Terms and Conditions
All services supplied by Trial Run Media (Pty) Limited, registration number 2018/521803/07 (“Trial Run”) shall be made and supplied on the following terms and conditions (“this Agreement”). Similarly, the use of the services provided by Trial Run will be governed by the terms and conditions in this Agreement. This Agreement shall take precedence over any other terms and conditions, which may be contained in the Client’s acceptance of order, or other client documentation, and may only be altered with the express written agreement of Trial Run. Any conflicting statements in any acceptance of order or other documentation issued by the Client shall be null and void, unless such special terms have been expressly agreed to in writing by Trial Run.
In this agreement unless the context indicates a contrary intention –
2.1. clause headings are for convenience only and shall not be used in its interpretation;
2.2. an expression which denotes any gender includes the other genders and a natural person includes an artificial person and vice versa;
2.3. the singular includes the plural and vice versa.
2.4. Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:
2.4.1. “Client” means the Party accessing the Website and/or receiving or to receive services from Trial Run;
2.4.2. “Trial Run’s Associates” means Trial Run’s officers, servants, agents or contractors or any other persons in respect of whose actions Trial Run may be held to be vicariously liable;
2.4.3. “Parties” means Trial Run and the Client;
2.4.4. “Scope of Work” means any cost estimate, quotation, document, proposal or correspondence from Trial Run to the Client describing the cost of the campaign, the duration of the campaign and any other specific details agreed to between the Parties. The Scope of Work will act as annexure to this agreement and all terms of this agreement will govern the Scope of Work, as if specifically incorporated therein;
2.4.5. “Services” means an automated marketing, gifting, sampling and data capture campaign delivered through an Automated Business Intelligence Engine (ABIE).
2.5. Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that the term has not been defined in this interpretation clause.
2.6. Unless inconsistent with the context or save where the contrary is expressly indicated:
2.6.1. if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement;
2.6.2. a reference to “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “Business Day” shall be any day other than a Saturday, Sunday or official public holiday in the Republic. Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hundred hours and thirty minutes) and 17h00 (seventeen hundred hours) on any Business Day. Any reference to time shall be based upon South African Standard Time;
2.6.3. when any number of days is prescribed in this Agreement, same 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 case the last day shall be the next succeeding Business Day;
2.6.4. in the event that the day for performance of any obligation to be performed in
terms of this Agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;
2.6.5. any reference in this Agreement to this Agreement or to any other agreement or document shall be construed as a reference to this Agreement or (as the case may be) such other agreement or document, as the same may have been, or may from time to time be, amended, varied, novated or supplemented;
2.6.6. no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a party to this Agreement;
2.6.7. a reference to a Party includes that Party’s Permitted Successors.
2.7. The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.
2.8. Where in this Agreement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
2.9. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
2.10. Any Cost Estimates, Scope of Works, appendices and schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such appendices and schedules.
3.1. This Agreement governs all and any Services provided by Trial Run. The operation of these terms and conditions may only be amended by Trial Run in a subsequent agreement entered into and signed by both Parties.
3.2. By accepting and/or receiving the Services, the Client agrees to be bound by this Agreement.
4. Appointment and Duration
4.1. This Agreement commences once there has been any engagement between Trial Run and the Client.
4.2. Clauses 7, 8, 9 and 11 as well as such other clauses which are intended to survive termination as set out below, shall survive termination of this Agreement for any reason.
5. The Services
5.1. The use of the Services of Trial Run allows you to run a sampling, loyalty, promotion, sales acquisition or retention campaign/promotion, with real time tracking of your campaign through the Trial Run dashboard. You receive instant data capture and access to an instant and personalized follow-on marketing campaign.
5.2. The consumer data is lawfully collected by offering a free trial option to consumers who have requested it and provided their data to get it. All data is obtained in compliance with the Protection of Personal Information Act. This allows more personalized engagement to encourage purchase.
