1. ABOUT THIS AGREEMENT
1. These Terms and Conditions together with the Insertion Order form the agreement between the Advertiser and Mediatiz Ltd in respect of Advertising Services.
2. If these Terms and Conditions and the Insertion Order are inconsistent, then the terms of the Insertion Order will prevail to the extent of the inconsistency.
3. If Mediatiz Ltd supplies Advertising Services which are not specified in an Insertion Order these Terms and Conditions still apply.
2. WORDS AND PHRASES
1. In this Agreement:
1. "AD" means an advertisement on LexpressCars.mu;
2. "ADVERTISER" means the person who signs the Insertion Order;
3. "ADVERTISING MATERIAL" means all creative in respect of an Ad including text, graphics, icons, images, contact details, and URL information;
4. "ADVERTISING SERVICES" means the advertising services described in the Insertion Order;
5. "AGREEMENT" means these Terms and Conditions and an Insertion Order signed by the Advertiser and accepted by Mediatiz Ltd;
6. "BUSINESS DAY" means any day excluding Saturday or Sunday or a bank or public holiday in Mauritius;
7. "LexpressCars" means www.LexpressCars.mu;
8. "DEFAULT EVENT" means the events listed in clause 14.2;
9. "FORCE MAJEURE" means an event or circumstance beyond the reasonable control of a Party (without fault or negligence of that Party);
10. "FEE" means the fees and charges for Advertising Services set out in the Insertion Order;
11. "IMPRESSION" means an appearance of an Ad on LexpressCars resulting from a person accessing that website;
12. "INSERTION ORDER" means an order for Advertising Services in the form required by LexpressCars from time to time;
13. "INSOLVENT" means:
1. is unable to pay its debts as and when they fall due or becomes insolvent or makes an assignment, arrangement or composition for the benefit of its creditors or discontinues or ceases to carry on business in Mauritius;
2. has a receiver or receiver manager appointed to the whole or any parts of its assets, or if a mortgage in possession is appointed in respect of any of its assets, or if a resolution is passed for its winding up; or
3. is presented with an application for its winding up.
14. "INTELLECTUAL PROPERTY" means all intellectual property including all present and future registered and unregistered copyright, trademarks, designs, patent, semi-conductor or circuit layout, trade secrets, know how, confidential information, inventions and discoveries;
15. "INTELLECTUAL PROPERTY RIGHTS" means any rights in Intellectual Property;
16. "PUBLICATION DATE" means the start date for the Ad described in the Insertion order;
17. a reference to any party or other person includes that person's successors and permitted assigns;
18. a reference to this or any other document includes a reference to that document as amended, supplemented, novated or replaced from time to time;
19. a reference to a person includes a natural person, corporation, partnership, trust, estate, joint venture, sole partnership, government or governmental subdivision or agency, association, co-operative and any other legal or commercial entity or undertaking;
20. where a party comprises two or more persons any agreement or obligation to be performed or observed by that party binds those persons jointly and each of them severally, and a reference to that party is deemed to include a reference to any one or more of those persons;
21. the words "include" and "including" mean "including but not limited to"; and
22. the headings in this agreement do not affect its interpretation.
3. PLACING AN ADVERTISEMENT
1. In order to place an Ad the Advertiser must:
1. submit an Insertion Order ; and
2. subject to the terms of the Insertion Order, provide all Advertising Material to LexpressCars.
2. If LexpressCars is to create the Ad, separate terms and conditions will apply to the creation of the Ad.
3. LexpressCars is not bound to publish an Ad until the Insertion Order is accepted by LexpressCars. An Insertion Order will be deemed not accepted if the Ad is not published.
4. WHAT THE ADVERTISER WILL DO
1. The Advertiser will:
1. provide all required Advertising Material to LexpressCars not less than 5 days prior to the Publication Date in the format prescribed by LexpressCars from time to time;
2. comply with LexpressCars advertising policy;
3. only place ads for vehicles which the Advertiser is legally entitled to sell; and
4. obtain permission from the owner of Intellectual Property Rights in any third party material included in the Advertising Material.
