GENERAL TERMS AND CONDITIONS
entered into between
BANTER DIGITAL AND THE CLIENT
WHEREBY IT IS AGREED AS FOLLOWS:
PART A: INTERPRETATION AND DEFINITIONS; INTRODUCTION; ORDERS; SERVICE CHANGE ORDERS; COMPLETION; DELIVERY
1. 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 Banter Digital 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;
1.2.2. “Backward/Downward Compatible” means the ability of the Website to be fully functional for older and out dated products and technology;
1.2.3. “Banter Digital” 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;
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 Banter Digital 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 –
126.96.36.199. 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;
188.8.131.52. information relating to the knowledge, know-how, expertise, trade secrets or business activities of a Party;
184.108.40.206. information relating to a Party which is not freely available to a competitor of that Party; and
220.127.116.11. 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:
1.2.9. “Domain Name” means any domain name reserved / procured by Banter Media for the Client pursuant to the rendering of Domain Name Services hereunder;
1.2.10. “Domain Name, Hosting and/or Email Services” means a type of service in terms of which:
18.104.22.168. the Website is made accessible to users via the World Wide Web, as well as providing Internet connectivity to a Client, typically in a data centre; and/or
22.214.171.124. emails which are registered to the hosting account of the Client are sent and received to and from such account; and/or
126.96.36.199. the Domain Name is registered and/or renewed, as the case may be;
1.2.11. “Existing Banter Digital IP” means any intellectual property created and/or developed by Banter Digital prior to the entry into of this Agreement, alternatively licensed to Banter Digital, and used by Banter Digital 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 Banter Digital in rendering the Services hereunder;
1.2.13. “Graphic Design Services” means the artistic design, setup, illustration, typography, html mark-up and layout of various items, whether in print format or digital format, in respect of advertising, marketing or promotional material, including without limitation, printing, email advertising, and the creation of branded promotional items;
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 Banter Digital IP” means such of the Existing Banter Digital 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 Banter Digital for the performance of the Services;
1.2.18. “Parties” means Banter Digital 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 Banter Digital or any third party appointed by Banter Digital 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 Banter Digital 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 Banter Digital 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 Banter Digital, as set out in the Quote and/or Invoice;
1.2.25. “Website” means the website created and developed by Banter Digital for the Client hereunder;
1.2.26. “Website Development Services” means the creation and development of a Website, by Banter Digital for and on behalf of the Client;
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 Banter Digital to perform the Services, on the terms and conditions contained in this Agreement.
2.2. Banter Digital 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 Banter Digital 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 Banter Digital to perform the Services in accordance with the Specifications.
3.2. Orders shall constitute irrevocable offers by the Client to engage Banter Digital to perform the Services at the usual prices of Banter Digital.
3.3. All Orders will be submitted to Banter Digital for processing and will be subject to acceptance by Banter Digital 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.
4. SERVICE CHANGE ORDERS
4.1. From time to time, but prior to Completion, Banter Digital 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 Banter Digital, describing the proposal. Banter Digital 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 Banter Digital 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 Banter Digital 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 Banter Digital 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, Banter Digital 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 Banter Digital 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.
6. DELIVERY OF EXISTING CLIENT IP TO BANTER DIGITAL
6.1. The Client shall, upon receipt of an Invoice, deliver to Banter Digital all documents and other media embodying the Existing Client IP which Banter Digital may require in order to perform the Services hereunder.
6.2. All items delivered to Banter Media as aforesaid must be collected from Banter Digital, at the Client’s own cost and expense, upon Completion.
PART B: SPECIAL TERMS AND CONDITIONS APPLICABLE TO SERVICES
7. WEBSITE DEVELOPMENT SERVICES
7.1. Where the Services to be rendered by Banter Digital to the Client are Website Development Services, then the provisions of this clause 7 shall be applicable thereto, in addition to the provisions of Part A and Part C of this Agreement.
7.2. Subject to clause 15.1 below, Banter Digital shall use its reasonable endeavours to ensure:
7.2.1. that the Website is error-free and the use thereof is uninterrupted;
7.2.2. that the Website can be viewed by the majority of persons who visit it;
7.2.3. that the Website is able to function with the latest releases of the main web browsers available in the market at any given time, including without limitation, Internet Explorer, Chrome, Firefox and Safari;
7.2.4. that it informs the Client of any updates which are required to be made to the Website by law or by any third party;
7.2.5. that the Website is Backward/Downward Compatible; and
7.2.6. the search position or ranking of the Website, and shall include search engine optimisation in the form of meta tags, structure and basic content recommendations in the Website, however, Banter Digital does not guarantee Google Rankings in respect of the Website.
