Terms & Conditions
GENERAL TERMS AND CONDITIONS
entered into between DEEP SOUTH VIBES AND THE CLIENT WHEREBY IT IS AGREED AS FOLLOWS:
PART A: INTERPRETATION AND DEFINITIONS; INTRODUCTION; ORDERS; SERVICE CHANGE ORDERS; COMPLETION; DELIVERY
- INTERPRETATION AND DEFINITIONS
The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention clearly appears –
1.1. words importing –
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa; and
1.1.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa;
1.2. the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely –
1.2.1. “Agreement” means this agreement between Deep South Vibes and the Client (together with the annexures hereto), as amended, supplemented, varied or novated from time to time, incorporating, amongst other things, all Quotes, Invoices, debit order authorizations and any terms and conditions applicable to any promotional offers of Banter Media, from time to time;
1.2.3. “Deep South Vibes” means Banter Digital (Proprietary) Limited, a private company incorporated according to the laws of the Republic of South Africa, under registration number 2017/441060/07; trading as Deep South Vibes
1.2.4. “Business Days” means any day other than a Saturday, Sunday or an official public holiday in South Africa;
1.2.5. “Client” means any person who engages Deep South Vibes to perform Services hereunder;
1.2.6. “Completion” means the date on which Banter Media completes the rendering of Services to the Client hereunder;
1.2.7. “Confidential Information” means –
18.104.22.168. information of a confidential nature, including but not limited to confidential data, plans, models, designs, reports, compilations, lists, systems, operations, techniques, methods, methodologies, processes, formulae, concepts and ideas of any (confidential) nature including of a technical, scientific, engineering, commercial, strategic, financial, marketing or organisational nature;
22.214.171.124. information relating to the knowledge, know-how, expertise, trade secrets or business activities of a Party;
126.96.36.199. information relating to a Party which is not freely available to a competitor of that Party; and
188.8.131.52. such other information as a Party may designate in writing as being confidential information at the time of disclosure to the other Party;
1.2.8. “CPA” means the Consumer Protection Act, 68 of 2008:
1.2.11. “Existing Deep South Vibes IP” means any intellectual property created and/or developed by Deep South Vibes prior to the entry into of this Agreement, alternatively licensed to Deep South Vibes, and used by Deep South Vibes in rendering the Services hereunder;
1.2.12. “Existing Client IP” means any intellectual property created and/or developed by the Client prior to the entry into of this Agreement, alternatively licensed to the Client, and used by Deep South Vibes in rendering the Services hereunder;
1.2.14. “Intellectual Property Rights” means all intellectual property rights of whatever nature, including without limitation (i) all patents and other patent rights, including divisional and continuation patents and utility models; (ii) rights in and to inventions, whether patentable or not; (ii) rights in trade marks and service marks, logos, slogans, corporate, business and trade names, trade dress, brand names and other indicia of origin; (iii) rights in designs, topography rights, rights in circuit layouts and mask-works; (iv) copyright, including all copyright in and to computer programs, moral and economic rights of authors and inventors; (v) rights in internet domain names, reservations for internet domain names, uniform resource locators and corresponding internet sites; (vi) rights in databases and data collections; (vii) know-how, show-how, trade secrets and confidential information, in each case whether or not registered and including applications for registration of any of these and the right to apply for the registration of any of these, all claims for past infringements, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world;
1.2.15. “Invoice” means a written document (i) confirming the Quote; and (ii) setting out, amongst other things, the information contemplated in clause 12.4;
1.2.16. “Non-severable Existing Deep South Vibes IP” means such of the Existing Deep South Vibes IP, without which, the Project IP is incapable of independent use;
1.2.17. “Order” means any verbal or written order (including any electronically submitted order), placed by the Client on Deep South Vibes for the performance of the Services;
1.2.18. “Parties” means Deep South Vibes and the Client collectively, and “Party” shall mean either one of them as the context may indicate;
1.2.19. “Pitch/Campaign Idea” means a presentation where more than one advertising agency or similar type of entity has received the same brief by the Client for the same pitch exercise;
1.2.20. “Project IP” means any intellectual property which is created and/or developed by Deep South Vibes or any third party appointed by Deep South Vibes in accordance with this Agreement, as a result of and pursuant to the rendering of the Services;
1.2.21. “Quote” means the written document setting out (i) a written estimate of the fees to be paid by the Client to Deep South Vibes in respect of the Services; (ii) the Services; and (iii) the Specifications;
