2. INTERPRETATION

2.1. In this Constitution, unless the context clearly indicates a contrary intention: any expression which denotes one gender shall include the other; a natural person shall include a juristic person and other created entities and vice versa; the singular shall include the plural and vice versa; the words and expressions contained below shall bear the meaning assigned to them and related words and expressions shall bear corresponding meanings:

2.1.1. "Act” means the Companies Act, No. 71 of 2008, as amended, consolidated or re-enacted from time to time, and includes all Schedules to such Act and the Regulations;

2.1.2. "Board” means the board of Directors from time to time of the IAB SA;

2.1.3. "Brand” means an established business with an established South African digital presence and brand which would, in the ordinary course of its business, be a customer or client of – but is not itself – a Media Agency or a Creative or Development Agency, and is not itself an Online Publisher;

2.1.4. "Creative or Development Agency” means an advertising or marketing agency which offers creative or digital development services and which has an established business presence in South Africa;

2.1.5. "IAB SA” formerly DMMA is the abbreviation for the non-profit Digital Media and Marketing Association company now known as IAB SA;

2.1.6. "Digital Marketing” refers to the promoting of companies and brands using one or more forms of digital channels, Digital Media and /or digital data processing devices (the latter of which includes without limitation, computers, tablets and mobile phones);

2.1.7. "Digital Media” refers to any and all forms of electronic media on which data is sorted, processed and published in digital (as opposed to analogue) form;

2.1.8.  "Director” means a member of the Board of the IAB SA, or an alternative director, and includes any person occupying the position of a director or alternate director, by whatever name designated;

2.1.9. "Educator” means a provider of education products and services related to Digital Marketing and/or Digital Media in the South African market, and with an established presence in South Africa;

2.1.10. "Electronic Communication” has the meaning set out in section 1 of the Electronic Communications and Transactions Act;

2.1.11. "Electronic Communications and Transactions Act” means the Electronic Communications and Transactions Act, no. 25 of 2002 as amended, consolidated or re-enacted from time to time;

2.1.12. "Media Agency” shall mean an agency which –

2.1.12.1. operates in the business of either media strategy, planning or buying in South Africa; and

2.1.12.2. makes use of and promotes the use of the IAB SA endorsed statistics measurement tool for digital media in South Africa,

2.1.13. "Member” means an Online Publisher, Creative or Development Agency, Educator or Media Agency who has been admitted to membership of the Company in accordance with the provisions of this MOI and the Constitution;

2.1.14. "MOI” means the Memorandum of Incorporation of the IAB SA;

2.1.15. "Online Publisher” shall mean a natural or juristic person whose primary business includes the commercial distribution of original or aggregated editorial content via digital, interactive media and which must:

2.1.15.1. be largely South African owned and controlled; or

2.1.15.2. have a substantial, dedicated section or version customised for the South African market (e.g. http://za.yoursite.com) where all pages are tagged; or

2.1.15.3. have an advertising sales force or sales representation in South Africa; and

2.1.15.4. submit monthly advertising revenue statements (if applicable) to the advertising spend measurement body as mandated by the IAB SA from time to time, which statements shall detail the value of advertising placed on the Online Publisher’s online channel, calculated at rate card value and broken down by specific advertiser and/or advertising network; and

2.1.15.5. agree to be bound by the IAB SA Code of Conduct; and

2.1.15.6. embed tags provided by the measurement provider mandated by the IAB SA from time to time and agree that measurement data generated by such tags may be published and distributed by the IAB SA;

2.1.16.  "Representative” means a senior executive employee of a Member nominated by such Member from its ranks for the purpose of representing the Member in its transactions with the IAB SA.

2.2. Where any number of days is prescribed in this Constitution, same shall be reckoned exclusively of the first and inclusively of the last day unless the last days falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.

2.3. In this Constitution, unless the context clearly indicates otherwise, in any instance where there is a conflict between a provision (be it expressed, implied or tacit) of this Constitution and a provision of the MOI, the provision of the MOI shall prevail to the extent of the conflict.

2.4. It is recorded that any dispute as to whether a person falls into the definitions set out in 2.1.3, 2.1.4, 2.1.9, 2.1.12 or 2.1.15 shall be determined by the Board, acting as an expert and not an arbitrator.