5.3. The Services entitle you to:
5.3.1.Automatic data capture for follow-up marketing campaigns
5.3.4.Follow up marketing campaigns
5.3.5.Targeted advertising to your captive audience
5.4. Upon signing a cost estimate, a purchase order is to be issued and delivery of your samples will be scheduled. Once the deposit is paid in accordance with clause 7 below your samples will be loaded in to the ABIE machine and your campaign will commence.
5.5. The Parties expressly record that each instance of the Services constitutes a separate and distinct service, and nothing set out in this Agreement shall be construed as obliging Trial Run to render all such Services as a single, indivisible service.
6. Delivery and Collection of Your Products
6.1. Your products may only be delivered to Trial Run or its authorised representative, once the deposit has been paid, or as otherwise agreed in writing by Trial Run.
6.2. Should you wish to change a sample or stop showcasing a sample, all such products must be collected by you within 30 days of notification of the change or termination of the showcase, after which Trial Run shall not accept any responsibility for the products.
6.3. You are required to have appropriate insurance to cover any damage to your products during the campaign. Trial Run cannot be held liable for the cost of any damage incurred to your products during the campaign.
7.1. Trial Run shall invoice you for 50% of the cost of the campaign upfront for all campaigns regardless of duration. Payment of the deposit is to be made at least 14 (fourteen days) prior to the commencement of the campaign.
7.2. You will be billed monthly for the short messages services (Sms’s) sent on your behalf to the consumer. This is a variable cost that will depend on the number of Sms’s sent during the month.
7.3. Duration of the campaign:
7.3.1. In the event that your campaign is scheduled for three months, the balance of the campaign cost will be invoiced at the end of the campaign and is payable with 30 days of the date of the invoice.
7.3.2. In the event that your campaign is scheduled for longer than three months but less than six months, 20% of the campaign cost will be invoiced after three months and the balance of the campaign cost at the end of the campaign.
7.3.3. the balance of the campaign cost will be invoiced at the end of the campaign and is payable with 30 days of the date of the invoice.
7.3.4. In the event that your campaign is longer than 6 months, 20% of the campaign cost will be invoiced after three months, a further 20% of the campaign cost will be invoiced after six months and the balance at the end of the campaign.
7.4. Trial Run is not responsible for non-performance of third party suppliers not caused as a direct result of Trial Run’s actions or non-actions, but will provide reasonable assistance to the Client in recovering wasted costs where applicable.
7.5. Unless otherwise agreed in writing, our fees shall escalate on the 1st of January of every year.
7.6. In the event that you fail to timeously effect payment of any amount due to Trial Run in terms of this Agreement, Trial Run shall be entitled to suspend the provision of the Services in terms of this Agreement for any period in which any payment remains outstanding. Trial Run shall be entitled to charge interest on all unpaid invoices at a rate of 2% per month.
7.7. The Client agrees that it shall pay all Trial Run’s expenses in recovering any amounts the Client owes Trial Run, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
8.1. Subject to clause 8.2, both Parties shall at all times treat all information in connection with and/or relating to the other Party, its business and all matters incidental thereto and which was if in writing, marked ‘confidential’ or similarly; and/or if disclosed orally, was confirmed at the time of such disclosure as constituting confidential information and was confirmed in writing within 14 (fourteen) days as constituting confidential information, (“the Confidential Information”), as strictly confidential and shall not, without the prior written consent of the other Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of such other Party) disclose such Confidential Information to any Party, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.
8.2. Each Party may disclose Confidential Information to its officers, employees and subcontractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof. Each Party shall inform any officer, employee or sub-contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any third party (other than those persons to whom it has already been disclosed in accordance with the terms of this Agreement), on the basis that the disclosing Party is responsible for any disclosure, in breach of this 8.2, by the person to whom it is disclosed.
8.3. Notwithstanding the stipulations of clause 8.1, Confidential Information shall not include, any information which, at the time of disclosure, is generally known by the public and any competitors of the disclosing Party, is required to be given, made or published by law or under the rules and regulations of any relevant stock exchange or any applicable regulatory authority.