1.2.22. “Services” means (i) those services set out in the Quote and Invoice as being the Services to be rendered by Deep South Vibes to the Client; and/or (ii) the preparation of any Pitch/Campaign Idea for a Client;
1.2.23. “Signature Date” means the date of signature of this Agreement by the Party signing last in time;
1.2.24. “Specifications” means the specifications in respect of the nature and scope of the Services to be performed by Deep South Vibes, as set out in the Quote and/or Invoice;
1.3. any reference to an enactment is to that enactment as at the Signature Date and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such enactment;
1.4. if any provision in a definition is a substantive provision conferring rights or imposing obligations on either Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement;
1.5. when any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday in South Africa, in which case the last day shall be the next succeeding Business Day;
1.6. expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions;
1.7. the use of any expression in this Agreement covering a process available under South African law such as a winding?up (without limitation eiusdem generis) shall, if any of the Parties to this Agreement is subject to the law of any other jurisdiction, be construed as including any equivalent or analogous proceedings under the law of such defined jurisdiction;
1.8. if any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause;
1.9. the expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this;
1.10. the rule of construction that a contract shall be interpreted against the Party responsible for the drafting or preparation of the contract, shall not apply;
1.11. any reference in this Agreement to a Party shall include a reference to that Party’s assigns expressly permitted under this Agreement and, if such Party is liquidated or sequestrated, be applicable also to and binding upon that Party’s liquidator or trustee, as the case may be;
1.12. the words “include“, “including” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s;
1.13. any reference in this Agreement to any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented; and
1.14. the words “other” and “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible.
2.1. The Client requires Deep South Vibes to perform the Services, on the terms and conditions contained in this Agreement.
2.2. Deep South Vibes is willing to perform the Services in exchange for consideration, on the terms and conditions contained in this Agreement.
2.3. The Client has engaged Deep South Vibes to perform the Services, and the Parties have agreed to reduce the terms of their agreement to writing.
3.1. The Client shall, from time to time, place an Order on Deep South Vibes to perform the Services in accordance with the Specifications.
3.2. Orders shall constitute irrevocable offers by the Client to engage Deep South Vibes to perform the Services at the usual prices of Deep South Vibes.
3.3. All Orders will be submitted to Deep South Vibes for processing and will be subject to acceptance by Deep South Vibes by way of the delivery of an Invoice to the Client. For the avoidance of any doubt, this Agreement shall commence upon the delivery of an Invoice to the Client.
3.4. The Client shall ensure that all details set out in the Invoice are accurate and correct.
- SERVICE CHANGE ORDERS
4.1. From time to time, but prior to Completion, Deep South Vibes or the Client may propose changes in or additions to the Services, the Specifications and/or the Project IP. No such changes or additions shall be effective or binding on the Parties unless a written service change order (a “Service Change Order”) is signed by the Parties. All such Service Change Orders shall be implemented in accordance with the procedures set out in this clause 4.
4.2. Subject to clause 5.3, if the Client wishes to propose a change in or addition to the Services, the Specifications and/or the Project IP, the Client shall deliver a written notice to Deep South Vibes, describing the proposal. Deep South Vibes shall respond to such proposal as soon as reasonably possible by preparing and delivering, to the Client, a written proposal:
4.2.1. confirming such changes in or additions to the Services, the Specifications and/or the Project IP;
4.2.2. indicating the affect, if any, on the fees payable by the Client to Deep South Vibes in terms hereof, and where such change in or addition to the Services, the Specifications and/or the Project IP will affect such fees, then a new Quote shall accompany such proposal;
4.2.3. indicating any risks/liability associated with implementing such change in or addition to the Services, the Specifications and/or the Project IP; and
4.2.4. indicating any other information, materials and/or documentation which Deep South Vibes may require in order to implement such change in or addition to the Services, the Specifications and/or the Project IP,
(the “Service Proposal”).
4.3. Subject to clause 5.3, if Deep South Vibes wishes to propose a change in or addition to the Services, the Specifications and/or the Project IP, it may do so by preparing and delivering a Service Proposal to the Client which shall contain all of the details set out in clauses 4.2.1 to 4.2.4.