2.5. Whenever any person is required to act "as an expert and not as an arbitrator” in terms of this Constitution, then –

2.5.1. the determination of the expert shall (in the absence of manifest error) be final and binding;

2.5.2. subject to any express provision to the contrary, the expert shall determine the liability for his or its charges, which shall be paid accordingly;

2.5.3. the expert shall be entitled to determine such methods and processes as he or it may, in his or its sole discretion, deem appropriate in the circumstances provided that the expert may not adopt any process which is manifestly biased, unfair or unreasonable; and

2.5.4. the expert shall consult with the relevant parties (provided that the extent of the expert’s consultation shall be in his or its sole discretion) prior to rendering a determination, having regard to the sensitivity of any confidential information, the expert shall be entitled to take advice from any person considered by him or it to have expert knowledge with reference to the matter in question.

4. MISSION

The IAB SA’s mission is to provide a non-profit forum:

4.1. in which Brands, Online Publishers, Creative or Development Agencies, Media Agencies and Educators can address issues of common interest;

4.2. which can facilitate engagement, interaction, learning and commerce between Members, focused on growing the South Africa digital industry;

4.3. which can represent the South African digital industry before the marketing community, the press, government and the public; and

4.4. through which international digital players can enter the South African digital marketplace.

5. OBJECTIVES

The main objects of the IAB SA are to represent and address issues of common interest of Members and in order for the IAB SA to successfully pursue its mission and purpose, the IAB SA  will have to:

5.1. stay up-to-date on global Digital Media and Digital Marketing trends so as to develop an understanding of how the South African digital industry will change as it matures;

5.2. formulate, implement and continually evolve to educate the South African marketing and advertising community about the benefits of Digital Marketing and advertising;

5.3. enable the South African digital industry with a single, credible audience and revenue measurement and tracking product to act as a planning tool for advertising and media agencies and as an information source for the marketing community;

5.4. endorse the highest standards in digital publishing, development, creative and media planning with respect to quality and integrity, credibility and accountability;

5.5. where relevant, develop and promote standard across all aspects of the South African Digital Media and Digital Marketing industry; and

5.6. engage positively with all related bodies in order to further the interests of a sustainable Digital Media and Digital Marketing industry in South Africa.

7. IAB SA  MEMBERSHIP

7.1. General

7.1.1. Any person who wishes to become a Member of the IAB SA  ("Applicant”) shall complete the current prescribed IAB SA  membership application form or will make application by such other means as may be determined by the Board from time to time.

7.1.2. Further to clause 7.1.1, an Applicant will be eligible for membership, or will be entitled to be admitted as a Member, only if:

7.1.2.1. they make timely and proper payment of their annual membership fee;

7.1.2.2. they meet, and continue to meet for the duration of their membership, the criteria as set out in clause 7.2 of this Constitution; and

7.1.2.3. the relevant membership application has been vetted and approved by a majority of the Board. The Board shall be empowered, in its sole discretion, to decline or accept any application for membership or to refer such application back to the Applicant for further clarification or details,

following which the Applicant shall remain a Member until resignation or termination of membership in accordance with this Constitution.

7.1.3. The IAB SA A shall have a minimum of 50 (fifty) Members at all times, and the maximum number of Members shall be unlimited. If at any time the number of Members should fall below the stipulated minimum, it shall be incumbent upon the Board to take such steps as may be necessary to fill the relevant number of members within a period of 60 (sixty) days of the need therefore arising, failing which the Board shall take such steps for the winding up of the IAB SA  as contemplated in clause 8.3 of the MOI to which this Constitution is attached.

7.2. Qualification for Membership

7.2.1. Any Applicant who is either, a Brand, an Online Publisher, a Creative or Development Agency, an Educator, or a Media Agency may apply for Membership status.

