Terms and Conditions

 

DIGITAL MARKETING TERMS AND CONDITIONS

BY ENGAGING WITH FENIX AND/OR BY ACCEPTANCE OF A QUOTE, THE CLIENT AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF SOMEONE ELSE, OR ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH PERSON OR ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “THE CLIENT” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH OTHER PERSON OR ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF THE CLIENT OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU AND/OR THE CLIENT MAY NOT USE THE PRODUCTS OR SERVICES OF FENIX.

 

1. DEFINITIONS AND INTERPRETATION
1.1 For purposes of the Agreement, the following terms shall have the following meanings: –
1.1.1 “Affiliate” means, with regard to either Party, any legal entity which that Party Controls, which Controls that Party, or which is under common control with that Party, and which concludes an Order pursuant to this Master Agreement;
1.1.2 “AFSA” means the Arbitration Foundation of Southern Africa, or its successors in title;
1.1.3 “Agreement” means this master agreement which consists of: –
1.1.3.1 this master Agreement;
1.1.3.2 the Service Annexures; and
1.1.3.3 any Orders concluded pursuant to this Agreement, and includes any schedules, annexures, exhibits and attachments thereto;
1.1.4 “Business Day” means any day other than a Saturday, Sunday, or gazetted public holiday in the Republic of South Africa;
1.1.5 “Business Hours” means the hours from 08h30 to 16h30 (South African time) on Business Days;
1.1.6 “Change Control Procedure” means the change control procedure referred to in clause 8 below;
1.1.7 “Contract Year” means, in respect of an Order, each successive 12 (twelve) calendar month period during the term of the Order, as measured from the Effective Date of such Order;
1.1.8 “CPI” means the average year-on-year percentage change in the Consumer Price Index for all urban areas as published in the Statistical News Release compiled by Statistics South Africa (or its successor in title) for the preceding 12 (twelve) months;
1.1.9 “Client” means the person and/or entity engaging with Fenix in respect of the Services, and whose registered address will be used for the purposes of clause 27;
1.1.10 “Client Data” means Client’s data (including personal information about an identifiable individual): –
1.1.10.1 provided to Fenix either by Client or by any third party on Client’s behalf; or
1.1.10.2 data specific to the Services which Fenix generates, processes, or supplies to Client in the performance of the Services, but excludes any aggregated, anonymised data that is created by Fenix for its own internal purposes or data which is proprietary or confidential to Fenix or Fenix’s other Clients or Third-Party Contractors;
1.1.11 “Client IP” means any and all intellectual property of the Client including Client Data, Client Material, client policies, copyright, trademarks, trade names, trade secrets, confidential information, know-how, methodologies, patents, designs, goodwill and reputation, trade and business names, domain names, and all rights in and to any of the aforementioned, and all rights or forms of protection having equivalent or similar effect to any of the aforementioned, which may subsist in any country in the world;
1.1.12 “Client Material” means all materials provided or made available by or on behalf of Client to Fenix for purposes of the Agreement and includes Client Data;
1.1.13 “Content” means any content that Fenix creates for the Client;
1.1.14 “Derivative Works” means all Intellectual Property owned by Fenix including any improvements, enhancements, modifications, or knowledge developed while performing the Services and producing the output/ deliverables for the Client and in any working papers and presentations compiled in connection with the Services but shall not extend to any Client Personal Information reflected in such working papers;
1.1.15 “Deliverable/s” means a workstream, a campaign, content production, or a project, any specific and agreed outputs, or part thereof, of the Services as set out in the relevant Order;
1.1.16 “Effective Date” means: –
1.1.16.1 in respect of this Master Agreement, the effective date stipulated on the cover sheet of this Master Agreement, in the absence of which it shall be the date this Master Agreement is accepted by Fenix; and
1.1.16.2 in respect of each Order, the effective date stipulated in each Order, in the absence of which it shall be the date the Order is accepted by Fenix;
1.1.17 “Fees” means the fees and charges to be paid by Client to Fenix in respect of Services provided by Fenix as recorded in the relevant Orders;
1.1.18 “Fenix” means Fenix Marketing Solutions (Pty) Limited, registration number 2018/116201/07, with its registered address at 13 Camdeboo Rd, Fourways, Sandton, 2055, South Africa;
1.1.19 “Fenix IP” means any and all intellectual property that Fenix has created, acquired or otherwise has rights in and may, in connection with the performance of Fenix’s obligations under the Agreement, employ, provide, modify, create or otherwise acquire rights in and includes all concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, function, process, system and data models, templates, the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, its Google Dashboard;
1.1.20 “Fixed Term” means a fixed period of six calendar months applicable to website maintenance Services from the Services Commencement Date, and during which period neither Party shall be entitled to terminate such Services other than in accordance with clauses 24.3 and 24.4;
1.1.21 “Initial Term” means a fixed period of six calendar months from the Services Commencement Date, and during which period neither Party shall be entitled to terminate such Services other than in accordance with clauses 24.3 and 24.4;
