TOPCO Terms and Conditions

1. DEFINITIONS

1.1 “Advertisement” means text, graphics or multi-media content and images displayed and accessible on a website or in a physical print publication.

1.2 “Booking Fee” means the fee quoted by Topco for provision of the Services on the Booking Form, including the Service Charge.

1.3 “Booking Form” means the written confirmation of the quotation provided by TopCo to the Client after consultation and which records the Services requested and the Booking Fee due to TopCo in return for such Services.

1.4 “Cancellation Penalty” means 50% of the total Booking Fee.

1.5 “Client” means any person or entity using the Services offered by TopCo.

1.6 “Deposit” means a non-refundable deposit of 50% of the total Booking Fee, unless otherwise agreed to in writing.

1.7 “Deliverable” means any material in whatever form, including but not limited to certification badges, award entries and Advertisement, and changes thereto, to be delivered by TopCo to the Client as a result of the Services. 

1.8 “Event” means any event planned and presented by TopCo, including but not limited to, awards, masterclasses, virtual events and custom events. 

1.9 “Service(s)” means any service offered by TopCo to a Client, including but not limited to events, conferences, awards, publications and advertising, as detailed on the Booking Form.

1.10 “Service Charge” means 5% (five percent) of the Booking Fee charged by TopCo for administrative fees and costs incurred in respect of the Services, including but not limited to, travelling, transport, sustenance, goods and services purchased on the Client’s behalf, communications, increased digital & marketing expenses or expanded venue arrangements.

1.11 “TopCo” means Top Media and Communications (Pty) Ltd, a limited liability company incorporated according to the company laws of the Republic of South Africa with registration number 2011/105655/07.

 

2. CONTRACTUAL RELATIONSHIP

2.1 Once TopCo and the Client have consulted on the Services required, TopCo will provide the Client with the Booking Form which details the Services selected and the Booking Fee. 

2.2 Once the Client signs the Booking Form, any engagement with TopCo and all Services rendered are subject to the following Terms and Conditions. 

3. TERMS AND CONDITIONS

3.1 In broad terms, this is an agreement between the Client and TopCo that sets out TopCo’s general terms applicable to each client of TopCo and all Services rendered. It is important that the Client reads and understands the contents hereof, as the Client will be bound to these terms.

3.2 If the Client does not agree to these Terms and Conditions, the Client must cease its access and use of the Services immediately.

3.3 These Terms and Conditions include TopCo’s Privacy Policy, which is included herein by reference and can be accessed https://topco.co.za/terms/.

3.4 Due to legal and other developments, TopCo reserves the right to amend these Terms and Conditions at any time and without notice to the Client. It is the Client’s duty to remain apprised of the current version of these Terms and Conditions. Please refer to the last revision date at the top of this document. Should the Client proceed in using the Services subsequent to any amendments having been affected, it would constitute the Client’s acceptance of the Terms and Conditions as amended. 

4. TERM AND DURATION

4.1 This agreement will commence on the date of signature of the Booking Form and will continue in force for a period of three (3) years (“the Term”) or until terminated as set out in this agreement.

4.2 The Client has the right to terminate the agreement at the end of each successive 12 (twelve) month period during the Term by giving TopCo at least 30 (thirty) days prior written notice of such intention, i.e., by the start of the 11th month of each 12 (twelve) month period. 

5. ADVERTISING SERVICES

5.1 TopCo may provide, depending on the options selected by the Client on the Booking Form (if applicable), the following advertising Services:

5.1.1 advice on suitability of Advertisement for publication media; 

5.1.2 advice on suitability placement of Advertisement; and

5.1.3 certification badges after verification of the Client’s business.

5.2 The following items are out of the scope of the Services, and the Client is responsible for providing same to TopCo:

5.2.1 design and editing;

5.2.2 desk-top publishing requirements;

5.2.3formatting of Advertisement.

5.3 TopCo reserves the right to withhold, suspend or change any material from publication and to cancel any publication order that has been accepted.

5.4 The Client agrees to furnish, within seven (7) working days of signature of the Booking Form, all necessary material, including but not limited to any designs, images and artwork, to enable TopCo to meet its deadlines. Should the Client fail to do so, and TopCo does not elect to cancel the Agreement for such breach thereof, the Client will be liable to pay a R 7 500.00 penalty fee to TopCo.

