brand Owner
      1. The Brand Owner may terminate the Agreement at any time by giving Touchsides not less than 90 calendar days' prior written notice, provided that notwithstanding any termination in terms of this clause, the Brand Owner shall remain liable to pay the full Package Fee to Touchsides.
      2. Upon the termination of the Agreement contemplated in clause 15.2.1, Touchsides will be released from the performance of all obligations in terms of the Agreement, including any obligations relating to a Campaign that was scheduled to commence after the date on which the Agreement terminates, provided that it shall continue to run any Campaign that commenced prior to the date on which the Agreement terminates, in accordance with the provisions of the Agreement.
  16. Dispute resolution
    1. This clause is a separate, divisible agreement from the rest of the Agreement and shall:
      1. not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Agreement and not to this clause. The Parties intend that all disputes, including the issues set forth above, be and remain subject to arbitration in terms of this clause; and
      2. remain in effect even if the Agreement expires or terminates for any reason whatsoever.
    2. Any dispute arising out of or in connection with the Agreement or the subject matter of the Agreement, including without limitation, any dispute concerning:
      1. the existence of the Agreement apart from this clause;
      2. the interpretation, application and effect of any provisions in the Agreement;
      3. the Parties' respective rights or obligations under the Agreement;
      4. the rectification of the Agreement;
      5. any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating to or in any way connected with the Agreement or any part or portion thereof;
      6. the breach, expiry, termination or cancellation of the Agreement or any matter arising out of the breach, expiry, termination or cancellation; and
      7. any claims in delict, compensation for unjust enrichment or any other claim, whether or not the rest of the Agreement apart from this clause is valid and enforceable, shall be referred, in the first instance, to mediation as set out in clause 16.3, failing which to arbitration as set out in clause 16.4.
    3. If the Parties to the dispute are unable to agree on a mediator or to resolve any dispute by way of mediation within 14 days of any Party to the dispute in writing requesting that the dispute be resolved by mediation, then the dispute shall be submitted at the instance of any Party to and decided by arbitration as set out in clause 16.4.
    4. All disputes which cannot be settled by mediation as described in clause 16.3 shall be finally determined in accordance with the Commercial Arbitration Rules of the Arbitration Foundation of Southern Africa or its successor ("AFSA") without recourse to the ordinary courts of law, except as explicitly provided for in clause 16.9. The Parties to the dispute shall agree on the arbitrator who shall be an attorney or senior advocate (with at least 20 years' experience in commercial legal practice) on the panel of arbitrators of AFSA. If agreement is not reached within 10 Business Days after any Party calls in writing for such agreement, the arbitrator shall be an attorney or senior advocate (with at least 20 years' experience in commercial legal practice) nominated by the Chairman of AFSA for the time being.
    5. Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of AFSA (as last applied by AFSA) before an arbitrator appointed by agreement between the Parties to the dispute or failing agreement within 10 (ten) Business Days of the demand for arbitration, then any Party shall be entitled to forthwith call upon the chairperson of the Johannesburg Bar Council to nominate the arbitrator, provided that the person so nominated shall be an attorney or senior advocate (with at least 20 years' experience in commercial legal practice). The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the attorneys of the Parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the Parties.
    6. The arbitration shall be held in Johannesburg and the Parties shall endeavour to ensure that it is completed within 90 days after notice requiring the claim to be referred to arbitration is given.
    7. The Parties irrevocably agree that, subject to clause 16.8, any decisions and awards of the arbitrator:
      1. shall be binding on them;
      2. shall be carried into effect; and
      3. may be made an order of any court of competent jurisdiction.
    8. The Parties agree that any Party to the dispute may appeal the decision of the arbitrator to an appeal panel of three arbitrators appointed by agreement between the Parties to the dispute, failing which the appeal arbitrators shall be appointed by the Chairman of AFSA.
    9. Nothing contained in this clause 16 shall prohibit a Party from approaching any court of competent jurisdiction for urgent interim relief.
  17. Miscellaneous matters
    1. addresses and notices
      1. A notice shall be deemed to have been duly given:
        1. on delivery, if delivered to the Party's physical address in terms of the Agreement before 17h00 on a Business Day, or if delivered on a Business Day but after 17h00 on that Business Day, or on any day other than a Business Day, it will be deemed to have been given at 08h30 on the first Business Day after it was delivered;
        2. on dispatch, if sent to the Party's then email address in terms of the Agreement before 17h00 on a Business Day, or if sent on a Business Day but after 17h00 on that Business Day, or on any day other than a Business Day, it will be deemed to have been given at 08h30 on the first Business Day after it was sent, unless the addressor is aware, at the time the notice would otherwise be deemed to have been given, that the notice is unlikely to have been received by the addressee through no act or omission of the addressee.
      2. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to that Party notwithstanding that it was not sent to or delivered at that Party's chosen address in the Agreement.
    2. entire contract

      The Agreement (and for the avoidance of doubt, including the terms and conditions contained herein) contains all the provisions agreed on by the Parties with regard to the subject matter of the Agreement, and supersedes and novates in its entirety any previous understandings or agreements among the Parties in respect thereof; and the Parties waive the right to rely on any alleged provision not expressly contained in the Agreement.