1.1.22 “Order” means a written and Signed scope of work, proposal or quote together with any relevant Service Annexure and appendices thereto entered into between Fenix and the Client in accordance with the terms of this Agreement. Any change to an Order to apply to any such renewal must be agreed to in Writing and Signed by both Parties. For the purposes of this clause in “writing” shall be complied with only if such notice is in a written paper-based form and Signed by both Parties, which shall be read to incorporate the terms and conditions of this Agreement. An Order may specify, inter alia: –
1.1.22.1 the contact persons’ and Project Managers’ details;
1.1.22.2 the description and objectives of the project and/or Service to be rendered and any Deliverables;
1.1.22.3 the scope and description of the Services to be rendered by Fenix (including the approach and activities with associated target dates) and any agreed performance measurement standards required;
1.1.22.4 a description of the Fees payable to the Service Provider,
1.1.22.5 the Commencement Date and Term thereof,
1.1.22.6 the termination or expiration provisions; and
1.1.22.7 any other content which the Parties agree is relevant to the specific Order being executed, including any legal terms specific to that Order or terms varying the terms of this Agreement.
1.1.23 “Parties” means Fenix and Client collectively and “Party” means either one of them individually, as the context requires;
1.1.24 “Personnel” means any director, employee, agent, consultant, contractor, or other representative of the Parties;
1.1.25 “Project Manager” means either one of the persons appointed under clause 5;
1.1.26 “Revert” means consolidated changes to a Deliverable delivered under an Order by Fenix to the Client, in line with the specifications set out in the Order;
1.1.27 “Scope Change Document” means the scope change document referred to in clause 8;
1.1.28 “Services” means any and all services, including but not limited to, the digital media, marketing and related services, actions, deliverables, and obligations rendered or undertaken by Fenix for the benefit of the Client;
1.1.29 “Service Annexure/s” means the terms, detail and description of the specific Services provided by Fenix in respect of, inter alia, social media; digital marketing; website hosting; website development; website maintenance services; paid advertising services; search engine optimisation; video services; content writing services, graphic design services; media and public relations campaigns, whatsapp services;
1.1.30 “Service Levels” means the levels according to which each Service is to be provided, as set out in the corresponding Order and the relevant Service Annexure;
1.1.31 “Signed” or “Signature” means a hand-written signature or advanced electronic signature as defined by Electronic Communications and Transactions Act 25 of 2002 (ECTA), excluding any type-written signature or signature appended by electronic communication, and “Signed”, “Signing” and “Signature” shall have a corresponding meaning. “Electronic communication” has the meaning assigned to it in the Electronic Communications and Transactions Act 25 of 2002;
1.1.32 “Site” means the physical site referred to in an Order, at which Services are to be provided by Fenix for use by Client under the Order;
1.1.33 “Software” means any of the proprietary software applications developed and/or licensed by Fenix (as the case may be) and any successor software applications, as amended, updated, and enhanced from time to time, including the current version from time to time of Fenix’s proprietary platform, used by Fenix in delivering the Services;
1.1.34 “Third Party Contracts” means any and all contracts in force as at the Effective Date between Client and Third-Party Contractors, referred to in the Order;
1.1.35 “Third Party Contractor” means, in respect of any goods and services, the contractor, supplier, vendor or licensor (as the case may be) of the goods or services which is not a party to the Agreement;
1.1.36 “Third Party Costs” means payments to third parties for costs associated with SEO, google ad words, hosting, media costs, HTML coding, illustration, execution (including printing and delivery), physical production, data build and enrichment, prototype, samples, activations, social media platform costs and digital production;
1.1.37 “Time and Material Rates” means Fenix’s standard time and materials fees and charges applicable from time to time; and
1.1.38 “Writing” means a written document and includes e-mail, and “Written” shall have a corresponding meaning.
1.2 Headings and sub-headings are inserted for information purposes only and shall not be used in the interpretation of the Agreement.
1.3 Whenever a term is followed by the word “including” or “include” or “excluding” or “exclude” and specific examples, the examples shall not limit the ambit of the term.
1.4 References to any enactment shall be deemed to include references to the enactment as re-enacted, amended or extended from time to time.
1.5 References to persons shall include natural and juristic persons and references to either Party shall include the Party’s successors or permitted assigns.
1.6 Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included, unless the last calendar day falls on a calendar day that is not a Business Day, in which event the last calendar day shall be the next Business Day.
1.7 Expressions defined in this Master Agreement shall bear the same meanings in Orders, unless otherwise stated therein. Where any term is defined within the context of any particular clause in the 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 the Agreement, notwithstanding that the term has not been defined in clause 1 of this Agreement.
1.8 The rule of construction that an agreement shall be interpreted against the Party responsible for its drafting or preparation shall not apply.