5.5 All images must be supplied in either jpeg or tiff formats at a minimum resolution of 300 dpi, CMYK colour.

5.6 All finished material must be supplied as a pdf file conforming to the following standards:

5.6.1 all fonts embedded/text to path;

5.6.2 printers’ marks as per spec, 5mm bleed.

5.7 All materials supplied by the Client are taken as final; therefore, any changes to materials will incur a fee of R 250.00 per instance / round of changes after final copy approval by the Client.

5.8 All materials supplied is subject to approval by TopCo who may request amendments to the content and/or design at its sole discretion.

5.9 It is the Client’s responsibility to ensure that the Advertisement complies with all applicable law and / or is not in contravention of any law. TopCo reserves the right, in its sole discretion, to reject or refuse the Advertisement or to cease display of the Advertisement should the Client be in breach of this clause. No refund will be provided in such case.

5.10 In the event of the Client not submitting material as and when requested, TopCo will be entitled to repeat material previously provided or request its in-house personnel to prepare appropriate material for inclusion in the publication.

5.11 The Client agrees to any design charges incurred for material to be made up even if the material was originally intended to be “supplied” print ready. In either event the full contract price remains payable.

5.12 If the Advertisement copy does not comply with the publication specifications, TopCo will be permitted to either reject or change the Advertisement copy to comply with the publication specifications. Such changes may include (but are not limited to) reformatting, cropping, resizing and editing.

5.13 It is the responsibility of the Client to check that the publication copy of the Advertisement is correct. TopCo accepts no liability for any error, or in the case of multiple pages, the repetition of an error unless notified to TopCo in writing prior to production.

5.14 Telephonic instructions must in all cases be confirmed in writing by the Client.

5.15 No liability is accepted for losses arising from omissions, failure to publish, the wrong copy, typographical, poor positioning, or any other mistake or error. In case of such losses, the Client is not exempted from contractual obligations.

5.16 If the Client instructs an agency to provide the material to TopCo, TopCo is entitled to deem the material to have been submitted directly to TopCo, and TopCo will not be obliged to confirm with the Client that the Client has approved the material in any way.  TopCo will not be obliged to make payment of any commission to the Agency, and any such commission will be borne directly by the Client, and no reduction in fees will be granted.

6. EVENT SERVICES

6.1 TopCo may provide, depending on the options selected by Client on the Booking Form (if applicable) the following Event Services:

6.1.1 award entries;

6.1.2 presentation and / or lectures on the day of the Event in respect of the relevant topic(s) and / or fields of interest;

6.1.3 workshops, if selected by the Client for attendance by its delegate(s);

6.1.4 speaker slides to each delegate;

6.1.5 parking for delegate(s);

6.1.6 refreshments and snacks;

6.1.7 lunch or dinner (as indicated in the applicable registration information); and

6.1.8 conference material as and when required for the Event.

6.2 The following items are out of the scope of the Event Services, and the Client is responsible for providing same to its delegate or for the benefit of such delegate:

6.2.1 overnight accommodation at the Event, whether prior to or after the Event;

6.2.2 travel to and from the Event;

6.2.3 travel and other insurance for the Delegate(s)’ attendance at the Event.

7. FEES AND PAYMENT TERMS

7.1 Booking Fee.

7.1.1 TopCo will provide the Client with a written quotation in the form of the Booking Form which records the Booking Fee inclusive of the Service Charge.

7.1.2 The Client understands that upon signature of the Booking Form, the Client accepts liability for payment of the Booking Fee and undertakes to honour the timelines for payment thereof, as set out in this agreement.

7.2 Advertising Services.

7.2.1. Unless otherwise agreed to by the parties in writing:

7.2.1.1 the Deposit is payable by the Client within five (5) working days from date of signature of the Booking Form by the Client. No exception will be made for any entity, including but not limited to government entities. 

7.2.1.2 the balance of the Booking Fee is due and payable by the Client within 30 (thirty) days of signature of the Booking Form.

7.2.2 The Client accepts and acknowledges that TopCo will have no obligation to provide any Deliverables or Services until the Deposit is paid.

