It is recorded that -
1.1. the Customer has identified a need to appoint a service provider to render the Services to the Customer;
1.2. the Supplier wishes to render the Services to the Customer and submitted a Cost Estimate detailing the Services, together with its proposed pricing for the carrying out of the Services;
1.3. the Customer accepted the Cost Estimate of the Supplier, by means of online signature or written confirmation and has appointed the Supplier to provide the Services in accordance with the terms and conditions of this Agreement; and
1.4. the Parties agree as set out herein.
In this Agreement, unless the context otherwise requires, the following capitalised terms shall have the meanings assigned to them below and cognate expressions shall have corresponding meanings:
2.1.1 “Background Intellectual Property” means Intellectual Property Rights belonging to a Party prior to the Effective Date of this Agreement;
2.1.2 “Cost Estimate” the quoted prices for the Services to be provided as well any additional costs that may be applicable in relation to the Services to be provided and as may be subsequently amended in accordance with this Agreement;
2.1.3 “Effective Date” means the Signature Date;
2.1.4 “Expiry Date” the completion of the Services, defined hereunder, unless such date has by written mutual agreement of the Parties been extended to a later date;
2.1.5 “Failure” any failure by the Supplier to perform the Services in accordance with the clause 9.2 (Service Standards);
2.1.6 “Good Industry Practice” applying, in relation to the manner in which the Services are rendered, the standards, practices, methods and procedures conforming to applicable law, and exercising that degree of skill, care, diligence, prudence and foresight that would reasonably and ordinarily be expected from a skilled and experienced person engaged in a similar type of undertaking under similar circumstances;
2.1.7 "Intellectual Property Rights" means, without derogating from the ordinary meaning thereof, all copyrights, all rights conferred under statute, common law or equity with regard to all inventions, (including patents), registered and unregistered trademarks and trade names, registered and unregistered designs and models, circuit layouts, plant breeder’s rights, trade secrets, Confidential Information, formulas, recipes and all other rights resulting from intellectual activities in the medical, industrial, science, literary or artistic fields, including the right to apply for any of the above, whether capable of registration in any relevant registration office or not;
2.1.8 “Intellectual Property” any subject matter, whether tangible or intangible, that attracts, or is susceptible to protection by, Intellectual Property Rights;
2.1.9 “OHASA” Occupational Health and Safety Act 85 of 1993;
2.1.10 “Parties” the Customer and the Supplier, and any reference to “a Party” shall refer to one of the relevant Parties as required by the context;
2.1.11 “Project Manager” the respective representatives of the Parties as appointed and nominated from time to time with responsibility for the liaison and project management function in respect of this Agreement;
2.1.12 “Services” the services to be provided by the Supplier to the Customer as set out in the approved quotation and as may be subsequently amended in accordance with this Agreement;
2.1.13 “Signature Date” means the date of last signature of this Agreement by the Parties thereto;
2.1.14 “Site(s)” means the premises at which the Supplier is required to provide the Services;
2.1.15 “Termination Date” any date on which this Agreement is terminated in accordance with its terms other than by way of effluxion of time; and
2.1.16 “the/this Agreement” this service level agreement between the Parties together with the approved quotation.
This Agreement shall be interpreted according to the following provisions, unless the context requires otherwise:
2.2.1. References to the provisions of any law shall include such provisions as amended, re-enacted or consolidated from time to time in so far as such amendment, re-enactment or consolidation applies or is capable of applying to any transaction entered into under this Agreement.
2.2.2. References to “Parties” shall include the Parties’ respective successors-in-title and, if permitted in this Agreement, their respective cessionaries and assignees.
2.2.3. References to a “person” shall include an individual, firm, company, corporation, juristic person, trust, organisation, association or partnership, whether or not having separate legal personality.
2.2.4. References to any other contract or document shall include (subject to all approvals required to be given pursuant to this Agreement for any amendment or variation to or novation or substitution of such contract or document) a reference to that contract or document as amended, varied, novated or substituted from time to time.
2.2.5. Words in parentheses and italics appearing after a clause reference or a reference to a Schedule are inserted for ease of reference only. If there is any discrepancy between the clause reference and the words in parentheses and italics, the latter shall prevail.
2.2.6. The approved quotation is an integral part of this Agreement and shall be referenced throughout the agreement.
2.2.7. The Parties acknowledge that each of them has had the opportunity to take legal advice concerning this Agreement, and agree that no provision or word used in this Agreement shall be interpreted to the disadvantage of either Party because that Party was responsible for or participated in the preparation or drafting of this Agreement or any part of it.