7.3. The Client hereby acknowledges and agrees that subsequent to Completion of the Website, any (i) updated versions of the main browsers available in the market at any given time, including without limitation, Internet Explorer, Chrome, Firefox and Safari; (ii) domain name setup changes; and/or (iii) hosting setup changes, may affect the functionality and/or display of the Website and this will be costed accordingly.
7.4. The Client understands and agrees that where Banter Media furnishes it with a Quote for Website Development Services, such Quote does not include Domain Name, Hosting and/or Email Services and Monthly Management and/or Maintenance unless otherwise specified in the Quote.
7.5. The Client shall, at its own cost, ensure that the Website is regularly backed up and maintained in terms of software updates and security after the installation and setup provided by Banter Digital in the initial web build. The client may either complete these updates themselves (at their own risk), or they may take up one of the Monthly Management packages which are available upon request. Circumstances allowing, Banter Digital may provide some of these services free of charge as they have done so previously, however it is at Banter Digital’s discretion and reserve the right to alter these service charges without notification.
7.6. In the event that any stock photography is used on the Website, the Client agrees to comply with the artists/supplier’s terms and conditions in respect of such photography, and shall not do anything to infringe the rights, including the Intellectual Property Rights, of such artist/supplier in and to such photography.
7.7. In the event that the Client wishes to commission a photographer to create photographs for use on the Website, then the Client shall:
7.7.1. ensure that (i) it is the owner of any and all rights, including Intellectual Property Rights, in and to such photographs; or (ii) the photographer is aware of, and consents in writing to the use of, such photographs on the Website;
7.7.2. procure that the photographer indemnifies and holds Banter Digital harmless from and against any loss, claim, action, damage, or expense suffered or sustained by the photographer pursuant to or arising out of the use of the photographs on the Website; and
7.7.3. in any event, obtain the written waiver of any moral rights which the photographer may have in and to such photographs.
7.8. Subject to clause 7.9, where the Client appoints a third party to provide Domain Name, Hosting and/or Email Services to it, then the Client shall, upon request by Banter Digital, promptly furnish Banter Digital with its File Transfer Protocol (FTP) and database details, as well as any other details in respect of its domain name and hosting account which Banter Digital may require in order to upload the Website.
7.9. In the event that Banter Digital is not satisfied, for any reason whatsoever, with the identity of the third party service provider referred to in clause 7.8, then Banter Digital shall be entitled to refuse to perform any Services to the Client hereunder, in addition to any rights available to Banter Digital hereunder.
7.10. The Client understands that Banter Digital does not perform any image manipulation in respect of any photographs which appear on the Website, irrespective of whether the photographs are supplied by the Client or are stock photography.
7.11. The Client shall not be entitled to:
7.11.1. use the design of the Website created by Banter Digital hereunder for any other website;
7.11.2. resell or distribute the whole or any part of the completed files contained in the Website, without the prior written consent of Banter Digital, which consent Banter Digital shall be entitled to withhold in its sole and absolute discretion.
7.12. Banter Digital endeavours to complete the Website Development Services within a period of 2 (two) months from the date of commencement thereof. Accordingly, the Client shall ensure that all documents and other media which it is required to deliver to Banter Digital in terms of clause 6.1 are delivered timeously in order to ensure that the provisions of this clause 7.12 are adhered to.
7.13. The Client agrees to allow Banter Digital to place an outbound link and artistic credit reference in the copyright of the footer to increase SEO Rankings for both parties.
8. DOMAIN NAME, HOSTING AND EMAIL SERVICES
8.1. Where the Client requires Domain Name, Hosting and/or Email Services, then the provisions of this clause 8 shall be applicable thereto, in addition to the provisions of Part A and Part C of this Agreement.
8.2. The Client shall ensure that all annual renewal fees in respect of any Domain Name, Hosting and/or Email Services are paid to Banter Digital at least 2 (two) months prior to the due date therefor.
9. GRAPHIC DESIGN SERVICES
9.1. Where the Services to be rendered by Banter Digital to the Client are Graphic Design Services, then the provisions of this clause 9 shall be applicable thereto, in addition to the provisions of Part A and Part C of this Agreement.