5. Comply with the Usage Policy and Terms and Conditions of LexpressCars.mu
5. WHAT THE ADVERTISER WILL NOT DO
1. The Advertiser represents and warrants that it will not:
1. submit Advertising Material which;
1. does not comply with all relevant laws
2. infringes the Intellectual Property Rights of any person;
3. is illegal, fraudulent, obscene, offensive, defamatory, or in any way unsuitable for people under the age of eighteen (18) years;
4. is misleading or deceptive or likely to mislead or deceive;
5. comprises anything which may adversely reflect on LexpressCars or any website on which the Advertising Material is published or suggests any endorsement by or affiliation with LexpressCars.mu or any website on which the Ad is published;
2. disclose to any person LexpressCars rate card or this Agreement; or
3. resell, assign or transfer any rights under this Agreement to any person
4. insert any tag, code, cookie or other data tracking or collection device for the purpose of re-targeting LexpressCars Website users on a third party site;
5. link, pool, correlate, resell, transfer, disclose or make available any advertising statistics the result of displaying the creative on the LexpresCars Website for any purpose without LexpressCars’ express written permission;
6. insert links to an external website within the details of an Ad without LexpressCars’ express written approval. Such approval is subject to specific terms and conditions;
7. insert a link from the LexpressCars Website to any external websites or externally hosted application forms without LexpressCars’ express written approval. Such approval is subject to specific terms and conditions.
8. advertise more than one vehicle per Ad on the LexpressCars Website;
9. use the LexpressCars Website to post any pyramid scheme or fraudulent service or false or misleading Ad;
10. ask or require any Ad respondent to pay a processing or administrative fee, charge, cost or any money whatsoever to apply for any vehicle or other item or service advertised on LexpressCars Website, whether such fee, charge, cost or money is asked or required of the respondent in the Ad itself or in any communication with the respondent that takes place as a result of the Ad; or
11. use any feature of LexpressCars Website to send unsolicited commercial email, whether individually or as a group. Response management tools may only be used to communicate with Ad respondents about the specific vehicle Ad to which they have responded.
6. PUBLICATION OF ADS
1. If accepted, LexpressCars will use its best endeavors to publish the Advertiser’s Ad as set out in the Insertion Order on the terms and conditions of this Agreement.
2. The Advertiser acknowledges and agrees that
1. LexpressCars’ ability to provide the Advertising Services is dependent upon the Advertiser and third parties performing their obligations. If LexpressCars is unable to provide the Advertising Services as a direct or indirect result of any act or omission of the Advertiser or any third party or Force Majeure the Advertiser will have no remedy against LexpressCars in relation to any delay or any failure to provide the Advertising Services.
2. while every endeavor will be made to publish the Advertiser’s Ad as set out in the Insertion Order, LexpressCars will not ( other than as set out in clause 12) be liable for any error, omission or failure to publish the Ad in the form ordered, including acts or omissions of LexpressCars, its employees or agents.
3. LexpressCars may without notice or liability, refuse to publish, withdraw or terminate the publication of an Ad if:
1. the Advertiser is in breach of this Agreement; or
2. LexpressCars determines, in its absolute discretion, to refuse to publish, withdraw, amend or terminate the publication of an Ad.
4. Subject to the terms of the Insertion Order, LexpressCars has absolute editorial control in relation to the publication of the Advertiser’s Ad, including, but not limited to the format, content, position and placement of the Ad.
5. If an Advertiser advertises more than one vehicle in the one Ad, then LexpressCars reserves the right to enforce Clause 5 (h) by posting a separate and distinct advertisement for each vehicle and charging the Advertiser an additional Fee for each extra vehicle advertised in the original Ad or Insertion Order.
7. CHANGE REQUESTS
1. The Advertiser may, after submitting an Insertion Order but prior to the Publication Date, request in writing changes or variations to the Insertion Order ("Change Request").