2.2.8. Words importing the singular number shall include the plural and vice versa, and words importing either gender or the neuter shall include both genders and the neuter.
2.2.9. References to “this Agreement” shall include this Agreement as amended, varied, novated or substituted in writing from time to time.
2.2.10. The number of days indicated to commit an act or indicated for any other purpose, is calculated by excluding the first day and including the last day.
2.2.11. If any definition in clause 3.1 (Definitions) contains a substantive provision conferring rights or imposing obligations on any Party, effect shall be given to such provision as if it was a substantive provision in the body of this Agreement.
The Customer appoints the Supplier on a non-exclusive basis, which appointment the Supplier accepts, to render the Services to the Customer in accordance with the terms and conditions of this Agreement.
Each Party shall co-operate with the other in the exercise and performance of their respective rights and obligations under this Agreement.
This Agreement and the rights and obligations of the Parties under this Agreement shall take effect on the Effective Date and terminate on the earlier of the Expiry Date or the Termination Date.
6.1. The Supplier shall in the provision of the Services, avoid undue hindrance, interruption or interference with the operations of the Customer or otherwise hinder the activities of the Customer and its employees, save to the extent entitled to do so in terms of this Agreement or as may be reasonably necessary for the performance of the Services under this Agreement.
6.2. The Customer shall at all reasonable times and with prior written notice have access to (including the right to reproduce) all records and documentation required by the Supplier to be kept in relation to the Services for purposes of auditing, quality control and monitoring of the Services by the Customer.
The Customer -
7.1. shall grant the Supplier reasonable access to the Site to enable it to properly perform the Services in terms of this Agreement;
7.2. shall compensate the Supplier for the performance of the Services in accordance with clause 14 (Payment);
7.3. shall, without prejudice to the obligation of the Supplier to provide the Services, provide reasonable assistance to the Supplier in its performance of the Services, and specifically, to ensure as far as it may be reasonably possible from its end, a smooth integration and synchronization process to synchronize and integrate the activities of the Supplier and the Customer; and
7.4. shall inform the Supplier of its policies, procedures, protocols and directives as may be applicable to the Services and shall timeously inform the Supplier of any amendments thereto; and
7.5. shall timeously supply all required Intellectual Property as requested from time to time by the Supplier in accordance with the timelines agreed on by both Parties.
The Supplier shall provide the Services in accordance with this Agreement with effect from the Effective Date for the duration of the Agreement and shall be entitled to payment for the Services in accordance with clause 14 (Payment) as from the Effective Date.
The Supplier shall carry out the Services (each as a separate and distinct obligation) –
8.2.1. in accordance with the brief received in the onboarding meeting;
8.2.2. at its own cost, risk and expense, subject to the Cost Estimate, and in accordance with Good Industry Practice;
8.2.3. in a manner that complies with and meets the requirement of all applicable law;
8.2.4. utilizing non-hazardous goods, consumables, materials and equipment that are of a satisfactory quality according to Good Industry Practice;
8.2.5. in a manner which gives priority to health and safety in the performance of the Services in order to protect life, health, property and the environment;
8.2.6. in compliance with OHASA;
8.2.7. in compliance with the reasonable policies, procedures, protocols and directives of the Customer (as may be amended from time to time) as indicated; and
8.2.8. so that all persons employed in connection with the performance of the Services have the necessary skills and experience as required by their respective professions, trades and callings and taking into account their roles and responsibilities in relation to the Services;
8.2.9. so that all aspects of the Services are supervised by sufficient numbers of persons having adequate knowledge of such matters for the satisfactory and safe performance of the Services having regard to the activities which are carried on at the Site; and
8.2.10. in accordance with the provisions of this Agreement.
8.3.1. In the event that the Customer either appoints a third-party agent to render any portion of the Services, it is expressly agreed that -
184.108.40.206. payments to the Supplier shall not be subject to performance of the agent or payments between the agent and the Customer;
220.127.116.11. all communications, including but not limited to, correspondence, instructions and feedback, including but not limited to direction, timeous feedback, creative guidance, related clearances, received from the agent are deemed to have been confirmed and approved by the Customer;
18.104.22.168. notwithstanding the appointment of an agent, direct communication between the Customer and the Supplier shall be ensured.
22.214.171.124. in the event that direct communication between the Customer and the Supplier is not permitted, the agent herewith indemnifies the Supplier against any damages, loss or time wastage occasioned by, but not limited to, miscommunications and incorrect instructions received from the agent.