7.2.3 Should the Client make payment of the full Booking Fee within five (5) working days from date of receipt of the invoice, TopCo will provide the Client with a once off 5% (five percent) discount.

7.2.4 Should the Client not terminate the agreement as set out in clause 4.2, payment for each successive 12 (twelve) month period of the Term will be payable as detailed in clause 7.2 within five (5) working days of the anniversary of the signature date of the Booking Form during the Term.

7.3 Event Services.

7.3.1 Unless otherwise agreed to by the parties in writing, full payment of the Booking Fee for an Event must be received by TopCo within seven (7) working days from date of signature of the Booking Form.  

7.3.2 Notwithstanding clause 7.3.1, should the Event booked by the Client be held on a date that is within seven (7) days of the signature of the Booking Form, the full Booking Fee will be due and payable by the Client upon signature of the Booking Form.

7.3.3 TopCo reserves the right to refuse admission where the Client or a delegate is unable to provide proof of payment and / or TopCo is unable to verify the receipt of payment.

7.3.4 The onus to confirm receipt of payment by TopCo is on the Client, and prior to the Event the Client must ensure it confirms TopCo has received payment.

7.4 Payment.

7.4.1 If applicable, the parties acknowledge the terms of the Public Finance Management Act, 1 of 1999 and accordingly, the Client hereby confirms that the payment terms of these Terms and Conditions and any agreement entered with TopCo have been agreed to because they have been explicitly set out in these Terms and Conditions and the Booking Form signed, and the Client is therefore bound by such agreement.

7.4.2 The Client must pay all amounts due to TopCo in South African rands (unless expressly stated otherwise agreed) without deduction or set-off for any reason. 

7.4.3 Payment of any amount due must be made by direct deposit into a bank account designated by TopCo. TopCo may designate a new bank account or another method of payment by written notice to the Client.  

7.4.4 The Client will be liable for all bank fees and commissions related to the payment, including commissions and charges related to the international transfer of funds.

7.4.5 The Client consents to the receipt of tax invoices in electronic form and must send TopCo proof of payment by email.

7.4.6 Any amount which remains unpaid beyond the date upon which it becomes owing will attract interest at a rate of 2% (two percent) above the prime overdraft rate (percent, per annum) charged by TopCo’s then current bankers from time to time, as evidenced by any manager of such bank, whose authority it will not be necessary to prove, up to a maximum of 24% per annum. Such interest will be calculated daily, from the due date of payment to the date of actual payment, both days inclusive, compounded monthly in arrears and the Client agrees and undertakes to pay such interest.

7.4.7 It is recorded that, unless otherwise agreed in writing, all amounts to be paid by the Client to TopCo are exclusive of any VAT, export duties and any other taxes, duties, fees, costs, and charges raised on the provision of the Services, or which may be attributable thereto, which will be paid by the Client in addition to any amounts owing. 

7.4.8 Any statement issued by TopCo, or its nominated agent, will be prima facie proof of the amounts owed by the Client to TopCo in terms hereof and of the other facts stated therein and should the Client dispute the any aspect of such statement, then the Client will bear the onus of proving that TopCo’s statement is incorrect in such respect.

7.4.9 If TopCo is successful in legal action for the recovery of outstanding fees, then the Client will be liable to pay the costs of suit on the scale as between attorney and own client. 

7.4.10 The Client understands and agrees that any failure to make a payment under this agreement may be reported by TopCo to relevant credit bureaus.

7.5 Debit Orders.

7.5.1 TopCo may, at its sole instance, agree to the Client making payment by way of debit order. In this instance, the Client will enter into a written debit order mandate as provided with the Booking Form. By signing the debit order mandate and accepting these Terms and Conditions, the Client authorises TopCo to draw the agreed to amount against the Client’s nominated bank account. This authorisation is to remain in force until terminated or changed by TopCo or the Client in terms of the agreement. The Client accepts that TopCo may debit its account on a date other than specified. If there are insufficient funds in the nominated account to meet the monthly payment due, TopCo is entitled to track the Client’s account and present the instruction for payment as soon as sufficient funds are available.