2. LexpressCars will, as soon as practicable, advise the Advertiser:
1. if it accepts the Change Request;
2. any variation to the Fees;
3. any changes to the terms and conditions of this Agreement which may be required to implement the Change Request; and
3. any impact which implementation of the Change Request is expected to have on the ability of LexpressCars to perform its obligations in accordance with the Insertion Order.
4. LexpressCars will have no obligation to proceed with a Change Request until such time as both parties agree in writing and the Advertiser has paid any additional Fee.
8. SERVICE LEVELS
1. Subject to the Insertion Order, the Advertiser acknowledges and agrees that LexpressCars makes no representation or warranty with respect to the continuous accessibility or availability of LexpressCars Website or the number of Impressions, click-throughs or like metrics.
2. LexpressCars provides no warranty to Advertisers that services generally available through LexpressCars Website will be uninterrupted or error free. LexpressCars agrees to use its reasonable endeavours to ensure that any disruptions to or a denial of access to LexpressCars Website will be remedied as quickly as possible.
3. LexpressCars cannot and does not guarantee or warrant to the Advertiser that files available for downloading through LexpressCars Website or delivered via electronic mail through LexpressCars Website will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. The Advertiser is responsible for implementing sufficient procedures and checkpoints to satisfy their particular requirements for accuracy of data input and output, and for maintaining a means external to LexpressCars Website for the reconstruction of any lost data.
9. CANCELLATION OF ADVERTISEMENTS
1. The Advertiser may cancel an Ad and terminate the Agreement without cause, on written notice to LexpressCars, not later than 30 days prior to the Publication Date. LexpressCars reserves the right to charge the Advertiser in accordance with the Agreement where the Agreement is terminated with less than 30 days written notice.
10. HOW AND WHEN LexpressCars FEES ARE PAYABLE
1. Any applicable Fees will be set out in the Insertion Order and the Advertiser agrees to pay such Fees in accordance with this clause 10 as set out in the Insertion Order.
2. Fees are:
1. invoiced in respect of the month the Insertion Order is received; and
2. payable with 14 days of invoice.
3. The Advertiser acknowledges and agrees that no fee or other payment will be paid by LexpressCars to the Advertiser for placing an Ad.
4. If the Advertiser fails to pay any Fees by the required time, LexpressCars may require that the Advertiser pay:-
1. interest to LexpressCars, on the daily amount outstanding, at a rate of 12.5% per annum until all monies due are paid; and
2. any expense (including legal fees) incurred by LexpressCars in recovering the outstanding Fees from the Advertiser.
5. LexpressCars also reserves the right to suspend, disable, cancel or terminate the Advertiser’s account with LexpressCars without notice and refuse to supply further services to the Advertiser or entities associated with the Advertiser..
11. LIMITATION OF LIABILITY
1. Other than as set out in this Agreement, and to the extent permitted by law, all implied and express warranties in respect of the Advertising Services are hereby excluded.
2. Subject to clause 11.3, LexpressCars’ liability to the Advertiser under this Agreement is limited, in aggregate in respect of all claims or causes of action, to the sum of Fees paid or payable in respect of the Advertising Services to which the claim or cause of action relates.
3. In no event will LexpressCars be liable to the Advertiser for loss of use, production, profit, revenue, business, data, contract or anticipated savings or for delay or for any financing costs or increase in operating costs or any economic loss for any indirect or consequential loss or damage.
4. The Advertiser acknowledges and agrees that:
1. LexpressCars Website functions merely as a medium through which individuals seek to purchase or sell vehicles;
2. LexpressCars does not vet nor is it responsible for vetting Ad respondents; and
3. LexpressCars is not liable in anyway whatsoever for any loss, costs, damages or loss of profits sustained as a consequence of the Advertiser engaging in any transaction with any person sourced through LexpressCars Website
5. Any amount claimed by the Advertiser pursuant to clause 11.2 will be reduced proportionally to the extent that any loss, damage, liability, claim or expense is directly or indirectly caused, or contributed to, by the Advertiser.