8.4. Furnishing Materials, Media and Releases
8.4.1. The Customer shall timeously supply all required media, deliverables and/or Intellectual Property as requested from time to time by the Supplier in accordance with the timelines agreed on by both parties.
8.4.2. Notwithstanding clause 10, delayed delivery of media, assets or Intellectual Property may result in the date of the event or Service being postponed, amended or extended accordingly at no cost to the Supplier and the Customer shall be liable for any additional costs incurred, if any, occasioned by such delay, amendment and/ or extension.
8.4.3. The Supplier shall, upon request, deliver to the Customer consents, waivers or releases from all talent and all persons or entities who the Customer has selected in connection with the production to the extent permissible by applicable union or guild agreements.
9.1. Customer Postponement or Cancellation
126.96.36.199. All cancellations must be done by the Customer in writing.
188.8.131.52. If notice of cancellation is given to the Customer within 1 (ONE) to 5 (FIVE) days, including the day of the production, before the commencement of the shoot or date of set up, whichever is the earliest, the Customer will be liable to the Supplier 100% (ONE HUNDRED PERCENT) of the Cost Estimate.
184.108.40.206. If notice of cancellation is given to the Customer within 6 (SIX) to 10 (TEN) days, including the day of the production, before the commencement of the shoot or date of set up, whichever is the earliest, the Customer will be liable to the Supplier 75% (SEVENTY FIVE PERCENT) of the Cost Estimate.
220.127.116.11. If notice of cancellation is given to the Customer within 11 (ELEVEN) or more days, including the day of the production, before the commencement of the shoot or date of set up, whichever is the earliest, the Customer will be liable to the Supplier 50% (FIFTY PERCENT) of the Cost Estimate.
18.104.22.168. All postponements must be furnished by the Customer in writing.
22.214.171.124. If notice of postponement is given to the Supplier within 1 (ONE) to 5 (FIVE) days, including the day of the production, before the commencement of the shoot or date of set up, whichever is the earliest, the Customer will be liable to the Supplier for 10% (TEN PERCENT) of the accepted Cost Estimate plus any penalties, fees and charges levied by suppliers or contractors.
126.96.36.199. If notice of postponement is given to the Supplier within 6 (SIX) to 10 (TEN) days before the commencement of the shoot or date of set up, whichever is the earliest, the Customer will be liable to the Supplier for 5% (FIVE PERCENT) of the Cost Estimate plus any penalties, fees and charges levied by suppliers or contractors.
188.8.131.52. If notice of postponement is given to the Supplier 11 (ELEVEN) or more days before the commencement of the shoot or date of set up, whichever is the earliest, the Customer will be liable to the Supplier for 0% (Zero per cent) of the Cost Estimate plus any penalties, fees and charges levied by suppliers or contractors.
184.108.40.206. Any shoots or productions postponed must be rescheduled within 30 (THIRTY) calendar days from the original date of the shoot or production.
220.127.116.11. Any postponed shoots or productions not rescheduled within 30 (THIRTY) calendar days will be deemed a cancellation without notice and the Customer shall immediately become liable for the payments due in accordance with clause 10.1.1.
9.2. Supplier Postponement or Cancellation
9.2.1. In the event of the postponement or cancellation of a campaign/project, the circumstances of which are outside the Supplier’s control, the Customer will, in circumstances referred to above, reimburse the Supplier for:
18.104.22.168. all unrecoverable expenses already paid to service providers on behalf of the Customer based on approved scope of services (invoices from such service providers to be provided as evidence of such spend at the Customer’s request);
22.214.171.124. any unavoidable cancellation costs or additional charges to deliver the project on the new dates (documentary evidence from third party suppliers to be provided at the Customer’s request);
126.96.36.199. any direct damages or charges only arising from the early termination of the contract with a third party to the extent of the costs incurred;
188.8.131.52. all agency resource costs incurred, including media resources - all costs payable as per the Cost Estimate. The Supplier shall provide a recon detailing all Services until the date of project postponement or cancellation.
9.2.2. In any scenario of postponement and/or cancellation the Supplier undertakes to act reasonably, honestly and in good faith and take all reasonable steps to minimize cost implication to Customer, and all expenses incurred as a result of Customer’s postponement/cancellation will be documented at the time and shared with the project team and included in the revised scope of services and revised Cost Estimate.
9.2.3. The Supplier may postpone or cancel a scheduled shoot or production in the event that the Customer has delayed or failed to provide the required media, material, assets and/ or information, in the required format or quality, for the Supplier to render the services or production.