7.5.2 The debit order mandate will remain in force until the agreement for the Deliverables or Services is cancelled, subject to the condition that the Client agrees that debits related to cancellation penalties will be honoured before the expiration of the debit mandate. The Client understands that it will not be entitled to reclaim any amount which has been withdrawn from its account in terms of the debit order mandate if such amounts were legally owing to TopCo.

7.5.3 The Client agrees that TopCo may cede, delegate or assign any of its rights or obligations in terms of the debit order mandate without the Client’s consent to TopCo’s affiliates or any successor of all or substantially all of the business or assets of TopCo, provided that TopCo must notify the Client of such event within a reasonable time of it occurring. The Client acknowledges that it may not cede, delegate or assign any of its rights and obligations in terms of the debit order mandate to any third party without the prior written consent of TopCo.

7.5.4 In the event that TopCo agrees to receive payment by debit order, the Client will commit a material breach of this agreement if the Client cancels such debit order without the written consent of TopCo or changes its banking details on which the debit order relies, without giving TopCo prior notification of such change and providing TopCo with correct banking details.

8. INTELLECTUAL PROPERTY

8.1 All intellectual property rights in all materials produced or distributed by TopCo in connection with a publication and / or an event are and will remain the property of TopCo and any unauthorised duplication, event or distribution is prohibited.

8.2 The Client will not during or at any time after termination of these Terms and Conditions acquire or be entitled to claim any right or interest in TopCo’s intellectual property or in any way question or dispute the ownership thereof by TopCo.

9. PERSONAL INFORMATION

9.1 The Client hereby expressly agrees that TopCo may collect, use and share the Client’s personal information that the client provided in using the Services on the basis and with the people as set out in the Privacy Policy available https://topco.co.za/terms/.

9.2 TopCo is permitted to use the Client’s information on its databases and otherwise. Use may include (but is not limited to): internal research, event and or publication reports, marketing, supplying databases to sponsors and or partners.

10. LIMITATION OF LIABILITY AND INDEMNITY

10.1 For the purposes of this clause “damages” means and includes:

10.1.1 all losses, liabilities, and damages relating to or arising from these Terms and Conditions or the Services, howsoever arising, whether out of breach of express or implied warranty, breach of contract, misrepresentation, negligence, vicarious or strict liability, in delict or otherwise, and whether foreseen by either of the Parties or not; and

10.1.2 any legal costs (including legal fees at an attorney and own client scale and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) or other costs, claims or demands.

10.2 To the extent permitted by applicable law, TopCo will not be liable to the Client or any third party for any indirect damages (including consequential, extrinsic, special, or incidental loss or damages which will include but not be limited to loss of property or loss of profit, business, goodwill, revenue, or anticipated savings), or aggravated damages.

10.3 To the extent permitted by applicable law, the Parties agree that the total amount of TopCo’s liability to the Client or any third party for direct damages will not exceed the aggregate of the amounts paid to or accruing to TopCo by the Client for provision of the Service from which the damages arose in the three (3) month period immediately preceding the date on which the cause of action arose.

10.4 The Client will indemnify, defend, and hold TopCo harmless from all damages claimed by any third party against TopCo relating to or arising from these Terms and Conditions or provision of the Services, including without limitation:

10.4.1 breach by the Client of privacy rights, including the infringement of any law governing protection of personal information or cross-border data flows;

10.4.2 the infringement by the Client of any intellectual property right; or

10.4.3 any unlawful act or a breach of these Terms and Conditions by the Client, to the extent that such damages are not caused by TopCo’s breach of these Terms and Conditions.

11. WARRANTIES

11.1 The Client warrants that to the best of its knowledge it has not failed to disclose any fact or circumstance which would, were it known to a reasonable person in the position of TopCo, cause such person not to engage the Client.

11.2 The Client warrants that it has not and will not take any action which is intended, or could reasonably be expected, to harm TopCo or its reputation or which could reasonably be expected to lead to unwanted or unfavourable publicity to TopCo.

11.3 The Client represents and warrants to TopCo that at signature of the Booking Form and at all material times, there is no pending or anticipated claim, suit or proceeding that involves the Client or any of its affiliates that might adversely affect the Client’s ability to perform its obligations under these Terms and Conditions and/or which may have impacted TopCo’s decision to enter into an agreement with the Client. The Client will notify TopCo in writing, within 14 (fourteen) days of the Client’s knowledge of any such actual or anticipated claim, suit or proceeding.