4.4. Upon signature of a Service Proposal by both Parties, such Service Proposal shall become a Service Change Order, and any changes in or additions to the Services, the Specifications and/or the Project IP described in the Service Change Order shall thereafter be deemed to form part of or amend the “Services”, the “Specifications” and/or the “Project IP”, as the case may be. For the avoidance of any doubt, any discussions or communications, including without limitation, any emails, regarding the Service Proposal shall not bind the Parties and only a Service Change Order signed by the authorised representatives of the Parties shall be binding.
5.1. Upon Completion, Deep South Vibes shall issue the Client with written notification thereof.
5.2. In the case of a dispute as to whether Completion has occurred, a certificate in writing by a manager of Deep South Vibes shall be prima facie evidence thereof.
5.3. Subsequent to Completion:
5.3.1. the Client shall be granted a period of 14 (fourteen) days within which to make minor changes to the Project IP, it being agreed that it shall be the sole responsibility of the Client to ensure that it is satisfied with the Project IP; and
5.3.2. any (i) changes made as aforesaid which are not minor; (ii) changes not made in the time period stipulated in clause 5.3.1; and (ii) request for further Services, shall be deemed to constitute a new Order, in which case the provisions of clause 3 shall apply.
- DELIVERY OF EXISTING CLIENT IP TO DEEP SOUTH VIBES
6.1. The Client shall, upon receipt of an Invoice, deliver to Deep South Vibes all documents and other media embodying the Existing Client IP which Deep South Vibes may require in order to perform the Services hereunder.
6.2. All items delivered to Banter Media as aforesaid must be collected from Deep South Vibes, at the Client’s own cost and expense, upon Completion.
PART B: GENERAL
- VESTING OF INTELLECTUAL PROPERTY RIGHTS
10.1. Deep South Vibes acknowledges and agrees that all the right, title and interest in and to the Existing Client IP vests in the Client, alternatively is licensed to the Client, and Deep South Vibes shall not acquire any rights (proprietary or otherwise) in and to the Existing Client IP, save as specifically set out herein. The Client hereby warrants that the Existing Client IP does not violate or infringe the rights, including without limitation, the Intellectual Property Rights of any third party.
10.2. The Client hereby grants to Deep South Vibes, for the duration of this Agreement, a limited, non-exclusive, non-transferable licence to use the Existing Client IP for the purpose of performing the Services. Where the Client is the licensee in respect of the Existing Client IP, then the Client shall ensure that (i) it is entitled to grant the aforesaid licence to Deep South Vibes; and (ii) the provisions of this clause10.2 do not infringe any agreement between the Client and the owner of the intellectual property.
10.3. The Client acknowledges and agrees that all the right, title and interest in and to:
10.3.1. the Existing Deep South Vibes IP vests in Deep South Vibes, alternatively is licensed to Deep South Vibes, and the Client shall not acquire any rights (proprietary or otherwise) in and to the Existing Deep South Vibes IP, save as specifically set out herein;
10.3.2. the Project IP vests in Deep South Vibes or the third party service provider appointed by Deep South Vibes in accordance with this Agreement, subject to clauses 10.4.2 and 10.5.
10.4. Deep South Vibes hereby grants to the Client a limited, non-exclusive, non-transferable licence, which licence the Client is not entitled to sub-licence without the prior written consent of Deep South Vibes, to use:
10.4.1. the Non-severable Existing Deep South Vibes IP for the duration of this Agreement, for the internal purposes of the Client only. For the purposes of this clause 10.4.1, “internal purposes” means utilization of the Non-severable Existing Deep South Vibes IP in order to apply and implement the Project IP within the Client’s business. For the avoidance of any doubt, the Client shall not be entitled to (i) use the Non-severable Existing Deep South Vibes IP for commercial gain; (ii) cede or assign any or all of its rights in and to the Non-severable Existing Deep South Vibes IP to any third party; or (iii) grant any license to use the Non-severable Existing Deep South Vibes IP to any third party; and
10.4.2. the Project IP, until the provisions of clause 10.5 below become applicable.
10.5. Upon payment in full of all fees owing to Deep South Vibes by the Client hereunder, then Deep South Vibes hereby assigns, transfers and makes over to the Client any and all right, title and interest in and to that part of the Project IP which vests in Deep South Vibes, worldwide and in perpetuity, which assignment, transfer and making over, the Client hereby accepts. In respect of that part of the Project IP which vests in any third party, the licence contemplated in clause 10.4.2 shall remain in force and effect for the duration of this Agreement.