- ELECTRICITY INTERRUPTIONS
10.1. Due to the uncertain and unsteady supply of electricity by the government, the Supplier cannot guarantee uninterrupted shooting or production of the Services.
10.2. It is recorded that generators will not be provided in the event of client-location shoots or productions that are held at the Customer’s premises or other third-party locations, unless specifically requested and agreed by the Parties.
10.3. In the event of a ‘live shoot’ or ‘live stream’ event held at the Supplier’s premises or a location subcontracted by the Supplier, a generator will be provided. This shall not include the provision or supply of an uninterruptible power supply (“UPS”) unless requested by the Customer and such shall be costed accordingly.
10.4. It is recorded that despite reasonable commercial efforts by the Supplier, there may be an interruption in the power supply leading to a disruption of a live stream or shoot for a short period of time.
10.5. The provision and supply of a generator at client-location shoots or a UPS at the Supplier’s premises, as indicated above, shall be for the Customer’s account.
10.6. The Supplier will not be liable for any damages, loss or injury caused by the interruption of electricity or disruption in the service being rendered.
- AMENDMENTS AND CHANGES
11.1. A revert is defined as changes requested to correct or improve the Suppliers Media that has been presented to the Customer. In accordance with the Customer’s brief, Media is defined as concept, copy, design, layout, videos, storyboards, treatments, animations and / or scripts (including but not limited to video production being pre- and post-production, still shoots, animation and recordings).
11.2. It is recorded that the Suppliers Services related Cost Estimates will be in respect of presentations to the Customer plus 2 (TWO) Customer reverts (unless stated otherwise in Cost Estimate descriptions) and includes no changes to the Initial brief signed off by the Customer. Any subsequent revert or changes (changes including but not limited to the Customer amending the brief, incorrect information or content resulting in amendments, briefing additional scope of work, added complexity or added number of execution, changes in durations, changes in formats) would be considered over and above those estimated in the Supplier Services Cost Estimate and the Supplier shall have the right to quote the Customer for any additional work required as per agreed rates in the Cost Estimate and/or reconcile time expenditure as per agreed quotation and invoice the Customer for any resource time not quoted in the original Supplier Services Cost Estimate.
11.3. Any additional time and remuneration that has been agreed upon in accordance with clause 12.2 will be calculated and payable as per the rates in the Cost Estimate.
11.4. In the event that the Supplier undertakes additional work, for example in excess of 2 (TWO) reverts, without the Customer’s prior written or verbal approval, the Customer shall not be liable for any costs associated with such additional work.
- PERFORMANCE MONITORING
12.1.1. The Supplier shall be responsible to monitor its performance in the delivery of the Services, and shall implement appropriate monitoring, quality control and management procedures in accordance with Good Industry Practice in respect of the Services, including such monitoring procedures as the Parties may from time-to-time agree.
12.1.2. The Supplier shall conduct regular physical inspections and audits (including spot audits) of its operational activities to determine the quality and standard of performance of the Services.
12.1.3. The Supplier shall regularly review and assess its management and mitigation of Failures so as to implement improvements in the provision of the Services and the reduction of Failures.
12.1.4. On the notification of any Failure or complaint regarding the quality of Services, the Supplier shall attend to such notification with the speed and urgency appropriate to the nature of the Failure or complaint.
12.1.5. The Supplier shall prepare and deliver to the Customer in respect of the previous month a performance report in respect of its performance in the provision of the Services against clause 9.2 (Service Standards), including all Failures and such other information as the Customer may reasonably require from time to time.
The Customer may, carry out such monitoring and/or audit of the quality of the Services as it may convene periodic performance meetings with the Supplier to discuss, review and assess performance and identify trends, problem areas and remedying actions to be undertaken by the Supplier.
12.3. Meetings and Correspondence
12.3.1. It is agreed that correspondence shall be sent via electronic mail (e-mail) and will be responded to promptly and comprehensively.
12.3.2. The Parties shall hold 1 (ONE) status meeting per week and additional ad hoc meetings may be requested as necessary.
13.1.1. Subject to the provisions of this Agreement, the Customer shall as of the Effective Date pay the Supplier for the Services (“Service Fee”) in accordance with the Cost Estimate and the Quotations provided.
13.2.1. All quotations are exclusive of VAT and the customer shall be liable to pay the VAT upon receipt of a VAT invoice.
13.2.2. Quotations issued by the Supplier for the Services shall be valid for 30 (THIRTY) calendar days.
13.2.3. Should the Customer accept the Quotation, a 50% (FIFTY PERCENT) deposit is payable by the Customer within 5 (FIVE) working days upon acceptance of a valid quote, unless otherwise agreed in writing by both parties.