 

2. STATUS AND PRECEDENCE
2.1 This Agreement is intended to operate as a master agreement under which the Parties may from time to time agree for the provision of Services by Fenix. Such Services and any and all terms and conditions applicable thereto (in addition to the terms and conditions contained in this Master Agreement) shall be set out in an Order. Orders shall, where possible, be executed before their implementation commences.
2.2 All work that is rendered by Fenix requires an official purchase order or written approval from client. The purchase order/ written approval will be issued based on the acceptance of an official quote submitted by Fenix. Fenix may not proceed with any services related to the quote without an official purchase order number / written approval.
2.3 Each Order shall be subject to this Master Agreement. Subject to the foregoing, insofar as any term and condition in an Order, conflicts with this Master Agreement in respect of: –
2.3.1 the description of Services, the terms and conditions in the Order shall prevail; or
2.3.2 any other matter, this Master Agreement shall prevail.
2.4 Save where expressly provided to the contrary, the terms and conditions of one Order shall not apply to any other Order.
2.5 Insofar as the meaning of any term or condition in a schedule or annexure to an Order or any other document referred to in an Order, excluding this Master Agreement, conflicts with the meaning of the body of the relevant Order, the meaning of the terms and conditions in the body of the relevant Order shall prevail unless expressly stated otherwise.

 

3. DURATION AND TERMINATION OF THIS MASTER AGREEMENT
3.1 This Master Agreement shall commence on its Effective Date and shall remain in force indefinitely unless terminated as provided for herein.
3.2 This Agreement will come into force upon its effective date for an initial period of six (6) months (the “Initial Term”). Following the Initial Term, this Agreement shall auto-renew by consecutive six (6) month period (each period called a “Renewal Term”), unless either party provides the other with a written notification of non-renewal at least sixty (60) days prior to the expiration of the then current term. The Initial Term, together with any Renewal Term, is referred to as the “Term” of this Agreement.
3.3 Either of the Parties may terminate this Agreement in accordance with the provisions of clause 24. The effect of terminating this Master Agreement will be to terminate the ability of either Party to enter into subsequent Orders. Termination of this Master Agreement will not, by itself, result in the termination of any Orders previously entered into (or extensions of the same). The terms of this Master Agreement will continue in effect for the purposes of such Orders unless and until each Order itself is terminated or expires.
3.4 Each Order shall, irrespective of the Effective Date, commences on the Commencement Date stipulated on the relevant Order and shall, subject to clause 24, endure for the term stipulated therein.
3.5 Each Order may be renewed, on the same terms and conditions, subject to annual price escalation, by agreement in Writing between the Parties. Any change to the Order to apply to any such renewal must be agreed to in Writing and Signed by both Parties.