7.2.2. An Applicant will be considered for membership where the Applicant undertakes, in writing, to –

7.2.2.1. be in continuing compliance with the provisions of this Constitution, as amended from time to time and to continuously promote the IAB SA ’s purpose, mission and objectives as set out in the Constitution;

7.2.2.2. be in continuing compliance with the IAB SA ’s Code of Conduct, as amended from time to time;

7.2.2.3. demonstrate an ongoing commitment to best practices in Digital Media and Digital Marketing industry in South Africa;

7.2.2.4. appoint a senior executive and an alternate from its ranks for the purpose of acting as its representative;

7.2.2.5. employ only lawful and ethical marketing techniques and practices which do not have the effect of misleading or confusing consumers and to comply with the rulings of the Advertising Standards of South Africa (ASASA) and similar bodies; and

7.2.2.6. adopt and comply with the audience measurement and tracking standards and product adopted by the IAB SA  from time to time, and shall not publish or publicly endorse measurement statistics for its own or other IAB SA  members publications that are in conflict with or contrary to the IAB SA -adopted measurement and tracking standards.

7.3. Finances

7.3.1. Membership fees

7.3.1.1. Members will be required to pay an annual membership fee, payable annually in advance.

7.3.1.2. The Board may, by way of resolution passed by not less than 75% of Directors present and entitled to vote at a Directors’ meeting, determine and institute different categories of membership and prescribed different membership fees in relation to such different categories.

7.3.1.3. Notwithstanding anything to the contrary herein contained, no Member (or its Representative) whose membership fees have not been paid on the due date for payment will be entitled to vote at any meeting of the IAB SA  for as long as such membership fees remain outstanding.

7.4. Transfer of membership

A Member’s membership of the IAB SA  is not transferable in any manner or form.

7.5. Members’ meetings

7.5.1. Members’ meetings

Save as otherwise provided herein, the IAB SA  is not required to hold any other Members’ meetings other than those that may be specifically required by the Act.

7.5.2. Convening of Members’ meetings

7.5.2.1. The Board or any Prescribed Officer of the IAB SA  authorised by the Board, is entitled to call a Members’ meeting at any time.

7.5.2.2. In addition to other meetings of the IAB SA  that may be convened from time to time, the IAB SA  shall convene an annual meeting of Members once in each calendar year, but not more than 18 (eighteen) months after the date of the previous annual meeting of Members.

7.6. Members’ right to requisition a meeting

The Board must call a Members’ meeting if one or more written and signed demand/s for such a meeting are delivered to the IAB SA and each such demand describes the specific purpose for which the meeting is proposed and if in aggregate, demands for substantially the same purpose are made and signed by Members representing at least 15% (fifteen percent) by number of the total Members and such meeting/s must be convened in accordance with the provisions of clause 7.

7.7. Representatives

7.7.1. Each Member shall appoint a specific person, in writing, as its Representative and such Representative and his alternate shall attend all Members’ meetings on behalf of the Member and shall be entitled to act on behalf of the Member in all matters pertaining to the IAB SA .

7.7.2. Only one Representative or alternate for such Representative per Member shall be entitled to attend Members’ meetings.

7.8. Location of Members’ meetings

The location of any Members’ meetings shall be determined by the Board and Members’ meetings may be held anywhere in South Africa.

7.9. Notice of Members’ meetings

7.9.1. A notice of a Members’ meeting must be in writing and must include –

7.9.1.1. the date, time and place for the meeting;

7.9.1.2. the general purpose of the meeting, and any specific purpose if the meeting has been called or demanded for a specific purpose;

7.9.1.3. a copy of any proposed resolution for consideration and determination by the Directors; and

7.9.1.4. in case of an annual general meeting, the financial statements to be presented.

7.9.2. Any such notice shall be delivered to all Members at least 10 (ten) business days before the meeting is to begin.

7.10. Chairperson

7.10.1. The chairperson, if any, of the Board shall preside as chairperson at every Member’s meeting.

7.10.2. If there is no chairperson, or if at any meeting he or she is not present within 15 (fifteen) minutes after the time appointed for holding the meeting or is unwilling to act as chairperson, the Directors present shall choose 1 (one) of their number to be chairperson. If no Director is willing to act as chairperson or if no director is present within 15 (fifteen) minutes after the time appointed for holding the meeting, the Members present shall choose one of their number to be chairperson of the meeting.

7.11. Votes

7.11.1. Where the Directors have convened meeting of Members in accordance with clause 7.5.2, or where Members have requisitioned a meeting in accordance with clause 7.6, each Member present or represented by proxy shall have one vote.