13.2.4. All deposits and payments shall be non-refundable.
13.2.5. No Services shall be rendered by the Supplier without payment of the required deposit unless agreed to otherwise in writing.
13.2.6. The Customer understands that the specified terms of payment under this Agreement are based upon timely cash payments.
13.2.7. All payments (deposits and/ or subsequent payments) made 10 (ten) working days or more after the due date, allocated as a buffer period, shall incur a penalty of 3.5% (THREE AND A HALF PERCENT) of the amount due, per month that payment is delayed, captalised monthly, proportionate to the period that the amount is outstanding.
13.2.8. Half days shall be charged at 75% (SEVENTY FIVE PERCENT) of full day rates.
13.2.9. Ownership of the production shall remain the full and rightful property of the Supplier and shall only be transferred to the Customer following full and final payment by the Customer.
13.2.10. Discounts shall be granted at the discretion of the Supplier and may be adjusted accordingly should there be a change in the order, quotation or circumstances warranting same.
13.2.11. All quotations shall constitute a Cost Estimate based on the information/brief received thus far and is subject to change, should further details be furnished.
13.3.1. Pre-recorded corporate shoot shall consist of 8 (EIGHT) hour days.
13.3.2. Multicamera productions, virtual events and live productions shall consist of 10 (TEN) hour days.
13.3.3. In the event that the shoot runs over the above allocated time slots due to, any impactful time delays directly or indirectly incurred by the Customer, including but not limited to, late arrival of talent, on-site changes or amendments and / or any unnecessary delays to the running order provided, the Customer shall be liable for overtime, which shall be charged at 20% (TWENTY PERCENT) of each crew member’s daily rate, per hour thereafter.
13.3.4. In the event that the shoot exceeds two hours overtime, the Customer shall be liable for double time, which shall be charged at 40% (FORTY PERCENT) of each crew member’s daily rate, per hour thereafter.
13.4.1. The Supplier shall submit to the Customer an invoice detailing and aggregating the –
184.108.40.206. Services rendered during a particular month and the agreed rate therefor, whether based on an hourly tariff or fixed fee;
220.127.116.11. any travel costs incurred;
18.104.22.168. any other amounts agreed or determined to be due and payable under the Agreement by the Customer to the Supplier; and
22.214.171.124. any interest due in accordance with clause 14.3.3; and
126.96.36.199. any value added tax (“VAT”) payable.
14.1.1. This Agreement shall automatically be terminated on the Expiry Date, unless it has been terminated earlier in accordance with the provisions of this Agreement.
14.1.2. To avoid doubt it is recorded that neither Party shall be entitled to any compensation on termination of this Agreement in accordance with clause 15.1.1.
Should any Party (the “guilty party”) commit a breach of this Agreement and fail or refuse to rectify that breach within 14 (FOURTEEN) days after receipt of a written notice from the other Party (the “innocent party”), calling upon the guilty party to rectify that breach, the innocent party shall be entitled, without prejudice to any other of his rights, to forthwith cancel this Agreement by written notice to the guilty party.
The Supplier warrants that -
15.1.1. the obligations of the Supplier under this Agreement are legal, valid and binding and enforceable against it in accordance with the terms of the Agreement;
15.1.2. has satisfied itself as to the nature and extent of the Services to be provided in terms of the Agreement; and
15.1.3. has the necessary resources, skills, expertise and experience required to carry out the Services in terms of this Agreement and will use reasonable care and skill in the execution of the same under this Agreement.
The Customer warrants that -
15.2.1. it has taken all necessary actions to authorise the execution of this Agreement; and
15.2.2. it has not knowingly omitted to disclose any material information in its possession or under its control relating to the Services or Sites.
The Parties shall, notwithstanding any other provision in this Agreement, in any event not be liable for any special, consequential or indirect damages, or any damages due to loss of income or revenue, due to any breach of this Agreement, the termination thereof or any delictual or other claim arising out of this Agreement or the obligations to be performed by the Parties pursuant to or in terms of this Agreement.
17.1. Each Party acknowledge that in the course of negotiation and operation of this Agreement that the Parties will be exposed to confidential information, documents, procedures, material and trade secrets (“Confidential Information”) and both Parties undertake to not, except where the prior written consent of the Party from whom the Confidential Information was obtained, publish or otherwise disclose to any person the Confidential Information except for the purposes of this Agreement.