10.6. Subsequent to the assignment, transfer and making over contemplated in clause 10.5 above, the Client hereby grants to Deep South Vibes, for the duration of this Agreement, a limited, non-exclusive, non-transferable licence, to use the Project IP for the purpose of marketing, promoting and advertising its services.
10.7. Notwithstanding anything to the contrary contained herein, where the Services consist of the preparation of any Pitch/Campaign Idea, then the Client shall not be entitled to use, in any way whatsoever, any Project IP, or any part thereof, and shall not provide the Project IP or any part thereof to any third party, unless and until (i) Deep South Vibes consents thereto in advance and in writing; and (ii) payment in full has been made to Deep South Vibes in accordance with the Quote relating to such Pitch/Campaign Idea.
- CREDIT FACILITIES
11.1. The Client understands that Deep South Vibes’s decision to grant credit facilities to the Client (if applicable) is at the sole discretion of Deep South Vibes.
11.2. Deep South Vibes reserves the right to withdraw any credit facilities at any time and the nature and extent of such facilities shall at all times be in Deep South Vibes’s sole discretion.
11.3. Despite the fact that Deep South Vibes may grant the Client a credit limit or a credit facility up to a certain amount, Deep South Vibes hereby reserves the right to increase or decrease this amount at its sole discretion. The credit limit shall not be deemed to be the limit of the Client’s indebtedness to Deep South Vibes.
- FEES AND PAYMENT
12.1. The Client shall, when placing an Order with Deep South Vibes in terms of clause 3.1, receive a Quote from Deep South Vibes. Such Quote shall, subject to clause 12.2, be valid for a period of 30 (thirty) days, where after it shall lapse and shall not be binding on Deep South Vibes.
12.2. Where the Services include printing, then that portion of the Quote shall be valid for a period of 7 (seven) Business Days, where after such portion of the Quote shall lapse and shall not be binding on Deep South Vibes.
12.3. The Quote shall specify the number of revisions to the Services which the Client shall be entitled to request. Any further revisions shall be dealt with in accordance with clause 4.
12.4. In the event that the Client accepts the Quote, then an authorised representative of the Client must sign the Quote, and such signed Quote must be returned to Deep South Vibes. Thereafter, Deep South Vibes shall issue an Invoice to the Client, setting out:
12.4.1. a securing fee, to be paid by the Client to Deep South Vibes immediately upon such Invoice being issued to the Client (the “Securing Fee”); and
12.4.2. where applicable, a completion fee, being the balance of the fees payable by the Client to Deep South Vibes, which shall be paid by the Client to Deep South Vibes by no later than 2 (days) from date of Completion.
12.5. The Client specifically acknowledges and agrees that:
12.5.1. Deep South Vibes is entitled to charge 100% (one hundred percent) of the fees payable in respect of the Services as a Securing Fee;
12.5.2. the Securing Fee is not refundable under any circumstances;
12.5.3. unless Deep South Vibes decides otherwise, in its sole and absolute discretion, it shall not render any Services to the Client until the Securing Fee has been paid by the Client, and Deep South Vibes has received proof of payment thereof.
12.6. The Client shall pay any and all amounts owed by it to Deep South Vibes in terms of this Agreement, by:
12.6.1. electronic transfer into a bank account nominated by Deep South Vibes from time to time, in which case the Client shall send Deep South Vibes an email containing proof of payment of the amount so paid; or
12.6.2. debit order, in which case the terms and conditions contained within the Debit Order Form made available on Deep South Vibes’s website shall apply; or
12.6.3. cash, directly to Deep South Vibes, in which case the Client shall be required to pay Deep South Vibes an extra surcharge in the amount of 5% (five percent) of the cash amount paid to Deep South Vibes.
12.7. Any amount falling due for payment by the Client to Deep South Vibes shall bear interest at the rate of 12% (twelve percent) from due date until date of payment, calculated and payable monthly in advance. Should the said interest not be paid in full by the Client, such interest will be added to the principal sum, and the total shall form the principal debt which shall then bear interest in the same way as set out above. In the case of a dispute as to the rate of interest, a certificate in writing by a manager or accountant of Deep South Vibes shall be prima facie evidence thereof.
12.8. The Client shall be liable for any and all bank charges payable for any direct deposits hereunder.
Deep South Vibes shall be granted a credit in all Project IP, and the Client hereby consents thereto.