7.11.2. Even if he is not a member –

7.11.2.1. any Director; or

7.11.2.2. the Company’s attorney (or where the Company’s attorneys are a firm, any partner or Director thereof), may attend and speak at any Members’ meeting, even though he may not vote.

7.12. Quorum and postponement of meetings

7.12.1. The quorum for a Members’ meeting to begin or for a matter to be considered, shall be 10% (ten percent) by number of the total Members or their proxy.

7.12.2. If within 15 (fifteen) minutes after the appointed time for a meeting to begin, the requirements of clause 7.12.1 for that meeting to
begin have not been satisfied, the meeting may be postponed, without any motion or notice, for (one) week (to the same day, time and place provided same is not a Public Holiday) or such longer period as may be determined by the person intended to preside over such meeting, provided that the person intended to chair a meeting that cannot begin may extend the 15 (fifteen) minutes limit allowed for a reasonable period on the grounds that –

7.12.2.1. exceptional circumstances affecting the weather transportation or Electronic Communication have generally impeded or are generally impeding the ability of Members to be present at the meeting; or

7.12.2.2. one or more particular Members, having been delayed have communicated an intention to attend the meeting, and those Members, together with others in attendance, would satisfy the requirements of 7.12.1.

7.12.3. The Company shall not be required to give further notice of a meeting that has been postponed or adjourned in terms of this clause unless the location for the meeting is different from –

7.12.3.1. the location of the postponed or adjourned meeting; or

7.12.3.2. the location announced at the time of adjournment, in case of an adjourned meeting.

7.12.3.3. If at any time appointed in terms of clause 7.12.2 for a postponed meeting to begin, or for an adjourned meeting to resume, the requirements of clause 7.12.1 have not been satisfied, the Members present in person or by proxy will be deemed to constitute a quorum.

7.12.3.4. After a quorum has been established for a meeting, or for a matter to be considered at a meeting, all the Members forming part of the quorum must be present at the meeting for the matter to be considered at the meeting.

7.12.3.5. The maximum period allowable for an adjournment of a Members’ meeting shall be 60 (sixty) Business Days after the date on which the adjournment occurred.

7.13. Members’ meeting by electronic communication

This MOI does not prohibit the Company from providing for any Members’ meeting to be conducted by Electronic Communication, or for one or more Members, or proxies for Members, to participate in any Members’ meeting by Electronic Communication, subject to the provisions of the Act.

7.14. Other

7.14.1. Members will be responsible for all their own expenses in connection with their membership, including but not limited to travel cost associated with the attendance of any Members’ meetings. Exceptions to this rule require prior written Board authorisation.

7.14.2. The Board may accept unconditional offers from Members or any other organisations to pay for special projects undertaken by the IAB SA .

7.14.3. The Board will be entitled to change special levies to Members from time to time to fund special projects of the IAB SA  which are necessary for or ancillary to the IAB SA ’s mission, provided that such levies has been approved by the Board.

7.14.4. Membership fees as set by the IAB SA  shall not cover any cost associated with the adoption and implementation by Member of an audience measurement and tracking product which has been adopted by the IAB SA .

7.15. Suspension and termination of membership status

7.15.1. The Board may, in its sole discretion, suspend and/or terminate the membership of any Member who fails to make full payment within 90 (ninety) days of the due date for payment of membership fees.

7.15.2. A Member’s membership may be suspended and/or terminated –

7.15.2.1. by a majority vote of the Members;

7.15.2.2. by written notice of resignation delivered by the Member to the Board; or

7.15.2.3. at the discretion of the Board where the Member has –

7.15.2.3.1.  failed to pay membership fees despite demand thereof;

7.15.2.3.2.  failed to adopt and implement the audience measurement and tracking product adopt by the IAB SA  from time to time;

7.15.2.3.3.  failed to comply with the provisions of the Constitution or the Code of Conduct; or

7.15.2.3.4.  is otherwise in breach of the undertakings which the Member gave the IAB SA  upon making its membership application.

7.15.3. Any Member whose membership of the IAB SA  has been terminated for whatsoever reason shall forfeit all membership fees and other amounts paid by it to the IAB SA .