9.2. The Client undertakes to furnish Banter Digital with:
9.2.1. high quality images and logos;
9.2.2. Pantone and CMYK values, where the Client requires specific colours;
9.2.3. the contact details of the Client’s printer (where the Client has a printer), in order to enable Banter Digital to render Graphic Design Services to the Client.
9.3. The Client acknowledges and agrees that (i) screen colours and digital proofs can vary from litho printing, and that to ensure colour and print quality, it shall be the responsibility of the Client to request a colour proof from its printer; (ii) the colour of any item which is produced as a result of the Graphic Design Services may vary from the on-screen colour, or the colour of the item in previous orders thereof; and (iii) there shall be no reprints at the cost of Banter Digital.
9.4. Banter Digital will not release any high resolution final artwork to the Client, whether in digital or printed format, until all fees owing to Banter Media hereunder have been paid by the Client in full.
PART C: GENERAL
10. VESTING OF INTELLECTUAL PROPERTY RIGHTS
10.1. Banter Digital 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 Banter Digital 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 Banter Digital, 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 Banter Digital; 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 Banter Digital IP vests in Banter Digital, alternatively is licensed to Banter Digital, and the Client shall not acquire any rights (proprietary or otherwise) in and to the Existing Banter Digital IP, save as specifically set out herein;
10.3.2. the Project IP vests in Banter Digital or the third party service provider appointed by Banter Digital in accordance with this Agreement, subject to clauses 10.4.2 and 10.5.
10.4. Banter Digital 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 Banter Digital, to use:
10.4.1. the Non-severable Existing Banter Digital 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 Banter Digital 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 Banter Digital IP for commercial gain; (ii) cede or assign any or all of its rights in and to the Non-severable Existing Banter Digital IP to any third party; or (iii) grant any license to use the Non-severable Existing Banter Digital 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 Banter Digital by the Client hereunder, then Banter Digital 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 Banter Digital, 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 Banter Digital, 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) Banter Digital consents thereto in advance and in writing; and (ii) payment in full has been made to Banter Digital in accordance with the Quote relating to such Pitch/Campaign Idea.
10.8. Rocketseed database management is covered under the description 1.2.14. Banter Digital protects the rights of its clients in respect of their databases and data collections. No database managed or collected through Rocketseed nor any other database management system will be used by Banter Digital for its own marketing purposes, nor sold to 3rd parties.
11. CREDIT FACILITIES
11.1. The Client understands that Banter Digital’s decision to grant credit facilities to the Client (if applicable) is at the sole discretion of Banter Digital.
11.2. Banter Digital 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 Banter Digital’s sole discretion.
11.3. Despite the fact that Banter Digital may grant the Client a credit limit or a credit facility up to a certain amount, Banter Digital 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 Banter Digital.
12. FEES AND PAYMENT
12.1. The Client shall, when placing an Order with Banter Digital in terms of clause 3.1, receive a Quote from Banter Digital. 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 Banter Digital.
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 Banter Digital.
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 Banter Digital. Thereafter, Banter Digital shall issue an Invoice to the Client, setting out:
12.4.1. a securing fee, to be paid by the Client to Banter Digital 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 Banter Digital, which shall be paid by the Client to Banter Digital by no later than 2 (days) from date of Completion.
12.5. The Client specifically acknowledges and agrees that:
12.5.1. Banter Digital 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 Banter Digital 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 Banter Digital has received proof of payment thereof.
12.6. The Client shall pay any and all amounts owed by it to Banter Digital in terms of this Agreement, by:
12.6.1. electronic transfer into a bank account nominated by Banter Digital from time to time, in which case the Client shall send Banter Digital 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 Banter Digital’s website shall apply; or
12.6.3. cash, directly to Banter Digital, in which case the Client shall be required to pay Banter Digital an extra surcharge in the amount of 5% (five percent) of the cash amount paid to Banter Digital.
12.7. Any amount falling due for payment by the Client to Banter Digital 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 Banter Digital 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.
Banter Digital shall be granted a credit in all Project IP, and the Client hereby consents thereto.
14. 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 Banter Media harmless from and against any loss, claim, action, damage, or expense suffered or sustained by Banter Digital 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 Banter Digital accordingly.