 

4. NATURE OF RELATIONSHIP
4.1 The relationship between the Parties shall be that of independent contractors and nothing in this Agreement shall be interpreted as constituting a partnership, employment, or an agency relationship between the Parties or between either Party and any of the other Party’s Personnel.
4.2 Unless otherwise agreed in writing, nothing in the Agreement shall be construed as constituting a temporary employment service as contemplated in section 198 of the Labour Relations Act, 1995.
4.3 Nothing in the Agreement shall be construed as creating a partnership between the Parties and neither Party shall have any authority to incur any liability on behalf of the other or to pledge the credit of the other Party.

 

5. RELATIONSHIP MANAGEMENT
5.1 The Parties shall each nominate a Project Manager who shall be accessible, contactable, and authorised to resolve issues and assigned with the duty to ensure that the obligations in terms of the Master Agreement are properly fulfilled.
5.2 A Party may change its Project Manager at any time by notifying the other Party thereof in writing.
5.3 The Project Managers will operate as the main interface between Fenix and Client and will be responsible for all project performance, reporting, pricing negotiation and resolution of all related issues. The Project Managers’ responsibilities include the management and coordination of the Services and the discussion and management of any changes.

 

6. GOOD FAITH
6.1 The Parties undertake in favour of each other to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary or incidental to give or be conducive to the giving of effect to the terms, conditions and import of this Agreement.
6.2 The Parties shall at all times during the continuance of this Agreement observe the principles of good faith towards one another in the performance of their obligations in terms of this Agreement. This implies, without limiting the generality of the foregoing, that they: –
6.2.1 shall at all times during the term of this Agreement act reasonably, honestly and in good faith;
6.2.2 shall perform their obligations arising from this Agreement diligently and with reasonable care, skill, and expertise; and
6.2.3 shall make full disclosure to each other of any matter that may affect the execution of this Agreement.

 

7. SERVICES AND PERFORMANCE MANAGEMENT
7.1 Fenix shall perform the Services as set out in the relevant Orders and Service Annexures from time to time.
7.2 In the discharge of its duties, Fenix shall comply with the Deliverables recorded in the relevant Order.
7.3 Nothing in this clause 7 shall affect Fenix’s right to exercise its own judgement and to utilise its skill as it considers most appropriate in order to achieve compliance with the said Deliverables or otherwise to comply with its obligations under this Agreement.
7.4 Fenix shall render the Services in a professional manner with due care, skill, and diligence. Without detracting from the generality of the aforementioned obligation, Fenix shall use all reasonable efforts to:
7.4.1 meet the performance management standards/acceptance criteria set out in the relevant Order’s, if applicable;
7.4.2 use qualified Personnel with suitable training, education, experience, and skill to perform the Services; and
7.4.3 use best commercial endeavours to achieve any agreed targets or deadlines by the agreed dates set by the Parties.
7.5 If a Deliverable runs over the allocated time as set out in the Order due to Client Delays, a standard Client service fee will be charged monthly, on a pro-rata basis, until the campaign is completed.
7.6 Where a Deliverable requires the approval of the Client, once Fenix has completed a Deliverable, Fenix will deliver such Deliverable to the Client for approval, prior to moving on to the next Deliverable.
7.7 The Client shall use its best efforts to approve or request a Revert within 10 (ten) days, in order for the Services to continue as agreed and not be delayed.
7.8 Should the Client require a Revert on a Deliverable, the Client is required to set out its requested changes and comments in writing, within the time frame referred to in clause 7.7, and submit to Fenix for review.
7.9 Should Fenix believe, in its sole discretion, that the Client’s Revert amounts to a change of scope or differs from the agreed Deliverables contained in the Order or Deliverable plan, the Revert shall be considered a Change and the process set out in clause 8 below must be followed.
7.10 Should Fenix accept that the Revert is in line with the scope of the Order, Fenix will make the required amendments and resubmit the Deliverable to the Client for acceptance.
7.11 The Client shall be entitled to a maximum of 3 (three) Reverts per Deliverable, any Reverts requested that exceed 2 (two), shall be billed at Fenix’s Time and Material Rates.