8. STRUCTURE AND ROLE OF THE BOARD

8.1. The Board shall be elected by Members at the annual general meeting and will comprise of a minimum number of 3 (three) and a maximum number of 10 (ten) Directors comprising, inter alia, at least the following:-

8.1.1. a chairperson and a vice chairperson, being each either –

8.1.1.1. a Representative of a Media Agency, or a Creative or Development Agency; or

8.1.1.2. a Representative of an Online Publisher;

provided that, if the chairperson is a Representative of a Media Agency or a Creative or Development Agency, the vice chairperson shall be a representative of an Online Publisher, and vice versa;

8.1.2. another Representative of an Online Publisher;

8.1.3. another Representative of a Media Agency or a Representative of a Creative or Development Agency; and

8.1.4. a treasurer.

8.2. The Board will perform oversight, fiduciary and fiscal duties and will set the overall strategy for the IAB SA .

9. DUTIES OF THE BOARD

9.1. The primary duty of the Board is to further the IAB SA’s mission, as specified in the Constitution.

9.2. The Board shall report to the Members, from time to time in its discretion, on its activities and the affairs of the IAB SA.

9.3. The Chairperson shall preside at all meetings at which he/she is present and shall enforce observance of the Constitution, sign minutes of meetings after confirmation, exercise supervision over the affairs of the IAB SA and perform such duties as customarily pertain to the office of Chairperson.

9.4. The Vice Chairperson shall, in addition to such duties as may be mandated by the Board, perform the functions of the Chairperson in the event of the absence or inability to act of the latter.

9.5. The Board may, in its discretion, appoint persons to act as the secretariat, bookkeeper and auditor of the IAB SA and to perform such functions and duties as the Board may from time to time determine. These persons will not be required to be Members, and if they are not Members, may be remunerated for their services as the Board may determine.

11. BOARD COMMITTEES

11.1. Committees may be formed and dissolved by the Board in its sole discretion from time to time to deal with specific issues in accordance with a statement of objectives, as determined by the Board.

11.2. The Board may appoint committees of Directors and delegate to any such committee any of the authority of the Board.

11.3. In appointing committees, the Board shall endeavour to ensure that the following portfolios are covered, although the following list should serve more as a guideline than as an exhaustive mandatory list –

11.3.1. Online Publishing;

11.3.2. Agency & Affiliate;

11.3.3. Educational;

11.3.4. Brand;

11.3.5. Measurement;

11.3.6. Research;

11.3.7. Regulatory; and

11.3.8. Liaison.

11.4. The overriding duty of committee members is to act in the best interests of the IAB SA, and not in any sectional, commercial or personal interest. A committee member is required to disclose interests which might give rise to a conflict of interest relating to his or her IAB SA duties. Disclosure is also required of any non-financial interest (such as kinship or a past, present or prospective business relationship) which might influence his or her judgment as a committee member.

11.5. Each committee shall be entitled, but not obliged, to co-opt individuals to sub-committees. Such co-opted members shall not be deemed to be members of the committee and shall be under the directions of – and may be replaced in the discretion of – the Director of the relevant committee.

11.6. The Board will also be entitled, but not obliged, from time to time to co-opt such additional members to the Board as the Board may deem appropriate, to assist the Board with specific projects. Such co-opted members shall not, for the purpose of this Constitution, be deemed to be members of the Board.

13. ACCESS TO IAB SA RECORDS

13.1. Each Member is entitled to inspect and copy, upon payment of the prescribed maximum charge for any such copy, the information contained in the records of the IAB SA referred to in section 26(1) of the Act, being –

13.1.1. the MOI, and any amendments or alterations thereof, and any Rules of the IAB SA;

13.1.2. a record of the Directors, including the details of any person who has served as a Director, for a period of 7 (seven) years after that person has ceased to serve as a Director, and any information relating to such persons referred to in section 24(5) of the Act;

13.1.3. all –

13.1.3.1. reports presented at an annual general meeting of the IAB SA for a period of 7 (seven) years after the date of any such meeting, provided that no such inspection right shall exist if and to the extent that the IAB SA is not required to, and does not, in fact, hold an annual general meeting; and