11.4 The Client agrees that no representation or warranties were made to it other than those specified in this document either expressly or tacitly.

11.5 These Terms and Conditions will be binding to the estates, heirs, executors, administrators, trustees, assigns, liquidators, curators or other legal representatives of the Client as fully and effectually as if they had signed this agreement in the first instance and reference to the Client will be deemed to include such party’s estate, heirs, executors, administrators, trustees, assigns, liquidators, curators or other legal representatives as the case may be.

12. CHANGE OF DATE

12.1 While every reasonable effort will be made to adhere to the agreed to and advertised Event / Advertisement publication date, TopCo reserves the right to change Event / Advertisement publication or print dates, or emit features and content, or merge Event / Advertisement publication dates with another Event / Advertisement publication as it deems necessary without penalty and in such situations no refunds, part refunds or alternative offers will be made.

12.2 In the event that TopCo cancels the Event / Advertisement publication for any reason whatsoever, (including, but not limited to any force majeure occurrence) and provide that the Event / Advertisement publication is not postponed to a later date nor merged with another Event / Advertisement publication, the Client will receive a credit note for the amount that the Client has paid to such a permanently cancelled Event / Advertisement publication, valid for up to one year to be used for another TopCo Event / Advertisement publication, if possible. No refunds, part refunds or alternative offers will be made.                       

12.3 TopCo reserves the right to withhold an Advertisement and / or copy from the Event and to cancel any order that has been accepted.

12.4 If the Client wishes to change any date already agreed to and allocated for an Event / Advertisement publication, the Client must provide TopCo with at least 30 (thirty) days’ notice prior to the Event / Advertisement publication. Irrespective of the change of date, the Client understands and agrees that the Booking Fee will still be due and payable within the timelines set out in clause 7, which timelines are calculated from the date of signature of the Booking Form. A change in date will therefore not suspend any payment obligations in any manner whatsoever. 

13. CANCELLATION

13.1 TopCo Cancellation. TopCo reserves the right to cancel any advertising / booking / publication / award at any time with immediate effect if the Client is allegedly associated with any fraudulent or illegal activity or if any directors or officers of the Client are accused of fraudulent or illegal conduct which, in TopCo’s sole determination, materially harms TopCo’s general reputation or would harm TopCo’s reputation by its continued association with the Client. In such instance:

13.1.1 TopCo will be entitled to retract any award awarded to the Client;

13.1.2 the Client will have no legal recourse against TopCo;

13.1.3 the Client will immediately remove mention of the award or TopCo from its website or any of its communications;

13.1.4 the Client will not be entitled to a refund of any amount paid to TopCo; and

13.1.5 TopCo reserves the right to claim damages from the Client as allowed for in these Terms and Conditions.

13.2 Advertising Services.

13.2.1 In the event of the Client not making payment timeously, TopCo will have no obligation to publish the Client’s Advertisement and may cancel this agreement with immediate effect.

13.2.2 In the event that a Client cancels any booking for advertising Services within seven (7) days from signature of the Booking Form, the Client will be liable to pay the Cancellation Penalty. If the Client paid a Deposit, TopCo will be entitled to retain the Deposit as the Cancellation Penalty.

13.2.3 In the event that a Client cancels a booking for Advertising Services more than seven (7) days after signature of the Booking Form, the Client will be liable for payment of the full Booking Fee.

13.2.4 If any cancellation occurs after the Advertisement has been published, the full Booking Fee will be due and payable by the Client.

13.3. Event Services.

13.3.1 The Client will be entitled to cancel a booking for an Event within seven (7) days of signature of the Booking Form at no penalty, unless such Event is due to take place within this period. 

13.3.2 If an Event is scheduled to take place within 30 (thirty) days of signature of the Booking Form, the Client will be liable for payment of the full Booking Fee on cancellation of such Event. 