17.2. Each Party (“Receiving Party”) must treat and hold as confidential all Confidential Information which they may receive from the other party (“Disclosing Party”) or which becomes known to them in the pursuit of this Agreement.
17.3. The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s Confidential Information, unless the Disclosing Party has expressly agreed otherwise in writing –
17.3.1. the Receiving Party will only make the Confidential Information available to those of the Receiving Party’s employees who are actively involved in the execution of the Receiving Party’s rights or obligations under this Agreement and then only on a “need to know” basis;
17.3.2. the Receiving Party will only use and will ensure that its employees only uses the Confidential Information for the purposes of executing its rights or obligations under this Agreement;
17.3.3. the Receiving Party will not and will ensure that its employees does not either use any Confidential Information of the Disclosing Party or directly or indirectly disclose any Confidential Information of the Disclosing Party to any third party other than as allowed in terms hereof;
17.3.4. the Receiving Party will initiate internal security procedures at least as strict as it uses for its own information of a similar nature to prevent unauthorised use and disclosure and will take all practical steps to impress upon those employees who need to be given access to Confidential Information, the secret and confidential nature thereof;
17.3.5. all written instructions, drawings, notes, memoranda and records of whatever nature relating to the Confidential Information of the Disclosing Party which have or will come into the possession of the Receiving Party and its employees, will be and will at all times remain the sole and absolute property of the Disclosing Party and shall promptly be handed over to such Disclosing Party upon request; and
17.3.6. the Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any breach of confidence in respect of the Confidential Information of the Disclosing Party by any person within it or by any person to whom it has divulged such Confidential Information and shall give the Disclosing Party all reasonable assistance in connection with any proceedings which it may institute as a result.
17.4. Each Party may disclose Confidential Information which would otherwise be subject to clause 18.1 if it can demonstrate that –
17.4.1. such disclosure is required by law or by any regulatory or governmental body having jurisdiction over it; or
17.4.2. the Confidential Information was lawfully in its possession prior to its disclosure by the other Party (as evidenced by written records); or
17.4.3. the Confidential Information has come into the public domain other than through its fault; and
17.4.4. is independently developed by the receiving Party, provided that any such disclosure will, insofar as is permitted by law, not be made without prior notice to the Party from whom the Confidential Information was obtained.
18.1. The Customer shall nominate and appoint a Project Manager from time to time by written notification of their appointment to the Supplier, and said Project Manager shall exercise all functions, powers, duties and obligations of the Customer as stipulated and identified in this Agreement as well as all other related functions, powers, duties and obligations as required from time to time and with notification to the Supplier.
18.2. Notwithstanding the above, any employee of the Customer, or external representative or expert appointed or arranged by the Supplier, designated to the Services for a specific area of responsibility shall be deemed to be a representative of that area.
19.1. Should any dispute arise between the Parties in relation to this Agreement or any issue arising therefrom:
19.1.1. The authorised representatives, as appointed by each Party, shall meet as soon as reasonably practicable (but no less than 5 days of such meeting being requested in writing by either Party) to try to resolve the dispute and shall, if required by either Party, continue to negotiate for at least five (5) consecutive days (or such other period as may be agreed by the Parties in writing);
19.1.2. If the dispute is not resolved at the meeting pursuant to clause 20.1.1, the dispute shall be referred to an urgent meeting of the Chief Executive Officers of the Parties or such representatives as may be appointed by their Chief Executive Officers. This meeting is to take place within 5 (FIVE) days of the matter being referred to them or such other period as may be agreed by the Parties in writing;
19.1.3. If the dispute has not been resolved within 5 (FIVE) days of the meeting contemplated in clause 20.1.2 (or such other period as may be agreed by the Parties in writing), either Party may refer the dispute to arbitration in accordance with the terms of clause 20.2.
19.2. In the event of there being a dispute relating to or arising out of this Agreement, including regarding the scope, effect, validity, implementation, execution, interpretation, rectification, termination or cancellation of this Agreement, which is not resolved in accordance with clause 20.1 then, save where otherwise provided in this Agreement, such dispute shall be finally resolved on the terms as provided for below:
19.2.1. In the event of any such dispute or difference arising between the Parties the said dispute or difference shall on written demand by any Party to the dispute be submitted to arbitration in the English language in accordance with the commercial rules of the Arbitration Foundation of South Africa (“AFSA”) subject to the terms stipulated in this Agreement and applicable law.