12. SUSPENSION OF ADVERTISING SERVICES
1. LexpressCars may suspend the Advertising Services in the event of a Default Event by the Advertiser.
13. TERMINATION OF AGREEMENT
1. LexpressCars may terminate this Agreement on 30 days written notice to the Advertiser.
2. A Party may terminate this Agreement by written notice to the other Party ( the "Defaulting Party") if:-
1. the Defaulting Party breaches any provision of this Agreement that is not capable of remedy;
2. the Defaulting Party breaches any provision of this Agreement that is capable of remedy and fails to remedy such breach within 14 days written notice;
3. the Defaulting Party is Insolvent.
3. On the termination or expiry of this Agreement:
1. LexpressCars will immediately cease to provide the Advertising Services;
2. the Advertiser must pay all outstanding Fees to LexpressCars;
3. LexpressCars will return all Advertising Material to the Advertiser; and
4. clauses 11, 13 and 14 will survive.
4. Termination of this Agreement will not prejudice any accrued rights or liabilities of a Party.
1. The Advertiser agrees to fully indemnify and hold LexpressCars harmless against any expenses, costs, loss (including consequential loss) or damage that LexpressCars may suffer or incur as a result of or in connection with:
1. a breach of this Agreement by the Advertiser;
2. any willful, unlawful or negligent act or omission by the Advertiser;
3. the use of LexpressCars Website by the Advertiser; and
4. the publication by LexpressCars or any other person of the Advertisers Ad.
15. OWNERSHIP AND LICENCE
1. LexpressCars acknowledges that the Advertising Materials are owned by or licensed to the Advertiser.
2. The Advertiser grants LexpressCars a non exclusive, royalty free , worldwide licence to use, copy, perform, reproduce, display, transmit and distribute the Advertising Material for the purposes of performing its obligations pursuant to this Agreement.
3. The Advertisers must not release to the public any news release, advertising material, promotional material or any other form of publicity relating to LexpressCars without LexpressCars’ prior written approval.
1. LexpressCars may, in its absolute discretion, modify or amend these Terms and Conditions without notice to the Advertiser and such modification or amendment will be binding on the Advertiser at the expiration of the notice. The Advertiser must thereafter comply with the amended Terms and Conditions or terminate this Agreement as set out herein.
17. OTHER LEGAL MATTERS
1. Usage Statics
1. Unless otherwise agreed in writing, LexpressCars’ statistics shall be conclusive for the purpose of calculating impressions, usage statistics and like metrics, in respect of the Advertising Services.
2. Entire Agreement
1. These Terms and Conditions and the Insertion Order set out the entire agreement between LexpressCars and the Advertiser in respect of the Advertising Services and supersedes all prior arrangements, undertakings, representation and warranties in respect of the Advertising Services including any terms and conditions submitted by the Advertiser and not set out in this Agreement.
3. Further Acts
1. Each Party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by the other Party to do so.
1. The Advertiser will not assign, transfer or otherwise dispose of, in whole or in part, his/her/its rights or obligations under this Agreement without the prior written consent of LexpressCars.
1. LexpressCars may subcontract the performance of this Agreement or any part thereof.
6. Provisions Severable
1. If any provision of this Agreement is invalid, illegal or unenforceable in any respect the validity, legality and enforceability of the remaining provisions will not be affected and such invalid, illegal or unenforceable provision is to be severed from the relevant agreement.
1. Failure by any Party to exercise or delay in exercising any right, power or remedy under this Agreement does not prevent its exercise.
8. Governing Law
1. This Agreement is governed by and construed in accordance with the laws of the Mauritius and the Parties irrevocably submit to the exclusive jurisdiction of the Mauritian courts.
Please read this agreement carefully before accessing or using the information and services available through LexpressCars website ("Site"). By accessing or using the Site, you agree to be bound by the terms and conditions below. LexpressCars may modify this agreement at any time, and such modifications shall be effective immediately upon posting the modified agreement on the Site. Advertiser Terms and Conditions must be accepted and adhered to by Advertisers who use LexpressCars services and the Site.
Copyright in the material and trademarks on this Site are owned by Mediatiz Ltd ("LexpressCars") unless otherwise indicated and you agree not to infringe any intellectual property rights owned by LexpressCars.
