PARTIES

1. MSA DevCo (Pty) Ltd incorporated in South Africa with Registration number 2010/024388/07 whose registered office is at 85 Grayston Drive, Sandown, Sandton, 2196, Gauteng (“McDonald’s SA”).
2. The person identified in Annexure A (“Ambassador”).

BACKGROUND

1. McDonald’s SA is a leading foodservice retailer that believes that it is our responsibility to use our influence as a responsible business to have a positive impact on communities.
2. The Ambassador is a recognised social media personality with a substantial number of followers whose personal style and public persona, values and profile are aligned to and sympathetic with McDonald’s SA’s brand and ethos.
3. The parties have agreed that McDonald’s SA will engage the Ambassador to promote the McDonald’s South Africa brand and products.

AGREED TERMS

1. Engagement to provide Services
   1. The Ambassador agrees to provide certain services to McDonald’s SA, details of which are set out in  Schedule 1 (“Services”).
   2. The Ambassador acknowledges that McDonald’s SA will be entitled in its discretion to engage the services of other personalities to endorse, promote or advertise the McDonald’s South Africa brand and/or products. 
   3. The Ambassador acknowledges that McDonald’s SA has explained clearly and fully to the Ambassador the nature, function and brand image of the McDonald’s South Africa brand and/or products.
2. Commencement and duration
   • This agreement will commence on the commencement date set out in Annexure A and will continue, unless terminated earlier in accordance with clause 11, until the termination date set out Annexure A when it will terminate automatically without notice, unless the parties have by that date agreed to an extension in writing.
3. Ambassador’s other commitments
   1. McDonald’s SA will be entitled to the Services on an exclusive basis for the duration of this agreement.
4. Ambassador’s obligation
   The Ambassador agrees to:
   1. render the Services (the nature and content of which they acknowledge has been fully explained to them) in connection with the McDonald’s South Africa brand and/or products;
   2. perform the Services and act as an ambassador for McDonald’s SA and the McDonald’s South Africa brand and/or products conscientiously and in a competent manner and to the limit of their skill and ability and promptly comply with all McDonald’s SA’s reasonable instructions in connection with this agreement;
   3. not make any claims as to the properties or qualities of the McDonald’s South Africa brand and/or products other than those authorised in the Social Media Guidelines;
   4. promptly pass on to McDonald’s SA any complaints the Ambassador receives about the McDonald’s South Africa brand and/or products or any questions or comments the Ambassador receives in relation to the McDonald’s South Africa brand and/or products which require a response not covered in the Social Media Guidelines;
   5. not make any pejorative statement relating to McDonald’s SA, any of McDonald’s SA’s other brand ambassadors or staff, or the McDonald’s South Africa brand and/or products in public, online (including on social media), to the press or elsewhere;
   6. perform the Services solely in accordance with McDonald’s SA’s Social Media Guidelines as set out in Schedule 2, the ARB advertising code, and all other applicable guidance and regulations, as updated from time to time;
   7. remove any and all posts at the request of McDonald’s SA as soon as practicably possible;
   8. ensure that their biography on all their social media accounts accurately reflects their association with McDonald’s SA;
   9. keep McDonald’s SA informed throughout the term of this agreement of their whereabouts, address, email address, telephone number and mobile telephone number at all times;
   10. inform McDonald’s SA immediately of any criminal prosecution or other complaint brought against them after the date of this agreement and of any actual or likely press speculation or inquiry into them, their personal or business affairs, or publication in relation to such matters;
   11. inform McDonald’s SA as promptly as reasonably practicable of any material developments or changes in the circumstances or activities of the Ambassador which could reasonably be expected to adversely affect McDonald’s SA’s use of the Contribution;
   12. not do anything or participate in any political debate, recreational activities, sports or drug use (other than for medical purposes) or other activity which in McDonald’s SA’s reasonable opinion would jeopardise the ability of the Ambassador to perform the Services or prejudice the goodwill or reputation of McDonald’s SA or the McDonald’s South Africa brand and/or products;
   13. provide McDonald’s SA with anonymised information and reports from the platforms on which the Ambassador has posted material under this agreement as reasonably requested by McDonald’s SA; and
   14. not during the term of this agreement or at any time for a period of 6 (six)  months after the term provide their personal services in endorsing, promoting or acting as an ambassador for any product or category of product or for any company that is similar to or in direct competition with McDonald’s SA.
5. Ambassador’s warranties and indemnity
   1. 5.1 The Ambassador warrants, represents and undertakes to McDonald’s SA that:
      1. they have the legal capacity and are free contractually to enter into and to perform this agreement and have not entered and will not enter into any professional, legal or other commitment which would or might conflict with or prevent their doing so;
      2. they are 18 years of age or older and they agree to provide McDonald’s SA with identification to confirm their age if required to do so by McDonald’s SA;