9. Prohibition on Solicitation or Interference
9.1. The Client shall not solicit, offer work to, or contract with, whether as a partner, , directly or indirectly, any of Trial Run’s personnel who are directly involved in the provision of
the Services, during the provision of the Services or during the 12 (twelve) months thereafter.
9.2. The Client shall not knowingly, for the duration of this Agreement and for a period of 1 (one) year after this Agreement terminates for any reason, furnish any information or advice to anyone else which results in any staff member or any representative, agent or Client of Trial Run to terminate his employment with Trial Run and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by Trial Run.
9.3. Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.
10.1. To the fullest extent permissible by law, Trial Run disclaims all warranties of any kind, whether express or implied in respect of the Services, and the Client utilises the Services at its own risk.
10.2. The Client agrees that Trial Run is unable to and is not required to guarantee a particular return on investment or result from the use of the Services.
10.3. The Client agrees that neither Trial Run nor Trial Run’s Associates shall be liable in respect of any loss or damages however arising and whatever the cause, in particular
pursuant to and in furtherance of this Agreement.
10.4. In the event that Trial Run is found to be liable to the Client for a particular act or omission then Trial Run’s liability to the Client pursuant to the provisions of this
Agreement shall furthermore be limited to the total amount of the fees charged and paid by the Client in the year in which the liability arose.
11.1. The Client warrants that it owns the copyright or has the authority to provide the Services. This includes but is not restricted to any images, trademarks, software, hardware, graphics, illustrations, photographs, pictures, logos, copy text or any other media.
12. Intellectual Property
12.1. All software, hardware, know-how and Service elements remain the intellectual property of Trial Run and may not be used, copied, reverse engineered, disassembled or attempts made to derive the source code.
12.2. For the purposes of this Agreement “Intellectual Property” shall refer to all patents, trademarks, designs, design rights, copyright (including all copyright in any designs and computer software), source codes, proprietary material, know-how, ideas, concepts, trade secrets, methods, techniques, rights in databases, confidential information and all other intellectual property rights and rights of a similar character whether registered or capable of registration, rights in the nature of any of the aforesaid items in any country or jurisdiction and all applications and rights to apply for protection of any of the same.
12.3. Where the Client provides Trial Run with Intellectual Property to be used by it in performance of the Services the Client shall fully indemnify and hold Trial Run harmless from any and all claims and losses arising out of or in connection with any of the following:
12.3.1. any infringement (actual or alleged) of any third party's intellectual property rights in connection with or arising out Trial Run’s performance of the Services;
12.3.2. any infringement as a result of Trial Run’s use or possession of any documentation or software supplied by the Client; or
12.3.3. any default (actual or alleged) by the Client under any licenses for any third party intellectual property rights.
13.1. The Client hereby indemnifies Trial Run and Trial Run’s Associates from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, willful misconduct and/or gross negligence.
13.2. The Client indemnifies Trial Run against any damage and/ or expense, which Trial Run
incurs as a direct or indirect consequence of the Client’s advertisement or advertising material.
13.3. The Client indemnifies and shall keep Trial Run indemnified against any claim for infringement of intellectual property rights in connection with any information supplied
by the Client to Trial Run and against any and all costs, expenses and damages which Trial Run may incur or become liable for as a result of such infringement.
13.4. Trial Run shall give the Client prompt notice in writing of any claim being made or action threatened or brought against Trial Run and will permit the Client, at the Client’s own expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
13.5. The Client accepts and understands that they are required to approve all works prior to publication or printing. The Client indemnifies Trial Run for the approval of any works that it has approved which subsequently may not be correct or not to the Client’s standards.
14.1. The Client may terminate this Agreement, or any particular Services, upon written notice to Trial Run of intended cancellation of the Services. Any such cancellation will
be subject to the provisions of clause 14.2 below
14.2. Should a Client wish to cancel a campaign at any time that is:
14.2.1. less than 14 (fourteen) days prior to the scheduled commencement date of the campaign, the Client will receive a 50% (fifty percent) refund of the monies paid
to Trial Run, less any disbursements paid by Trial Run that cannot be refunded by the relevant supplier;
14.2.2. At any time after the commencement of the campaign but prior to the agreed termination date scheduled for the campaign, the Client will receive no refund and will be liable for any disbursements paid by Trial Run that cannot be refunded by any relevant supplier.