13.3.3 If the Client cancels an Event:

13.3.3.1 between seven (7) and 30 (thirty) days after signature of the Booking Form, the Client will be liable to pay the Cancellation Penalty, or TopCo will be entitled to retain an amount equal to the Cancellation Penalty, should the latter already have been paid in full by the Client;

13.3.3.2 after 30 (thirty) days of signature of the Booking Form, the Client will be liable for payment of the full Booking Fee; and

13.3.3.3 within 30 (thirty) days prior to the Event date, the Client will be liable for payment of the full Booking Fee

13.3.4 subject to the provisions of clause 13.3.2.No refund or credit (to attend another Event) will be granted to the Client if the Client or its delegate fails to attend the Event.  

13.3.5 If the Client’s delegate is unable to attend the Event for any reason (and provided the Client notifies TopCo, and TopCo confirms receipt of notification) then:

13.3.5.1 the Client can send a substitute delegate; however, the Client must inform TopCo’s customer care department of the substitute delegate’s name and other details (and no additional charges will be levied by TopCo);

13.3.5.2 the Client can select a different Event which delegate(s) may attend: – 

a ) at no extra charge, provided the Client notifies TopCo in writing at least 10 (ten) working days prior to the Event; and

b ) at an additional administration fee of 20% of the Booking Fee, provided the Client notifies TopCo in writing prior to the Event taking place.

13.4 General.

13.4.1 All cancellations must be communicated in writing.

13.4.2 The Cancellation Penalty will be payable within five (5) days from date of cancellation.

13.4.3 Upon cancellation of this agreement for any reason, the Client must deliver to TopCo all originals and copies of materials or Deliverables in its possession, including electronic copies thereof, within five (5) days from the date of cancellation.

14. BREACH AND TERMINATION

14.1 If the Client:

14.1.1 fails to comply with any of its obligations or commits a breach of these Terms and Conditions and fails to remedy the default or breach within five (5) working days after having received a written notice to do so;

14.1.2 fails to make timeous payment of any amount owing to TopCo for Services in terms of the agreement and / or which were rendered, including the timeous payment of the Deposit;

14.1.3 resolves to begin business rescue proceedings as contemplated in chapter 6 of the Companies’ Act 71 of 2008;

14.1.4 is placed in provisional or final liquidation or sequestration, or administration;

14.1.5 enters into any compromise arrangements with its creditors;

14.1.6 defers or suspends payment of all or substantially all of its debts or is unable to pay its debts as and when they fall due;

14.1.7 has judgment entered against it by a Court of competent jurisdiction which has not been satisfied within 30 (thirty) days, unless such Party has taken reasonable steps for the rescission of that judgment, whether by way of appeal, review or other competent procedure, and that execution of the judgment has been stayed for the time being;

14.1.8 is subject to anything analogous to any of the foregoing under the law of any jurisdiction,

TopCo will be entitled either:

14.1.9 to hold the Client in breach of these Terms and Conditions; or

14.1.10 to cancel the agreement.

14.2The provisions of this clause will not affect the rights of TopCo to seek legal redress including a claim of damages in respect of a breach of any of the provisions of these Terms and Conditions, or specific performance, with the Client to pay the costs of suit on the scale as between attorney and own client.

15. JURISDICTION

15.1 These Terms and Conditions are governed by and construed in accordance with the law of the Republic of South Africa; the Client and TopCo both agree to submit any dispute arising out of the use of the Services to the exclusive jurisdiction of the courts of the Republic of South Africa.

16. GENERAL

16.1 These Terms and Conditions contain the record of the entire agreement between the Client and TopCo in respect of the in respect of access to and use of the Services.

16.2 The addresses where the Client will accept service of any notices or other communications under this Terms and Conditions is as per the information that the Client provided to TopCo when accepting the Services.

16.3 If any provision of these Terms and Conditions is found to be invalid by any court having competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions which will remain in full force and effect.

16.4 TopCo’s omission to exercise any right under these Terms and Conditions will not constitute a waiver of any such right unless expressly accepted by TopCo in writing.

16.5 If the whole or any part of a provision of these Terms and Conditions is void or voidable by either party or unenforceable or illegal, the whole or that part (as the case may be) of that provision, must be severed, and the remainder of the Terms and Conditions will have full force and effect, provided such severance does not alter the nature of the agreement between the parties.