Interpreting These Terms of Engagement
These Terms of Engagement contain a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary contains many of these words and phrases (others are set out in these Terms of Engagement’s body and are designated by terms in quotation marks).
Amendments to these Terms of Engagement
You agree that we may, in our sole discretion, amend these Terms of Engagement at any time, in any way and from time to time. We will publish details of our proposed amendments to these Terms of Engagement in a notice to this effect on our Website. This notice will identify the specific amendments we propose making to these Terms of Engagement and the date on which these proposed amendments will become effective.
You agree that such a notice will be adequate notice of the proposed amendments and that these amendments shall automatically come into effect on the date specified in this notice. You further agree that it is your responsibility to review these Terms of Engagement regularly in the event that we do publish a notice of proposed changes. Your continued use of the Services (except where your continued use of Services is permissible in terms of, for example, specific licenses) will be subject to you agreeing to the amended Terms of Engagement.
Duration and Termination
You agree that these Terms of Engagement bind you with effect from the Commencement Date or when you otherwise use the Services in any way, in which case you understand and agree that your Services use will signify your acceptance of these Terms of Engagement from the moment you first begin to use the Services.
- the Services described in each Estimate in effect at the time of such notice have been fully rendered and the associated fees paid in full; or
- the remaining Estimate/s in effect at the time of such notice have been terminated in accordance with these Terms of Engagement’s provisions and Client has paid any fees due to us as at the date of the Termination Notice in full.
Effect of Termination
In the event these Terms of Engagement are terminated for any reason whatsoever, the following clauses and their subsidiary clauses shall survive termination:
- Intellectual Property
- Prohibition on Interference and Solicitation;
- Governing Law and Jurisdiction; and
- Domicilium and Notices.
We shall, during the currency of these Terms of Engagement, render the Services described in the Estimate. The Estimate, as amended and signed by the Parties’ representatives from time to time, shall specify the Services we agree to render pursuant to these Terms of Engagement, as well as any other responsibilities of the Parties.
Services you require of us shall be recorded in appropriate Estimate. Existing Estimates may be amended or wholly replaced by the Parties, provided that each amended or replacement version of the Estimate shall be effected in writing and be signed by both Parties’ representatives.
In the event the you instruct us to render Services in circumstances that do not, reasonably, allow for Estimate to be prepared, agreed and signed in advance, the Parties agree that we shall confirm your’s instructions in an appropriate Estimate within 2 days of receipt of your’s instructions. You agree that our subsequent Estimate shall bind you and govern your instructions. To the extent the Estimate does not accurately or completely record your instructions, the Parties may negotiate and agree on an amendment to or replacement of the Estimate within 5 days of the Estimate’s delivery to you, failing which the Estimate already issued shall bind the Parties.
Estimate amendments or replacements may, at our discretion, necessitate and result in consequential changes to our fees payable and delivery timeframes for the Services described in the amended or replacement Estimate. We shall notify you of any such changes in writing and Services based on such amended or replacement Estimate shall commence on your acceptance of such changes.
Each of the Estimates (including each version of the Estimates) shall become binding on the Parties upon signature of the Estimate by both Parties and shall be governed by the terms of the main body of these Terms of Engagement.
To the extent a conflict or inconsistency arises between the Estimate, as amended from time to time, and the main body of these Terms of Engagement in respect of the Services’ description, the Estimate’s provisions shall prevail to the extent of the inconsistency.
The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in these Terms of Engagement shall be construed as necessarily obliging us to render all such Services as a single, indivisible service.
You shall, as consideration for the Services we will render in terms of these Terms of Engagement and described in an Estimate, effect payment of our fees to us which are set out in the Estimate. In the event we renders Services to you at your request which are not set out in the Estimate, our fees shall be determined with reference to the Rate Card.
We may require deposits, payable in advance, for the Services and such deposits shall be reflected in the Estimate. We shall not be required to render Services subject to deposits until such time as the deposits are paid in full.
You shall pay the fees, to us, in the amounts and on the terms stated in our interim and final invoices issued to you from time to time. In the event that our invoices do not state our payment terms, invoices are payable on delivery of our Services deliverables (or, where Services are rendered in phases, on delivery of each phase’s deliverables).
You agree to reimburse us for all reasonable disbursements we incur for the purposes of rendering the Services to you. We will obtain written authorisation from you prior to incurring any disbursements which will be additional to the fees as set out in the Estimate.
In the event you fail to timeously effect payment of any amount due to us in terms of these Terms of Engagement, we shall, furthermore, be entitled to suspend the provision of the Services in terms of these Terms of Engagement for any period in which any payment remains outstanding.
We reserve the right to charge a 100% cancellation fee, which shall be specified in the Estimate where appropriate, should you unilaterally terminate these Terms of Engagement in a manner and/or for a reason not expressly provided for in these Terms of Engagement.
We undertake to ensure that the standard of the Services we render to you in terms of these Terms of Engagement shall be in accordance with the Estimate or, in the absence of the Estimate, in accordance with relevant industry standards.