You agree that information contained on this Site is for personal use only and may not be sold, redistributed or used for any commercial purpose (this includes but is not limited to the use of Advertiser contact details for unsolicited commercial correspondence). You may download material from this Site for your personal, non-commercial use only, provided you keep intact all copyright and other proprietary notices.
You may not use data mining, robots, screen scraping, or similar data gathering and extraction tools on this Site for establishing, maintaining, advancing or reproducing information contained on our Site on your own website or in any other publication, except with our prior written consent.
You acknowledge and agree that information published by LexpressCars is intended to provide general information in summary form on legal and other issues.
LexpressCars does not endorse or recommend any of the vehicles, dealers, importers, buyers, agents or products advertised on its Site and LexpressCars strongly recommends that prior to entering into any agreement with any of the Advertisers on the Site, that you obtain your own independent legal, accounting, financial, customers, mechanical, roadworthiness or taxation advice as appropriate. It is solely your responsibility to evaluate the accuracy, completeness and usefulness of all opinions, advice, services, merchandise, vehicles, products and other information provided through the Site or on the Internet generally.
In no event will LexpressCars be liable to you or anyone else for any decision made or action taken by you or anyone else in reliance upon any information contained on or omitted from the Site.
LexpressCars gives no guarantee to you of the continued availability of any particular vehicle or product advertised on the Site and will not be liable to you should an advertiser have sold the vehicle at any time prior to removal of the advertisement from the Site.
Whilst LexpressCars takes efforts to ensure that vehicles advertised are genuine and that the data presented about the vehicle is accurate, it gives no guarantee to you that every vehicle or description is free from errors or inaccuracies.
LexpressCars may provides links and pointers to Internet sites maintained by third parties from its Site. Such linked sites are not under the control of LexpressCars and LexpressCars is not responsible for the contents (including the accuracy, legality or decency) of any linked site or any link contained in a linked site. LexpressCars is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by LexpressCars of the linked site. LexpressCars is not responsible for the copyright compliance of any linked site. LexpressCars will not be liable for any damages or loss arising in any way out of or in connection with or incidental to any information or third party service provided by any third party.
LexpressCars provides no warranty to you that the services generally available through its Site will be uninterrupted or error-free or that defects in the service will be corrected. You also understand that LexpressCars cannot and does not guarantee or warrant to you that files available for downloading through the Site or delivered via electronic mail through the Site will be free of infection or viruses, worms, Trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.
LexpressCars welcomes ideas and feedback from you about all aspects of the Site. You agree that LexpressCars may reproduce, distribute, transmit, create derivative works of, and publicly display any materials and other information (including ideas for new or improved products and services) that you submit to any public areas of the Site (such as bulletin boards, forums and newsgroups) or by email or any other form of communication to LexpressCars. (Please read our privacy for more information as to how we deal with information you send to us.)
While LexpressCars takes all due care in ensuring the privacy and integrity of the information you provide, the possibility exists that this information could be unlawfully observed by a third party while in transit over the Internet or while stored on Cheki systems or on LexpressCars’ Site. LexpressCars disclaims all liability to you to the greatest extent possible pursuant to law should this occur.
To become a registered user, you must provide a password and a login name. You are entirely responsible if you do not maintain the confidentiality of your password and login name. Furthermore, you are entirely responsible for any and all activities that occur under your login name. You may change your password at any time by following instructions. You may also change your login by contacting customer service.
You agree to immediately notify LexpressCars of any unauthorized use of your login name or any other breach of security known to you.
You agree that it is a condition on your use of LexpressCars Website, LexpressCars Pricing Data or Pricing Service and of any other services provided by LexpressCars or through the Site that you will not either through any act or omission mislead or deceive others.
If any part of this agreement is held invalid that part shall be severed from this agreement and the remainder of this agreement will continue to be valid and enforceable.
Termination of this agreement will not end those provisions that are capable of surviving the ending of this agreement.
The laws governing this agreement will be the laws in Zimbabwe and you irrevocably submit to the exclusive jurisdiction of its Courts.
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