- WARRANTIES AND INDEMNITY
14.1. The Client hereby warrants that it:
14.1.1. is aware of the nature of the Services which it is procuring hereunder;
14.1.2. shall comply at all times with all applicable laws and regulations.
14.2. The Client hereby indemnifies and holds Deep South Vibes harmless from and against any loss, claim, action, damage, or expense suffered or sustained by Deep South Vibes or by any third party, pursuant to or arising out of the breach by the Client of its obligations, representations or warranties contained in this Agreement, howsoever arising.
14.3. The Client hereby undertakes and agrees to comply at all times with the provisions of the CPA regarding refunds and the implied warranties in respect thereof. To the extent that any claim is made and/or any loss or damages are suffered by the Client as a result of a failure by the Client to comply with these provisions of the CPA, the Client hereby indemnifies Deep South Vibes accordingly.
- LIMITATION OF LIABILITY
15.1. Notwithstanding anything to the contrary contained in this Agreement, but subject at all times to applicable laws, Deep South Vibes shall not be liable for any loss or damage as a result of:
15.1.4. the use of any Non-severable Existing Deep South Vibes IP and/or Project IP in a manner other than that for which it was designed or contemplated;
15.1.5. any errors or misunderstandings that occur during the placing of an Order or a Service Change Order, or for the failure by the Client to provide Deep South Vibes with any correct and accurate information when placing an Order or as set out on any Quote or Invoice;
15.1.6. any alteration to the Order in a manner other than in accordance with clause 4;
15.1.7. the Client delaying the Order process;
15.1.8. any act or omission by any third party to whom Deep South Vibes has ceded, assigned, transferred and/or sub-contracted any of its rights and/or delegated any of its obligations hereunder in terms of clause 22; and
15.1.9. the use of any third party intellectual property as part of the Services.
15.2. Subject to applicable laws, under no circumstances whatsoever, including as a result of its negligent acts or omissions or those of its servants, agents or contractors or other persons for whom in law it may be liable, shall Deep South Vibes or its servants (in whose favour this constitutes a stipulatio alteri) be liable for any indirect, extrinsic, incidental, special, penal, punitive, exemplary or consequential loss or damage of any kind whatsoever or howsoever caused (whether arising under contract, delict or otherwise and whether the loss was actually foreseen or reasonably foreseeable), sustained by the Client, its directors and/or servants, including but not limited to any loss of profits, revenue, economic loss, loss of operation time, corruption or loss of information and/or loss of contracts, arising from the Services or the use of the Project IP and/or the Non-severable Existing Deep South Vibes IP.
15.3. Subject to clauses 15.1 and 15.2, and subject to applicable laws, Deep South Vibes’s liability for any loss or damages arising out of or related to this Agreement (including without limitation in connection with the performance or omission by Deep South Vibes of its obligations and duties under this Agreement) shall be limited to the total amount payable by the Client to Deep South Vibes in terms of the Invoice in relation to the incident which gave rise to such loss or damages.
- DISCLOSURE OF PERSONAL INFORMATION
16.1. The Client will be required to provide Deep South Vibes with the following personal information when placing an Order: name of holding company (if any); name of company/close corporation; registration number; VAT number; tax number; fiscal year end; work telephone number; postal address; physical address; province; website URL; accounts contact person; accounts email address; accounts contact telephone number; first name of general contact person at the client; surname of general contact person at the client; designation of general contact person at the client; mobile number of general contact person at the client; email address of general contact person at the client; date of birth of general contact person at the client (not compulsory); telefax number.
16.2. The Client understands, and hereby agrees, that the personal information given to Deep South Vibes when placing any Order is to be used by Deep South Vibes for the purposes of:
16.2.1. assessing the Client’s credit worthiness (where applicable);
16.2.2. rendering the Services to the Client;
16.2.3. the marketing of any specials or promotional offers to the Client in respect of new features, products or services, and/or to improve the Services that Deep South Vibes offers by tailoring them to the Client’s needs. The Client may at any stage opt-out from receiving future promotional information from Deep South Vibes;
16.2.4. providing certain third party service providers, sub-contractors and suppliers with such information (i) in order to enable Deep South Vibes to perform its obligations in terms hereof; or (ii) for the purposes contemplated in clauses 16.2.1 to 16.2.3; or (iii) for statistical and research purposes, or marketing purposes. The Client may at any stage opt-out from receiving future promotional information from any such third party, and Deep South Vibes shall, to the extent required by the Client, assist the Client therewith.