Certain of the Services set out in the Estimate and which we will render in terms of these Terms of Engagement may be Outsourced Services provided that appointing, managing and/or terminating 3rd Party service providers to render Outsourced Services shall not be materially detrimental to our performance of its obligations and/or compromise the service levels agreed to in these Terms of Engagement.
We may, in its discretion, at any time and from time to time –
- sub-contract any of the Services to a new 3rd Party service provider as Outsourced Services and/or;
- change the identity of any 3rd Party service provider rendering Outsourced Services.
Delays and Reinstatement
- We shall be entitled to a fee calculated with reference to resources that have been scheduled according to the Estimate and any additional costs which have been incurred as a result of your delay. This fee shall either be specified in the Estimate or, if it is not specified, shall be a reasonable fee in the circumstances having regard to the Rate Card;
- it may be necessary to amend the Estimate to accommodate the delay and any other factors which we, in our discretion, deem relevant.
If this delay exceeds 20 days, the Services may be suspended pending the resolution of the cause of the delay and, subsequently, reinstated subject to payment of a reinstatement fee specified in the Estimate or in the Rate Card.
3rd Party Content
The Parties acknowledge that the applicable 3rd Party shall retain ownership of all Intellectual Property Rights in the 3rd Party Content and is licensed on terms and conditions determined by the 3rd Party concerned.
Intellectual Property Notices
Except to the extent these Terms of Engagement may permit, neither Party may –
- remove and/or tamper with the copyright, trademark and other proprietary notices contained on or in Intellectual Property licensed to that Party and shall reproduce such notices on all copies of such Intellectual Property;
- save as provided for in these Terms of Engagement, reproduce or modify licensed Intellectual Property; or
- cause or permit any 3rd Party to discover otherwise secured source code of any software constituting either Party’s Intellectual Property except where the Party concerned as permission to do so; or
- rent, lease or otherwise distribute any Intellectual Property or its direct derivatives to any 3rd Parties.
We and you hereby appoint those persons identified in the Ignition Document as their representatives for purposes of these Terms of Engagement. The persons we and you nominate shall liaise with each other in relation to all matters pertaining to the Parties’ performance in terms of these Terms of Engagement.
Any notice or communication, which either Party may provide to the other Party other than by the agency of the respective representatives identified in the Ignition Document, shall be invalid and ineffectual.
The Receiving Party shall not, without the prior written consent of the Disclosing Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of the Disclosing Party) disclose Confidential Information to any person, and/or make use of Confidential Information for any purposes other than in connection with the rendering of the Services.
The Receiving Party may disclose Confidential Information to its officers, employees and sub contractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof.
The Receiving Party shall inform any officer, employee or sub contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any 3rd Party (other than those persons to whom it has already been disclosed in accordance with the terms of these Terms of Engagement), on the basis that the Disclosing Party is responsible for any disclosure, in breach of this clause, by the person to whom it is disclosed.
Notwithstanding the provisions of this clause, either Party shall be entitled in its discretion from time to time to publish and/or to make known to members of the public, including (without limitation) its shareholding, the details of its financial performance, its financial performance forecast and the Party’s strategic planning.
Prohibition on Interference and Solicitation
- solicit with the intention of or actually persuading or causing; and/or
the other Party’s employees, representatives and/or agents, whether by furnishing those employees, representatives and/or agents with information, advice or any other means –
- to terminate employment or any other contractual relationship with the other Party; and/or
- to engage in a Restricted Activity.
The restrictions described in this clause are, notwithstanding that they have been grouped together or linked grammatically, separate and divisible. Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.
Disclaimers and Limitation of Liability
You irrevocably waive any claims you may have against us arising out of, or related to (and agrees not to institute any proceedings in respect of), the Services or these Terms of Engagement more than 1 year after the cause of action relating to such claim or legal action arose.
If you are not, factually or legally, authorised to bind another person as our Client to these Terms of Engagement, you agree that you will be personally liable to us for any amounts due to us in terms of these Terms of Engagement or otherwise as a consequence of using the Services in the event the legal entity concerned refuses or fails to pay any amounts which are due to us and as if you contracted with us for your personal Services use.
Subject to any other provision of these Terms of Engagement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of these Terms of Engagement and unreasonably fail to remedy such breach within (10) ten days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to –
- cancel these Terms of Engagement, provided the breach in question is a material breach going to the root of these Terms of Engagement; or
- claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
- in either event without prejudice to the Aggrieved Party’s right to claim damages.
Either Party shall be entitled to summarily terminate these Terms of Engagement in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Terms of Engagement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Should any dispute concerning these Terms of Engagement arise, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other, in writing, to a meeting which the invited Party shall attend and both Parties shall sincerely endeavour to resolve the dispute within 5 (five) days from date of the written invitation.
Governing Law and Jurisdiction
These Terms of Engagement shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the South Gauteng High Court, Johannesburg.
An Interrupted Party shall be relieved of its obligations in terms of these Terms of Engagement during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Party may suffer as a result.