13.1.3.2. annual financial statements required by the Act for a period of 7 (seven) years after the date on which each such particular statements were issued;

13.1.4. notice and minutes of all Members’ meetings, including –

13.1.4.1. all resolutions adopted by them, for 7 (seven) years after the date each such resolution was adopted;  and

13.1.4.2. any document that was made available by the IAB SA to the Members in relation to each such resolution;

13.1.5. any written communications sent generally by the IAB SA to all Members, for a period of 7 (seven) years after the date on which each of such communications was issued; and

13.1.6. and generally; any information, whether in written or oral form, in relation to the IAB SA as may reasonably be requested.

13.2. A person not contemplated in clause 13.1 has a right to inspect the register of Directors of the Company upon payment of the prescribed maximum fee as determined in accordance with the Act for any such inspection.

14. INDEMNITY

14.1. Each Director of the Board is indemnified out of and from the funds of the IAB SA against all losses, charges, costs, damages and other liability which that Director of the Board may suffer or incur as a result of executing his duties as a Director of the Board, save to the extent that such Director acted negligently or fraudulently.

14.2. The IAB SA shall not be liable for any acts or omission of its Members in regard to the Code of Conduct.

14.3. No office bearer of the IAB SA shall be personally liable for any loss suffered by any person as a result of an act or omission which occurs in good faith while the office bearer is performing functions on behalf of the IAB SA.

14.4. No Director or Member shall be answerable or deemed to be in any way responsible for any act or default of any other Director and/or Member, save to the extent that such Director and/or Member acted negligently or fraudulently.

15. DISSOLUTION

15.1. The IAB SA shall be dissolved upon a resolution to that effect by 75% of the Members at a Member’s meeting, provided that the notice of the proposed resolution is given to Member’s not less than 14 (fourteen) days before the date of the meeting.

15.2. Upon the winding up or dissolution of the IAB SA –

15.2.1. no past or present Member or Director of the IAB SA, or person appointing a Director of the IAB SA, is entitled to any part of the net value of the IAB SA after its obligations and liabilities have been satisfied; and

15.2.2. the entire net value of the IAB SA must be distributed to one or more non profit companies, registered external non profit companies carrying on activities within South Africa, voluntary associations or non profit trusts having objects similar to the IAB SA’s main object as determined in terms of its MOI or by the Board.

16. NOTICES

16.1. Each Member of the IAB SA  –

16.1.1. shall notify in writing to the IAB SA an address, which address shall be his registered address for the purposes of receiving written notices from the IAB SA by post and if he has not named such an address he shall be deemed to have waived his right to be so served with notices; and

16.1.2. may notify in writing to the IAB SA an email address and/or facsimile number, which address shall be his address for the purposes of receiving notices by way of Electronic Communication.  Any Member who has furnished an Electronic Address to the Company, by doing so, authorises the IAB SA to use Electronic Communication to give notices, documents, records or statements or notices of availability of the aforegoing to him and confirms that same can conveniently be printed by the Member within a reasonable time and at a reasonable cost.

16.2. Save as determined in this Constitution, in the MOI or in the Act, no Member shall be entitled to receive any notice from the IAB SA.

16.3. Save to the extent that any of the following provisions may be in conflict with any provision contained in the Act or the Regulations, any notice sent by –

16.3.1. registered post to the last-known address of a Member shall be deemed to have been delivered on the 7th (seventh) day following the day on which the notice or document was posted as recorded by a post office, unless there is conclusive evidence that it was delivered on a different day;

16.3.2. faxing the notice to a Member, if the Member has a fax number, shall be deemed to have been delivered on the date and at the time recorded by the fax receiver, unless there is conclusive evidence that it was delivered on a different date or at a different time; and/or

16.3.3. sending the notice to a Member by electronic mail, if the Member has an address for the receiving of electronic mail, shall be deemed to have been delivered on the date and at the time recorded by the computer used by the sender, unless there is conclusive evidence that it was delivered on a different date or at a different time.

16.4. If a provision of the Act or the MOI requires a document to be signed or initialled by or on behalf of a person, that signing or initialling may be effected in any manner provided for in the Electronic Communications and Transactions Act No. 25 of 2002.