16.3. The Client undertakes that any personal information provided by the Client to Deep South Vibes will be held securely and in accordance with the provisions of applicable laws, and Deep South Vibes shall ensure that any third party to whom it provides such personal information as contemplated in clause 16.2.4 shall abide by the provisions of this clause 16.3.
16.4. The Client confirms that the information given by it when placing an Order is accurate and complete. The Client further agrees to update such information, failing which Deep South Vibes will not be liable for any inaccuracies or lack of completeness of such information, or any consequential failure to render the Services properly.
17.1. Deep South Vibes shall be entitled to immediately terminate this Agreement if:
17.1.2. the Client fails to comply with clause 8.2; or
17.1.3. the circumstances set out in clause 7.9 occur.
17.2. The Client shall be entitled to terminate this Agreement on 30 (thirty) days’ written notice to Deep South Vibes, provided that if Deep South Vibes has already commenced the provision of any Services, then the Client shall immediately pay Deep South Vibes in respect of such Services already rendered.
18.1. If the Client –
18.1.1. commits a breach of any term of this Agreement and fails to remedy such breach within 7 (seven) Business Days of receipt of notice from Deep South Vibes requiring it to do so, provided that if the breach can reasonably be remedied within a shorter period, Deep South Vibes may specify that shorter period in the notice and the Client shall remedy the breach within that period;
18.1.2. takes steps to place itself, or is placed, in liquidation, whether voluntary or compulsory, or in judicial management, in either case whether provisionally or finally;
18.1.3. takes steps to be deregistered or is deregistered;
18.1.4. commits an act of insolvency as defined in the Insolvency Act of 1936, or, being a corporate body, commits an act which would be such an act of insolvency if committed by a natural person;
18.1.5. fails to satisfy a judgement against itself within 10 (ten) days after the Client becomes aware of the judgement, except that if the Client provides evidence on an ongoing basis to the reasonable satisfaction of Deep South Vibes that steps have been initiated within the 10 (ten) days to appeal, review or rescind the judgement and to procure suspension of execution and that such steps are being expeditiously pursued, the period of 10 (ten) days shall run from the date the judgement becomes final or the attempt to procure suspension of execution fails, the Client shall be in default.
18.2. If the Client is in default, then Deep South Vibes shall be entitled, in addition to all other remedies at law, to cancel this Agreement or claim damages against the Client.
- CONSEQUENCES OF CANCELLATION AND TERMINATION
19.1. Upon cancellation or termination of this Agreement pursuant to clauses 17 or 18, then in addition to any other remedy available to Deep South Vibes at law or in terms of this Agreement:
19.1.1. the Client shall immediately pay to Deep South Vibes any amount owing to Deep South Vibes;
19.1.2. the Client shall not be entitled to any refund in respect of any amount paid to Deep South Vibes hereunder;
19.1.4. where the Agreement is cancelled as a result of a breach of clause 10.7, the Client shall be required to immediately pay Deep South Vibes the amount in the Quote in respect of the Pitch/Campaign Idea;
19.1.5. all rights and entitlements of the Client under this Agreement will cease; and
19.1.6. each Party shall return or on written request of the other Party, destroy documents, handwritten notes, computer disks and other formats in which the Confidential Information of that Party is stored.
20.1. Save in respect of those provisions of this Agreement which provide for their own remedies which would be incompatible with arbitration, a dispute which arises in regard to –
20.1.1. the interpretation of; or
20.1.2. the carrying into effect of; or
20.1.3. either of the Parties’ rights and obligations arising from; or
20.1.4. the termination or purported termination of or arising from the termination of; or
20.1.5. the rectification or proposed rectification of this Agreement, or out of or pursuant to this Agreement, (other than where an interdict is sought or urgent relief may be obtained from a court of competent jurisdiction), shall be submitted to and decided by arbitration.
20.2. That arbitration shall be held –
20.2.1. with only the parties and their representatives other than legal representatives, present thereat;
20.2.2. at Johannesburg.
It is the intention that the arbitration shall, where possible, be held and concluded in 21 (twenty one) working days after it has been demanded. The Parties shall use their best endeavours to procure the expeditious completion of the arbitration.
20.3. Save as expressly provided in this Agreement to the contrary, the arbitration shall be subject to the arbitration legislation for the time being in force in South Africa.