 

8. CHANGE CONTROL
8.1 During the currency of an Order, events may occur which require a change to the nature and scope of Services (each a Change). No Change shall be implemented unless the Parties comply with the terms of this clause.
8.2 Either Party may propose a Change to the nature and scope of Services by sending a Scope Change Document to the other Party detailing the desired changes.
8.3 Should a Scope Change Document be made by the Client then: –
8.3.1 the Client shall specify the reasons for that change and describe the change in sufficient detail to enable Fenix to formulate a response. Fenix shall investigate the likely impact of any proposed changes on the provision of Services and shall provide Client with a scope change proposal.
8.4 Should a Scope Change Document be made by Fenix then: –
8.4.1 Fenix shall detail in a scope change proposal the reasons for and impact of the change, the services required to implement the change and the effect that the changes, if implemented, will have on the relevant Order.
8.4.2 Fenix’s scope change proposal shall describe with a reasonable degree of specificity: –
8.4.2.1 the changes to the goods and/or Services;
8.4.2.2 any new or changed responsibilities of either Party;
8.4.2.3 changes to the Fees previously set forth in the affected Order; and
8.4.2.4 any other items which may be agreed to by the Parties.
8.5 The Parties shall discuss the proposed changes and shall affect the amendments to Fenix’s scope change proposal as may be agreed. The scope change proposal shall then be considered by Client and approved or rejected in its discretion in Writing within 3 (three) Business Days. If a scope change proposal: –
8.5.1 is accepted by Client, the scope change details shall be emailed to the duly authorised representatives of the Parties and incorporated into the relevant Order; or
8.5.2 is rejected by Client, the Services shall continue to be provided by Fenix on the existing terms set out in the Order.
8.6 In the event that Fenix has suggested a Change in order to improve the Deliverables or prevent a failure of any Deliverable, and the Client elects not to follow the advices of Fenix, then and in that event Fenix shall not be liable for any Service failure resulting from the failure to adopt the Change, it shall not constitute a breach of the Agreement or relevant Order and the Client hereby indemnifies Fenix against any losses Fenix or the Client may suffer as a result of the failure to approve the suggested Change.
8.7 The Client shall be liable to pay Fenix for Fees, media spend, Third Party Costs and other third party costs and expenses which were committed to or incurred prior to the date of the Change as well as any cancellation penalties imposed by any third party and any other losses resulting from Fenix’s adherence to Client’s instructions in connection with any Change, provided that Fenix shall use reasonable endeavours to mitigate such third party costs, expenses and penalties.
8.8 Where any Change results in a termination or any Change, or series of Changes, when taken together with the previous Changes in a given calendar year, will result in a reduction in the overall value of an Order by more than 25% (twenty five percent), then the reduction on the Fees resulting from such Change shall not be effective until a minimum of 30 (thirty) days following Fenix’s receipt of the Change Request, or such a termination period agreed in the relevant Order.
8.9 Where any Change Request amounts to a pause of any Order or portions thereof, such pause shall not affect the continued payment obligations contained in such Order. A pause of an Order shall only affect the delivery dates of the Deliverables which have been paused and/or the hours allocated to the Client during such paused period, unless otherwise agreed between the Parties.
8.10 It is expressly recorded that amendments to the content of this Agreement which do not directly impact the nature and scope of Services provided shall not be subject to the Change Control Procedure but shall be executed in Writing.