      3. they do not have any criminal convictions as at the date of this agreement;
      4. the Contribution will be wholly original to them (save to the extent that it incorporates material provided by McDonald’s SA) and will not infringe the copyright or any other rights of any third party;
      5. the Contribution will not contain any defamatory matter nor breach any contract or law nor breach any duty of confidentiality, infringe any copyright or data protection rights, nor constitute contempt of court or obscenity;
      6. the rights they have granted to McDonald’s SA are vested in the Ambassador absolutely and they have not previously assigned, licensed or in any way encumbered them (save under the terms of use of the social media platform where the copyright works are posted) and they agree not to do so in the future; and
      7. they have disclosed in writing to McDonald’s SA all material facts that are relevant to their engagement as McDonald’s SA’s brand ambassador, including the nature and duration of past and existing endorsement agreements between the Ambassador and third parties and endorsement agreements that are likely to be concluded during the term of this agreement.
   2. The Ambassador will indemnify McDonald’s SA against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other reasonable professional costs and expenses) suffered or incurred by McDonald’s SA arising out of or in connection with any third party claims or any action, adjudication or decision taken against McDonald’s SA by any regulatory body, in each case directly or indirectly arising (in whole or in part) out of any breach of clause 5.1.
6. Company’s obligations
   6.1 McDonald’s SA warrants, represents and undertakes to the Ambassador that:
   1. it has, and will maintain throughout the term of this agreement, product and public liability insurance against losses arising from any claims, actions or damages which may arise as a direct or indirect result of any use of the McDonald’s South Africa brand and/or products;
   2. it will comply with the obligations applicable to advertisers and brands in the ARB advertising code;
   3. the McDonald’s South Africa Products are, to the best of its knowledge, safe and fit for its intended use; and
   4. the Ambassador’s use, in accordance with this agreement, of any materials provided to the Ambassador by McDonald’s SA for incorporation into the Contribution will not infringe the copyright or any other rights of any third party.
7. Intellectual property rights
   1. The Ambassador assigns to McDonald’s SA absolutely with full title guarantee all its right, title and interest in and to the copyright and all other rights throughout the world in all media whether now known or hereafter developed for the full period of copyright and all renewals, revivals, reversions and extensions thereof (and thereafter, insofar as the Ambassador is able, in perpetuity) including by way of present assignment of future copyright and all other rights in all products of the Services including, without limitation, all performances and literary, artistic and musical material created by the Ambassador in the course of providing the Services (together the “Contribution”).
   2. The Ambassador irrevocably grants to McDonald’s SA their consent to make full use of the Contribution, and any extracts from the Contribution, in all media worldwide.
   3. The Ambassador irrevocably grants to McDonald’s SA a non-exclusive licence worldwide for the term of this agreement to use, and to authorise others to use, their name and the biography, images, slogans, logos and signature provided to McDonald’s SA by the Ambassador (together the “Ambassador Image”) for the purposes of announcing and publicising, in all media, the Ambassador’s association with, and provision of the Services to, McDonald’s SA and in connection with any use of the Contribution, provided that no such use will suggest that the Ambassador endorses any commercial products or services other than the McDonald’s South Africa products and the McDonald’s SA brand.  In addition, the Ambassador grants McDonald’s SA a non-exclusive worldwide licence in perpetuity to use the Ambassador Image in connection with the Contribution for investor communications, archiving purposes, training and other internal and non-primary advertising purposes. McDonald’s SA agrees that all intellectual property rights in the Ambassador Image will remain the exclusive property of the Ambassador.
   4. The Ambassador recognises that McDonald’s SA has the unlimited right to edit, copy, alter, add to, take from, adapt and translate the Contribution and dub it into one or more foreign languages and the Ambassador irrevocably and unconditionally waives the benefit of their moral rights in the Contribution.
   5. McDonald’s SA will have the right to continue to use the Contribution and the Ambassador Image after the term of this agreement for the purposes of fulfilling contracts entered into during that term and promoting units of the McDonald’s South Africa brand and/or products incorporating the Ambassador Image for a period of 12 (twelve) months.
   6. The Ambassador agrees to sign such documents as McDonald’s SA may reasonably require to grant to McDonald’s SA the copyright and all other rights assigned or granted by the Ambassador to McDonald’s SA under this agreement.
8. Publicity
   The Ambassador agrees to refer all enquiries from the media and other third parties received by them concerning McDonald’s SA or this agreement to McDonald’s SA.
9. Provision of products to Ambassador
   1. In consideration of the Ambassador rendering the Services, McDonald’s SA will pay the Ambassador in accordance with Annexure A (“Fee”).