20.4. The arbitrator shall be an impartial admitted practising attorney of not less than 15 (fifteen) years’ standing appointed by the Parties or, failing agreement by the Parties within 7 (seven) days after the arbitration has been demanded, at the request of either of the Parties shall be nominated by the President for the time being of the Law Society of the Northern Provinces (or its successor body in Gauteng), whereupon the Parties shall forthwith appoint such person as the Arbitrator. If that person fails or refuses to make the nomination, either party may approach the High Court of South Africa to make such an appointment. To the extent necessary, the court is expressly empowered to do so.
20.5. The Parties shall keep the evidence in the arbitration proceedings and any order made by any arbitrator confidential.
20.6. The arbitrator shall be obliged to give his award in writing fully supported by reasons.
20.7. The provisions of this clause are severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
20.8. The arbitrator shall have the power to give default judgment if any Party fails to make submissions on due date and/or fails to appear at the arbitration.
20.9. The arbitrator, but acting as an expert and not as an arbitrator, may “make the contract” between the Parties by completing any gaps in the contract or by determining any matter which has been or is left to be agreed upon by the Parties and on which they have not reached agreement. In such a case the arbitrator shall be entitled to reject any submissions made by the Parties and to make his own independent decision. His decision shall be final and binding on the Parties.
20.10. The arbitrator’s award shall be final and binding on the Parties. There shall be a right of appeal against any award of the arbitrator provided that –
20.10.1. the appeal is noted within 30 (thirty) days of the arbitrator’s award;
20.10.2. the appellant delivers the record to the respondent within 14 (fourteen) days of the record becoming available to the appellant. The relevant provisions of this arbitration clause shall apply mutatis mutandis in regard to the appeal.
The appeal shall be heard before a panel of 3 (three) arbitrators and in accordance with the provisions of clause 21.4.
20.11. The costs of any venue, arbitrator’s remuneration, recording, transcription and other costs and expenses ancillary to the hearing shall be borne by the Parties in equal shares and shall be recoverable, as costs in the cause under the provisions of any award. The Parties, together with the arbitrator will agree form time to time on the arbitrator’s remuneration, which will be paid by the Parties in equal shares, upon receipt of invoices therefor.
- CESSION, ASSIGNMENT AND SUB-CONTRACTING
Deep South Vibes shall be entitled to freely cede, assign, transfer and/or sub-contract any or all of its rights and delegate any or all of its obligations hereunder to any third party without the prior consent of the Client. The Client shall not be entitled to cede, assign, transfer and/or sub-contract any of its rights or delegate any of its obligations hereunder to any third party without the prior written consent of Deep South Vibes.
- FORCE MAJEURE
22.1. If either Party is prevented or restricted directly or indirectly from performing or carrying out all or any of its obligations in terms of this Agreement by reason of force majeure the Party so affected –
22.1.1. shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented;
22.1.2. shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages, whether general, special or consequential, which the other Party may suffer due to such delay or failure;
provided always that written notice shall, within 48 (forty eight) hours of the occurrence constituting force majeure, be given of any such inability to perform by the affected Party, and provided further that the obligations to give such notice shall be suspended to the extent necessitated by such force majeure.
22.2. Either Party invoking force majeure shall use its reasonable endeavours, to the extent possible in the circumstances prevailing from time to time, to terminate the circumstances giving rise to force majeure and upon termination of the circumstances giving rise thereto, shall forthwith give written notice thereof to the other Party.
22.3. The Parties agree that, if force majeure occurs as contemplated herein, the duration of the relationship between the Parties shall be extended by the period for which such force majeure continues. However, should force majeure last more than 15 (fifteen) days, the Party who has not claimed force majeure may terminate the relationship between the Parties, provided that (i) no Party shall incur any liability as a result of any damages, costs, claims, losses and/ or damages suffered and/or incurred by the other Party as a result of such force majeure and/or the termination of the relationship between the Parties in terms hereof; and (ii) the Parties shall make such financial adjustment between themselves as may be equitable in the circumstances.
22.4. For the purposes of this clause 23, the term force majeure shall include any act of God, inclement weather, strikes, lockouts, other industrial disturbances, terrorist acts, wars, blockades, insurrections, riots, epidemics, illness, quarantine restrictions, landslides, lightning, earthquakes, fires, storms, floods, including, but not limited to, the possible presence of shares, arrests and restraints by any governmental authorities, civil disturbances, acts of any governmental, local or municipal authority, the promulgation and/or amendment of any legislation, regulation and by-laws, breakdown of machinery, software failure, hardware failure, third party interference, any act or omission of any third party, telecommunication disturbances, all force majeure events as defined in this Agreement and any other cause beyond the reasonable control of the affected Party.