19.2.2. The Arbitrator shall be, if the matter in dispute is principally:
188.8.131.52. a technical matter, an independent technical expert of not less than 10 (TEN) years’ experience in the relevant technical area;
184.108.40.206. an accounting matter, an impartial chartered accountant of not less than 10 (TEN) years’ standing;
220.127.116.11. a legal matter, an impartial practising advocate of not less than 10 (TEN) years’ standing;
19.2.3. If the parties fail to agree whether the matter in dispute is of a legal, accounting or technical nature within 7 (SEVEN) days after the arbitration has been demanded, it shall be considered to be a legal matter referred to in Clause 20.2.2(c) above.
19.2.4. Should the Parties fail to agree in writing on an arbitrator within 10 (TEN) days after arbitration has been demanded, the arbitrator shall be nominated at the request of either Party by AFSA.
19.2.5. Subject to either Party’s right to appeal in terms of clause 20.2.6, each of the Parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings:
18.104.22.168. shall be final and binding on each of them; and
22.214.171.124. will be carried into effect; and
126.96.36.199. can be made an order of any competent court to whose jurisdiction the Parties are subject.
19.2.6. Each Party expressly consents to any arbitration in terms hereof being conducted as a matter of urgency; and irrevocably authorises the other Party to the dispute to apply, on behalf of all Parties to the dispute, in writing, to the secretariat of AFSA, in terms of the AFSA rules, for the arbitration to be conducted on an urgent basis.
19.2.7. The Parties irrevocably agree that the submission of any dispute to arbitration in terms of this clause 20.2 is subject to the Parties’ rights of appeal. Either Party may appeal the arbitration ruling by giving written notice to that effect to the other Party to the arbitration within 20 (TWENTY) days of the ruling being handed down. The appeal shall be dealt with in accordance with the rules of AFSA by a panel of 3 (THREE) arbitrators appointed for this purpose by agreement between the Parties and, failing such agreement within 15 (FIFTEEN) days of the appeal being notified by either Party, by AFSA.
19.2.8. Any arbitration in terms of this clause 20.2 shall be conducted in camera and the Parties shall treat as confidential and not disclose to any third-party details of the dispute submitted to arbitration, the conduct of the arbitration proceedings or the outcome of the arbitration, without the written consent of the other Party.
19.2.9. This clause 20.2 shall constitute each Party’s irrevocable consent to the arbitration proceedings described herein, and no Party shall be entitled to withdraw from such proceedings or to claim at such proceedings that it is not bound by this clause.
19.3. The cost of the arbitration proceedings shall be borne by the Parties as decided by the arbitrator.
19.4. Notwithstanding the provisions of this clause 20, any Party shall be entitled to approach a competent court of law having jurisdiction to obtain any urgent relief which may be required by such Party.
19.5. 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.
20.1. For the avoidance of doubt, and subject to agreement with third parties, it is hereby recorded that the ownership in any and all Background Intellectual Property owned by any Party prior to the Effective Date shall be and remain vested exclusively in the Party who at that stage owned the same.
20.2. Any Intellectual Property developed or created after the Effective Date in the course of the carrying out of this Agreement, and generally in the carrying out of the Services in terms of this Agreement, shall vest exclusively in the Customer upon due and proper payment being received by the Supplier.
20.3. The Supplier shall not be entitled to itself, or by engaging others, to use the Intellectual Property developed or created in the execution of this Agreement and the rendering of the Services for any purpose other than for the rendering of the Services in terms of this Agreement.
20.4. It is specifically recorded that the provisions of this clause 21 shall survive the expiration or termination of this Agreement.
- INSURANCE COVERAGE
21.1. The Supplier warrants that it holds, pays for and maintains professional liability insurance covering all intellectual property right infringement(s), damages or injuries that arise from any and all uses and producing of the production and/or Services. The Supplier’s liability will be limited at R10,000,000 (TEN MILLION RAND ONLY).
21.2. The Customer will be responsible for any additional insurance premiums resulting from the need to purchase special coverage not provided by the coverage and pay any and all deductibles associated with the Customers insurance program. The Customer will indemnify, defend and hold harmless the Supplier for any and all claims, demands, actions including defence costs and attorney’s fees for claims arising from the media(s) and the failure of the Customer insurance program to be as broad as the Supplier’s coverage.
22.1. For the duration of this Agreement and for a period of 24 (TWENTY-FOUR) months after the date of completion or cancellation of this Agreement, the Customer shall not, without the prior written consent of the Supplier -
22.1.1. directly or indirectly approach or engage any employee, supplier, prospective supplier, contractor or any related third party that was disclosed by the Supplier to the Customer, with a view of entering into any commercial relationship, whether freelance, contract-based or permanent, with them where the Customer will receive any benefit, including monetary and/or other value;
22.1.2. directly or indirectly recruit or attempt to recruit the Supplier’s employees and/ or suppliers as temporary, full-time contractors or employees.