15. LIMITATION OF LIABILITY
15.1. Notwithstanding anything to the contrary contained in this Agreement, but subject at all times to applicable laws, Banter Digital shall not be liable for any loss or damage as a result of:
15.1.1. where the Services are Website Development Services:
188.8.131.52. alterations, modifications or improvements to the Website not made by Banter Digital;
184.108.40.206. the inability of the Website to (i) be viewed by any person; (ii) function with the latest releases of any of the main web browsers, including without limitation, Internet Explorer, Chrome, Firefox and/or Safari, including as a result of any updated software versions thereto subsequent to Completion of the Website; and/or (iii) be Backward/Downward Compatible;
220.127.116.11. the search position or ranking of the Website;
18.104.22.168. the failure of the Client to back-up the Website regularly, or the inability of any back-up to function properly;
22.214.171.124. the failure of the Website to comply with any updates required by law or by any third party;
126.96.36.199. the failure of the Client to provide Banter Digital with the items contemplated in clause 7.8 above;
15.1.2. where the Services are Domain Name, Hosting and/or Email Services:
188.8.131.52. any loss or damage which arises as a result of hosting downtime, server downtime or any late payment by the Client;
184.108.40.206. any problem in respect of the functionality and/or display of the Website due to changes to the Domain Name setups or Hosting setups subsequent to Completion of the Domain Name and Hosting;
220.127.116.11. the Client failing to comply with clause 8.2;
15.1.3. where the Services are Graphic Design Services, any defect or variations in respect of the colour and/or print quality of any printing, irrespective of whether the printer was appointed by Banter Digital or the Client;
15.1.4. the use of any Non-severable Existing Banter Digital 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 Banter Digital 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 Banter Digital 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 Banter Digital 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 Banter Digital IP.
15.3. Subject to clauses 15.1 and 15.2, and subject to applicable laws, Banter Digital’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 Banter Digital of its obligations and duties under this Agreement) shall be limited to the total amount payable by the Client to Banter Digital in terms of the Invoice in relation to the incident which gave rise to such loss or damages.
16. DISCLOSURE OF PERSONAL INFORMATION
16.1. The Client will be required to provide Banter Digital 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 Banter Digital when placing any Order is to be used by Banter Digital 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 Banter Digital offers by tailoring them to the Client’s needs. The Client may at any stage opt-out from receiving future promotional information from Banter Digital;
16.2.4. providing certain third party service providers, sub-contractors and suppliers with such information (i) in order to enable Banter Digital 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 Banter Digital 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 Banter Digital will be held securely and in accordance with the provisions of applicable laws, and Banter Digital 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 Banter Digital 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. Banter Digital shall be entitled to immediately terminate this Agreement if:
17.1.1. in rendering Website Development Services, Banter Digital discovers that the website which the Client instructs Banter Digital to create and/or develop is unlawful or inappropriate, has a virus or hostile program, constitutes harassment, racism, violence, obscenity, harmful intent, spamming, contains adult content, commits a criminal offence, infringes privacy, infringes the Intellectual Property Rights of any party, or in any other way may be questionable, as determined by Banter Digital, in its sole and absolute discretion; or
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 Banter Digital, provided that if Banter Digital has already commenced the provision of any Services, then the Client shall immediately pay Banter Digital 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 Banter Digital requiring it to do so, provided that if the breach can reasonably be remedied within a shorter period, Banter Digital 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 Banter Digital 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 Banter Digital shall be entitled, in addition to all other remedies at law, to cancel this Agreement or claim damages against the Client.
19. 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 Banter Digital at law or in terms of this Agreement:
19.1.1. the Client shall immediately pay to Banter Digital any amount owing to Banter Digital;
19.1.2. the Client shall not be entitled to any refund in respect of any amount paid to Banter Digital hereunder;
19.1.3. where the Services are Website Development Services, and the Agreement is cancelled due to the Client’s failure to pay any amount owing to Banter Digital timeously, then Banter Digital shall be entitled to remove the Website from the Internet until such time as payment is made to Banter Digital;
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 Banter Digital 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.
21. CESSION, ASSIGNMENT AND SUB-CONTRACTING
Banter Digital 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 Banter Digital.
22. 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.
23. 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.
24. 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.
26. 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. Banter Digital:
Physical: 43A 1st Floor, Boskruin Village Shopping Center, Cnr. Hawken and Pres.Foucher Drive, Boskruin, Randburg, Gauteng;
Postal: PO Box 618, Randpark Ridge, 2156;
Telephone: 011 478 7855
Email: [email protected]
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.
27. NO PARTNERSHIP
Nothing in this Agreement shall be deemed to create a joint venture, partnership or principal and agent relationship between Banter Digital and the Client.
28. 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.
29. 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.