- APPLICABLE LAW, JURISDICTION
23.1. This Agreement and its termination shall be governed by and interpreted in accordance with the laws of the Republic of South Africa.
23.2. The Parties agree that, subject to clause 21, any legal action or proceedings arising out of or in connection with this Agreement may be brought in the South Gauteng High Court (or any successor to that court) and the Parties irrevocably submit to the non-exclusive jurisdiction of such court.
- SUPERSESSION, VARIATIONS, RELAXATIONS, INDULGENCES AND WHOLE AGREEMENT
24.1. This Agreement constitutes the whole agreement between the Parties relating to the subject matter hereof and supersedes any other discussions, agreements and/or understandings regarding the subject matter hereof.
24.2. No additions to, variation, amendment, waiver or consensual cancellation of this Agreement or of any of its terms or provisions, shall be of any force or effect unless in writing and signed by or on behalf of the Parties.
24.3. No settlement of any disputes arising under this Agreement, and no extension of time, waiver, relaxation or suspension of any of the provisions or terms of this Agreement, shall be of any force or effect unless in writing and signed by or on behalf of the Parties.
24.4. No extension of time, waiver, indulgence or relaxation of any of the provisions or terms of this Agreement which any Party to this Agreement (the “Grantor“) may grant to any other Party to this Agreement (the “Grantee“) shall operate as an estoppel against the Grantor in respect of the Grantor’s rights under this Agreement, nor shall any such extension of time, waiver, indulgence or relaxation prejudice or constitute a waiver of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee strictly in accordance with this Agreement.
24.5. This Agreement contains all the express provisions agreed on by the Parties with regard to the subject matter of this Agreement and the Parties waive the right to rely on any alleged express provision not contained in this Agreement. For the avoidance of any doubt, no Party shall be bound by any representation, warranty or promise not expressly recorded in this Agreement.
Any provision in this Agreement which is or may become illegal, invalid or unenforceable in any jurisdiction affected by this Agreement shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be treated as pro non scripto and severed from the balance of this Agreement, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
- DOMICILIA CITANDI ET EXECUTANDI
26.1. The Parties choose as their domicilia citandi et executandi for all purposes under this Agreement, whether in respect of notices or other documents or communications of whatsoever nature, the following addresses:
26.1.1. The Client:
The address/es and fax number set out on the Invoice.
26.1.2. Deep South Vibes:
Physical: 7th Floor, Mandela Rhodes Place, Cnr. Wale & Burg Street, Cape Town;
Postal: Postnet Suite #430/Private Bag X4, Sunvalley, Western Cape 7985;
Telephone: +27 21 410 8895
26.2. Either Party may by notice to the other Party change the physical address chosen as its domicilium citandi et executandi to another physical address where postal delivery occurs in South Africa or its postal address or its fax number, provided that the change shall become effective on the 7th (seventh) Business Day from the deemed receipt of the notice by the other Party.
26.3. Any notice to a Party –
26.3.1. delivered by hand to a responsible person during ordinary business hours at the physical address chosen as its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
26.3.2. sent by telefax to its chosen telefax number stipulated in clause 27.1, shall be deemed to have been received on the date of despatch (unless the contrary is proved); or
26.3.3. is posted by prepaid registered post from an address within South Africa to the addressee’s address stated in clause 27.1, shall be presumed, until the contrary is proved, to have been received by the addressee on the 7th day after the date of posting.
26.4. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
- NO PARTNERSHIP
Nothing in this Agreement shall be deemed to create a joint venture, partnership or principal and agent relationship between Deep South Vibes and the Client.
- INDEPENDENT ADVICE
Each Party acknowledges that it has been free to secure independent legal and other advice as to the nature and effect of all the provisions of this Agreement and that it has either taken such independent legal and other advice or dispensed with the necessity of doing so. Further, each Party acknowledges that all of the provisions of this Agreement and the restrictions herein and therein contained have been negotiated as between them and are part of the overall intention of the Parties in connection with this Agreement.
- EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts all of which, when read together, shall constitute one and the same instrument. A facsimile shall constitute a valid counterpart for all purposes hereunder.