   2. The Ambassador hereby acknowledges and agrees that the Fee represents the full and final consideration for the Contribution, Services and any other services rendered under this agreement.
   3. The Ambassador hereby confirms that they are self-employed and solely liable for all tax due in respect of the Fee they receive under this agreement and will indemnify McDonald’s SA and keep McDonald’s SA indemnified against any proceeding in respect of any non-payment by them in respect of any such tax.
10. Limitation of liability and indemnity
    1. References to liability in this clause 10 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, delict (including negligence), misrepresentation, restitution or otherwise.
    2. Nothing in this agreement limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.
    3. Subject to clause 10.2 McDonald’s SA’s total liability to the Ambassador will not exceed the total amount of the Fee actually paid by McDonald’s SA to the Ambassador under this Agreement. 
    4. Neither party will have any liability to the other for indirect or consequential loss.
    5. McDonald’s SA will have no liability for loss of publicity or loss of opportunity to enhance the Ambassador’s reputation.
11. Termination
    1. McDonald’s SA will be entitled to terminate this agreement on 7 (seven) days written notice at McDonald’s SA’s absolute discretion.
    2. McDonald’s SA will be entitled to terminate this agreement on written notice with immediate effect, if the Ambassador:
       1. is in breach of any obligation contained in this agreement and where such breach is capable of remedy has failed to remedy that breach within 24 (twenty four) hours of being notified of it;
       2. is incapacitated or prevented from rendering the Services for more than 14 (fourteen) consecutive days; or
       3. has committed a crime or has become involved in any situation or activity which tends in the reasonable opinion of McDonald’s SA to expose McDonald’s SA to disrepute, contempt, scandal or ridicule, or would tend to shock, insult or offend the public, or reflects unfavourably on McDonald’s SA’s reputation or products or if any act or conduct of the Ambassador will prejudice the production or successful sales and exploitation of the McDonald’s South Africa brand and/or products. McDonald’s SA’s decision on all matters arising under this clause will be conclusive.
    3. On termination of this agreement:
       1. the Ambassador will cease to associate themselves with McDonald’s SA and remove references to McDonald’s SA and the McDonald’s South Africa brand and/or products from their social media profiles and, to the extent so requested by McDonald’s SA, any past social media posts over which they have control;
       2. neither party will have any further obligation to the other under this agreement except as provided in this agreement;
       3. the parties will retain all rights, remedies and obligations that have accrued or become due prior to termination; and
       4. McDonald’s SA will remain entitled to all rights granted or assigned to it under this agreement.
12. Assignment and other dealings
    1. The Ambassador will not assign, transfer, subcontract or deal in any other manner with any of their rights and obligations under this agreement.
    2. McDonald’s SA may at any time assign, subcontract, delegate, or deal in any other manner with any or all of its rights and obligations under this agreement, provided that it gives prior written notice of such dealing to the Ambassador.
13. No partnership or agency
    1. Nothing in this agreement is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other party, or authorise either party to make or enter into any commitments for or on behalf of the other party.
    2. Each party that has rights under this agreement is acting on its own behalf and not for the benefit of any other person.
14. General
    1. Any notice or other communication given to a party under or in connection with this agreement will be in writing and will be delivered by hand or sent by email to the addresses set out in Annexure A.
    2. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    3. No variation of this agreement will be effective unless it is in writing and signed by the parties.  
    4. The Ambassador acknowledges that the Services are of a unique character and acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Ambassador. Accordingly, and without prejudice to any other rights or remedies that McDonald’s SA may have under this agreement, McDonald’s SA will be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of the terms of this agreement.
    5. Each party will, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data.
    6. The Ambassador will comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption and comply with such policies relating to ethics, anti-bribery and anti-corruption as McDonald’s SA may provide to the Ambassador and update from time to time.
    7. No failure or delay by a party to exercise any right or remedy will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy. 
    8. The Ambassador undertakes that they will not at any time during this agreement and indefinitely thereafter, disclose to any person any confidential information concerning the business affairs, customers, clients or suppliers of McDonald’s SA including in particular, new business or product ideas, lines and prototypes.  
    9. McDonald’s SA undertakes that it will not at any time disclose to any person any confidential information concerning the Ambassador, their business affairs, personal matters and relationships and those of their immediate family.
    10. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of South Africa.

ANNEXURE A