14.3. Over and above the cancellation fees set out in clause 14.2 above, the Client shall pay Trial Run for all costs incurred in removing the samples from the ABIE machine, Services already performed, and expenses incurred by Trial Run up to and including the effective date of the termination of this Agreement.
14.4. The respective confidentiality and prohibition on solicitation obligations under this Agreement shall continue for a period of 2 (two) years following the termination of this Agreement. The other provisions of this Agreement that give either Party rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement.
15. Force Majeure
15.1. If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour,
government interference or control, or any other cause or contingency beyond the control of that Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.
15.2. Any Party invoking force majeure shall, upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 90 days then the Party who shall not have invoked the force majeure shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.
Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations
under and/or in terms of this Agreement except with the prior written consent of the other Party.
17.1. Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within seven business days of receiving written notice from the other Party (“the Aggrieved Party”) requiring
the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
17.1.1. Subject to clause 14, cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or
17.1.2. claim specific performance of all the Offending Party’s obligations whether due for performance or not,
17.1.3. in either event without prejudice to the Aggrieved Party’s right to claim damages.
17.2. If any of the following events, each of which shall be separate from the others, occur, both parties shall be able to terminate this Agreement with immediate effect upon
17.2.1. Either party is placed in provisional or final liquidation or business rescue or if it commits an act which on the part of a natural person would be an act of insolvency as defined in the Insolvency Act, 1936; or
17.2.2. Either party makes an arrangement or composition with its creditors generally, ceases or threatens not to carry on business.
18. DISPUTE RESOLUTION AND ARBITRATION
18.1. This Agreement shall be governed by the laws of the Republic of South Africa.
18.2. At Trial Run’s election, any dispute arising under this Agreement, shall be submitted to arbitration in Johannesburg in accordance with the rules of the Arbitration Foundation of South Africa by an arbitrator or arbitrators agreed to by the Parties or, failing agreement, appointed by the Arbitration Foundation of South Africa.
18.3. Notwithstanding, the provisions of 18.1, Either party shall be entitled at its option to institute any legal proceedings which may arise out of or in connection with this Agreement in any High Court having jurisdiction.
19. Domicilium And Notices
19.1. The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any legal notice or the serving of any process, as follows:
19.1.1. Trial Run – 9 The Straight Avenue, Fourways.
19.1.2. The Client – Registered head office or the place of business
19.2. Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.
19.3. Any notice given by either party to the other (“the Addressee”) which:
19.3.1. is delivered by hand during the normal business hours of the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary
is proved by the Addressee, to have been received by the Addressee at the time of delivery;
19.3.2. is posted by prepaid registered post to the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee on the fourth (4th) day after the date of posting.
19.4. 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 it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
20.1. This agreement will constitute the sole agreement between the parties and shall supersede all other agreements and/or representations whether written, oral and/or implied between the parties.
20.2. Neither party shall be bound by any express or implied term, representation, promise or the like not recorded herein. For purposes hereof a “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.
20.3. No addition to, variation, or agreed cancellation of this agreement, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of the parties. For purposes hereof “in writing” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.
20.4. No indulgence which either party (“the grantor”) may grant to the other (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
20.5. If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of this Agreement.
20.6. Nothing in this agreement shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way for any purpose.
21. ACCEPTANCE BY THE CLIENT OF THESE TERMS AND CONDITIONS SHALL BE DEEMED TO HAVE TAKEN PLACE IN THE EVENT THAT THE CLIENT ENGAGES WITH TRIAL RUN FOR THE RECEIPT OF ANY SERVICES. EVERY INSTANCE OF THE SERVICES SHALL BE SUBJECT TO THE ABOVE TERMS AND CONDITIONS.