In the event that an Interruption Event exceeds –
- 20 consecutive days and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, the Parties agree to meet and negotiate the suspension, termination or restructuring of these Terms of Engagement; or
- 3 consecutive months and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, either Party may terminate these Terms of Engagement and shall only remain liable for performance under these Terms of Engagement which fell due immediately prior to the Interruption Event.
Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Terms of Engagement except with the prior written consent of the other Parties.
If any clause or term of these Terms of Engagement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of these Terms of Engagement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these Terms of Engagement.
Domicilium and Notices
The Parties choose domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Terms of Engagement, their address and contact details set out in the Ignition Document in respect of each Party’s representative.
Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
- on the same day, if delivered by hand;
- on the same day of transmission if sent by telefax with receipt received confirming completion of transmission;
- on the third day after dispatch, if sent by prepaid courier.
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.
This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
No indulgence, which either Party (“the Grantor”) may grant the other (“the Grantee(s)”), shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of these Terms of Engagement.
If these Terms of Engagement refer to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Terms of Engagement will also be applicable to and binding on that party’s liquidator or trustee, as the case may be.
Unless these Terms of Engagement indicate to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
Where in these Terms of Engagement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
Where these Terms of Engagement specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any day. Any reference to time shall be based upon South African Standard Time;
The words and phrases in the Glossary bear the meanings assigned to them and related expressions bear corresponding meanings.
“Cantaloupe”, “us”, “we” and “our” means or are references to Cantaloupe Web Design and Email Marketing CC , a close corporation duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 2007/175815/23;
- you, personally, if you are contracting with us in your personal capacity; or
- a legal entity such as a company or close corporation you represent, in which case you –
- you signify your approval of and assent to an Estimate or the Rate Card; or
- we first render Services to you.
- is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party; or
- is provided or disclosed in confidence, and which the Disclosing Party or any person acting on behalf of the Disclosing Party may disclose or provide to the Receiving Party; or
- may come to the knowledge of the Receiving Party by whatsoever means.
The Disclosing Party’s Confidential Information may include (and is not limited to) the following information, regardless of whether the information is marked as being “confidential”, “restricted” or “proprietary” (or any similar designation) –
- information relating to the Disclosing Party’s business activities, business relationships, products, services, processes, data, and staff, including agreements to which the Disclosing Party is a party;
- the Disclosing Party’s technical, scientific, commercial, financial and market information, methodologies, formulae and trade secrets;
- the Disclosing Party’s architectural information, demonstrations, plans, designs, drawings, processes, process maps, functional and technical requirements and specifications, and related data;
- Intellectual Property that is proprietary to the Disclosing Party or to a 3rd Party, including but not limited to 3rd Party products and related customer data; and
- where you are the Disclosing Party, demographic and other data relating to any of Client’s staff or potential staff, which data you may disclose to us in order for us to render the Services to you in terms of these Terms of Engagement.
- Confidential Information excludes information or data which –
- is lawfully in the public domain at the time it is disclosed to the Receiving Party; or
- subsequently lawfully becomes part of the public domain by publication or otherwise; or
- is or becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled, without any restriction on disclosure, to disclose such information to the Receiving Party; or
- is disclosed pursuant to a requirement or request by operation of law, regulation or court order but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed;
provided that –
- the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions; and
- the disclosed information will not be deemed to fall within these exclusions merely because the information forms part of more general information in the public domain or in a Party’s possession; and
- the determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images);
“Content License” means a perpetual, irrevocable, worldwide and royalty-free license granted to the Client to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute the subject matter of the license for the limited purpose for which the Services are rendered;
“Intellectual Property” means the expression and/or representation of an intellectual and/or creative process and includes, but not be limited to, any text, images, data, multimedia, ideas, source code, concepts, know-how, data processing techniques, copyrights, trademarks, logos, patents, designs, inventions and includes Content –
- which we create, invent and/or develop at your’s specific instance and request of pursuant to an Estimate (“Bespoke Content”); and
- which you developed independently and/or own (“your Content”); and/or
- which we developed independently and/or own (“our Content”); and/or
- which any 3rd Party developed and own (“3rd Party Content”);
“Intellectual Property Rights” means rights in Intellectual Property;
“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Losses” means all Losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
- to be associated, engaged, interested or concerned with a Restricted 3rd Party in a Restricted Capacity;
- to render Prescribed Services to the Client in a Restricted Capacity;
- to engage with, solicit with the purpose of transacting with, or competing with a Party’s customers;
- directly or indirectly interfere with a Party’s contractual relationships with the Party’s customers, whether or not for the benefit of a Restricted 3rd Party;
- disclosing or making use of a Party’s Confidential Information in breach of these Terms of Engagement; or
- in any manner competing unlawfully with a Party;
“Restricted Capacity” means as a principal, agent, partner, representative, shareholder, consultant, advisor, employer, employee, service provider or in any other like capacity, and whether alone or jointly with or as agent for any Restricted 3rd Party, either directly or indirectly;