 

9. PERSONNEL
9.1 The Client shall allow Fenix’s Personnel access (at all reasonable times) to the Sites or platforms as necessary for the purposes of fulfilling its obligations under Orders.
9.2 Fenix shall be entitled, in its discretion, to allocate and reallocate any Fenix Personnel who provide Services and skills under the Agreement, provided that Fenix shall use all commercially reasonable efforts to ensure the continuity of the Services provided to Client under the Agreement. Each Party undertakes to provide the other with reasonable advance notice of any changes in their respective key Personnel.

 

10. FENIX OBLIGATIONS
10.1 Fenix shall take all commercially reasonable steps to comply with Client’s information security policies, standards, and guidelines, while using Client’s systems, networks, and applications, provided that Fenix has been advised of and supplied with copies of such policies and guidelines.
10.2 Fenix shall obtain and maintain, at its own expense, any licences or consents necessary for Fenix to provide the Services to Client.
10.3 For any Services performed at Client’s facilities, Fenix shall take all reasonable steps to ensure that its Personnel observe the physical and data access security requirements of Client and that they perform their duties in a manner that does not unreasonably interfere with Client’s business and operations.
10.4 Fenix shall advise the Client Project Manager should (i) the Client Personnel fail to provide information that is necessary for the fulfilment of the Services; or (ii) the non-compliance by the Client or the Client Personnel with its/their duties and responsibilities be likely to result in a situation where there is an impact on the Services, Deliverables and/or Fees.

 

11. CLIENT OBLIGATIONS
11.1 To enable Fenix to provide the Services, Client agrees to provide ongoing assistance, liaison, input, support, and full co-operation and shall, to the extent required by Fenix and at Client’s cost: –
11.1.1 make its Personnel available for workshops, group discussions and specific task execution as and when required according to a particular Order;
11.1.2 render all decisions and approvals required as soon as is reasonably possible;
11.1.3 provide a suitable infrastructure for the components, software or goods that are to be implemented, including servers, network infrastructure and operating systems, third party software, databases, tools, and related facilities, in accordance with any specification requirements;
11.1.4 provide Fenix with reasonable access to Client Material and Client’s marketing collateral and digital platforms;
11.1.5 notify Fenix as soon as reasonably possible of any issues, concerns, or disputes;
11.1.6 be responsible for the accuracy and completeness of all Client Material;
11.1.7 make available sufficiently qualified and authorised Client Personnel, with appropriate access rights and permissions;
11.1.8 comply with all reasonable policies, procedures, and instructions of Fenix applicable to the Services, which will be made available to the Client, on request for review; and
11.1.9 Deliverables, as set out in the relevant Order shall be reviewed by the Client’s Project Manager for approval once submitted. If Deliverables are neither formally approved nor rejected within 15 (fifteen) days of delivery, then they shall be deemed to have been accepted and the associated payment shall be invoiced and payable in accordance with clause 12.

 