22.1.3. directly or indirectly bypass, seek to bypass, avoid or circumvent the Supplier from any business opportunity by using any of the Confidential Information.
23.1. Save as expressly permitted hereunder, a Party shall not, without the prior written approval of the other Party, which shall not be unreasonably withheld, assign, cede, delegate, transfer or otherwise dispose of any right or obligation under this Agreement to any other person.
23.2. This Agreement shall constitute the entire agreement between the Parties hereto. It is hereby recorded, for the avoidance of any doubt, that neither Party shall be bound by any other preceding agreement, negotiations, terms or conditions, promises, statements, undertakings, warranties or representations, express or implied made by either of them or any of their respective agents, employees or any other person purporting to act for or on behalf of any of the respective Parties.
23.3. The Parties agree that no variation, amendment or consensual cancellation of this Agreement (including, without limitation, the provisions of this clause) shall be of any force or effect unless reduced to writing and signed by the Parties hereto by hand. For the avoidance of any doubt, the Parties expressly agree that no variation, amendment or consensual cancellation of this Agreement shall arise or become applicable pursuant to any exchange of “data” by means of an “electronic signature”, or an “advanced electronic signature” (as envisaged, defined and otherwise contemplated in the Electronic Communications and Transactions Act 25 of 2002, as amended from time to time “ECTA”), or otherwise by means of electronic and/or written signed correspondence.
23.4. Further to the provisions of clause 24.3, the Parties agree, to the fullest extent permitted by Law, to exclude the application of section 13 of the ECTA in respect of this Agreement. For the purposes of this Agreement, the Parties agree that their name, identifying information or the name and identifying information of the relevant entity which they represent in relation to the particular correspondence, that appears at or near the end of any electronic mail, electronic correspondence or other written correspondence, as the context may require, shall not in any manner be considered or deemed to constitute their signature or electronic signature, for the purpose of concluding any legal acts in relation to this Agreement.
23.5. Any relaxation, indulgence or delay (together “Indulgence”) by either Party in exercising, or any failure by either Party to exercise, any right under this Agreement shall not be construed as a waiver of that right and shall not affect the ability of that Party subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right (whether against that Party or any other person).
23.6. This Agreement may be executed in any number of identical counterparts, all of which when taken together shall constitute one agreement. Any single counterpart or a set of counterparts taken together which, in either case, are executed by the Parties shall constitute a full original of this Agreement for all purposes.
23.7. All notices and any other communications whatsoever (including, without limitation, any approval, consent, demand, query or request) by either Party in terms of this Agreement or relating to it shall be given in writing and sent by registered post, or delivered by hand, or transmitted by electronic mail to the recipient Party at its relevant address set out in the approved quotation.
23.8. Either Party may, by written notice to the other Party, change any of the addresses at which, or the designated person for whose attention those notices or other communications are to be given.
23.9. Any notice or other communication given by any Party to the other Party which –
23.9.1. is sent by registered post to the addressee at its specified address shall be rebuttably presumed to have been received by the addressee on the 7th (SEVENTH) day after the date of posting; or
23.9.2. is delivered by hand during the normal business hours of the addressee at its specified address shall be rebuttably presumed to have been received by the addressee at the time of delivery; or
23.9.3. is transmitted by electronic mail to the addressee at the addressee’s specified electronic mail address shall be rebuttably presumed to have received by the addressee on the date of transmission as reflected on the sender’s electronic mail records.
23.10. The Parties choose their respective physical addresses in clause 24.7 as their respective domicilia citandi et executandi at which all documents relating to any legal proceedings to which they are a party may be served. If that address is changed to another address which is not a physical address in the Republic of South Africa, then the original address shall remain the domicilium citandi et executandi of the relevant Party until it nominates a new physical address within the Republic of South Africa in writing, to be its new domicilium citandi et executandi.
23.11. Each Party shall be responsible for paying its own costs and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
23.12. Nothing in this Agreement shall be construed as creating a partnership or a contract of employment between the Supplier and the Customer. Save as expressly provided for in this Agreement, the Supplier will not be, or deemed to be, an agent of the Customer and the Supplier shall not hold itself out as having authority or power to bind the Customer in any way.
23.13. By ticking the Terms and Conditions box on the online quotation, you hereby agree to all terms and conditions set out herein and such shall be legally binding.