    3. no stipulation for the benefit of a third person

      Save as is expressly provided for in the Agreement, no provision of the Agreement constitutes a stipulation for the benefit of a third person (ie a stipulatio alteri) which, if accepted by the person, would bind any Party in favour of that person.

    4. applicable law

      The Agreement is to be governed, interpreted and implemented in accordance with the laws of South Africa.

    5. jurisdiction of South African courts

      The Parties consent to the non-exclusive jurisdiction of the High Court of South Africa (Gauteng Local Division, Johannesburg) for any proceedings arising out of or in connection with the Agreement.

    6. independent advice

      Each of the Parties hereby respectively agrees and acknowledges that:

      1. it has been free to secure independent legal advice as to the nature and effect of each provision of the Agreement and that it has either taken such independent legal advice or has dispensed with the necessity of doing so; and
      2. each provision of the Agreement and the annexes thereto is fair and reasonable in all the circumstances and is part of the overall intention of the Parties in connection with the Agreement.
    7. indulgences

      The grant of any indulgence, extension of any time or relaxation of any provision by a Party under the Agreement (or under any other agreement or document issued or executed pursuant to the Agreement) shall not constitute a waiver of any right by the grantor or prevent or adversely affect the exercise by the grantor of any existing or future right of the grantor. 

    8. cession and delegation

      A Party may not cede any or all of that Party's rights or delegate any or all of that Party's obligations under the Agreement without the prior written consent of the other Parties.

    9. costs
      1. Each Party shall bear that Party's own legal costs and disbursements of and incidental to the negotiation, preparation, settling, signing and implementation of the Agreement.
      2. Any costs, including all legal costs on an attorney and own client basis and VAT, incurred by a Party arising out of or in connection with a breach by the other Party shall be borne by the Party in breach.
    10. good faith

      The Parties shall at all times act in good faith towards each other and shall not bring the other Party into disrepute.

    11. co-operation

      Each of the Parties shall at all times to do all such things, perform all such acts and take all such steps, and procure the doing of all such things, within its power and control, as may be open to it and necessary for and incidental to the putting into effect or maintenance of the terms, conditions and import of the Agreement.

    12. interpretation
      1. In the Agreement (and for the avoidance of doubt, including the terms and conditions contained herein):
        1. references to a statutory provision include any subordinate legislation made from time to time under that provision and include that provision as modified or re-enacted from time to time;
        2. words importing the masculine gender include the feminine and neuter genders and vice versa; the singular includes the plural and vice versa; and natural persons include artificial persons and vice versa;
        3. references to a "person" include a natural person, company, close corporation or any other juristic person or other corporate entity, a charity, trust, partnership, joint venture, syndicate, or any other association of persons;
        4. if a definition imposes substantive rights and obligations on a Party, such rights and obligations shall be given effect to and shall be enforceable, notwithstanding that they are contained in a definition;
        5. any definition, wherever it appears in the Agreement, shall bear the same meaning and apply throughout the Agreement unless otherwise stated or inconsistent with the context in which it appears;
        6. if there is any conflict between any definitions in the Agreement then, for purposes of interpreting any clause of the Agreement or paragraph of any annexe, the definition appearing in that clause or paragraph shall prevail over any other conflicting definition appearing elsewhere in the Agreement;
        7. if there is any conflict or inconsistency between the provisions of the Agreement (which term shall for the purposes of this clause 17.12.1.7 exclude reference to the terms and conditions contained herein) and the provisions of these Terms and Conditions, at any time, the provisions of the Agreement shall prevail over the provisions of the these Terms and Conditions.
        8. where any number of days is prescribed, those days shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which event the last day shall be the next succeeding Business Day;
        9. where the day upon or by 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 next succeeding Business Day;
        10. any provision in the Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by the Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as having not been written (ie pro non scripto) and severed from the balance of the Agreement, without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of such provision in any other jurisdiction;
        11. the use of any expression covering a process available under South African law (such as but not limited to a winding-up) shall, if any of the Parties is subject to the law of any other jurisdiction, be interpreted as including any equivalent or analogous proceeding under the law of such other jurisdiction;
        12. references to any amount shall mean that amount exclusive of VAT, unless the amount expressly includes VAT;
        13. the rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (ie the eiusdem generis rule) shall not apply, and whenever the word "including" is used followed by specific examples, such examples shall not be interpreted so as to limit the meaning of any word or term to the same genus or class as the examples given.
      2. Each of the provisions of the Agreement has been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party responsible for the drafting or preparation of the Agreement (ie the contra proferentem rule), shall not apply.
      3. Except to the extent provided otherwise in the Agreement, the expiration or termination of the Agreement shall not affect the Surviving Provisions or such other provisions of the Agreement which are expressly provided to operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the relevant provisions themselves do not provide for this.