12. FEES AND PAYMENT
12.1 In consideration for the Services, the Client shall be liable for and shall pay the Fees set out in the relevant Order.
12.2 Unless otherwise stated in an Order, all invoices shall be paid by Client within 7 (seven) calendar days of the date of Fenix’s invoice.
12.3 Where Services are quoted as a project, Fees shall be payable as follows:
12.3.1 50% upfront, prior to the commencement of any Services;
12.3.2 50% balance, together with any extra’s on completion of the Services and prior to final delivery of workable files
12.4 Where Services are billed monthly, payment shall be made upfront in full monthly in accordance with clause 12.2.
12.5 Unless otherwise specified in an Order, the Fees exclude all taxes (including value-added tax and other taxes levied in any jurisdiction, but excluding taxes based on the income of Fenix), duties (including stamp duties), tariffs, rates, levies and other governmental charges or expenses payable in respect of the Services, which shall be payable by Client in addition to the Fees.
12.6 In respect of third-party costs and Third-Party Costs, the Client shall pay Fenix within the period as may be necessary for timeous payment of such disbursements and/or Third-Party Costs, such that, Fenix has received the funds in time to meet Fenix’s payment obligations in respect of the Third-Party Costs and/or to the relevant third party. In no event shall Client require Fenix to use its funds for procurement or payment of Third-Party Costs or disbursements (nor shall Fenix be liable for any failure or delay caused by the failure or delay of Client in the timely provision of funds for such Third-Party Costs or disbursements).
12.7 The Client shall pay the disbursements and Third-Party Costs as set out in an Order, which has been accepted by the Client. Fenix shall be entitled to charge a reasonable agency commission or project management fee between 15% (fifteen percent) – 20% (twenty percent) of the Third-Party Costs.
12.8 Where the Deliverables include third-party services, the invoice shall include an amount equal to 50% (fifty percent) of any Third-Party Costs due as an upfront payment to any third-party suppliers. The remaining 50% (fifty percent) of such Third-Party Costs shall be invoiced to the Client upon completion of such services.
12.9 Client shall, in relation to an invoice or part of an invoice to which it has a bona fide dispute, notify Fenix in writing within 5 (five) business days of the date of Invoice Receipt the reason for such withholding and, where applicable, pay the undisputed part of such invoice in accordance with this clause.
12.10 Any amount so disputed shall be regarded as “due” as contemplated above, despite the dispute, but payment of the disputed amount shall be suspended until the dispute has been resolved. The affected invoice shall be resolved between the Parties’ respective Project Managers (or their duly authorised representatives) within 10 (ten) Business Days of such dispute being notified by the Client to the Service Provider. Failing resolution, the provisions of clause 26 shall apply.
12.11 During the period of bona fide dispute of the affected invoice, Fenix shall continue to render the Services to the Client in accordance with the terms agreed upon in the Order. Failing resolution of the dispute in accordance with clause 12.9 and once the period for resolution has expired and the dispute is referred to clause 26 for determination, Fenix may terminate this Agreement and/or the relevant Order, in its sole discretion.
12.12 The Parties shall endeavour to resolve the affected invoice timeously to ensure that no undue prejudice is suffered by either Party.
12.13 Where payment of any amount due is not made on the due date, Fenix shall be entitled to: –
12.13.1 charge interest on the outstanding amount at a rate of 2% (two percent) above the prime overdraft rate (percent, per annum) charged by Fenix’s then-current bankers from time to time, as evidenced by any manager of the bank, whose authority it shall not be necessary to prove. Interest shall be calculated from the due date of payment to the date of actual payment, both days inclusive, compounded calendar monthly in arrears and Client agrees and undertakes to pay on demand the penalty interest, which it hereby accepts as fair and reasonable; and
12.13.2 without prejudice to any other right or remedy it may have, halt the provision of any Services as Fenix (in its sole discretion) chooses until all payments in arrears have been paid in full.
12.14 All amounts due and payable by Client shall be paid to Fenix in South African Rands, without deduction or set-off for any reason at an address and in a manner specified by Fenix in writing from time to time. Client shall not be entitled to withhold payment of any amounts payable to Fenix to satisfy any claim of Client arising from the Agreement or any other agreement.
12.15 Fenix shall be entitled to set-off any amount due to it by the Client against any amount due to the Client by Fenix. Any such set off will be clearly set out in a statement.
12.16 Fenix shall be entitled to pause any services rendered or paid ad campaigns if payment of any invoice is outstanding for 30 days or more. Services and Orders will continue on receipt of all outstanding payments due.
12.17 Fees are reviewed by Fenix on an annual basis and Client shall be notified on the maturity of their order of the 8% (eight percent) – 10% (ten percent) annual escalation. Should the Parties be unable to agree on the amount of such escalation within 3 (three) months from the review date, the Fees shall automatically be escalated by the increase in CPI, which escalation shall be backdated to the commencement of the Contract Year. automatic annual renewal after 12 months
12.18 Fenix reserves the right to charge a reasonable cancellation fee should the Client unilaterally terminate the Services or this Agreement in a manner and/or for a reason not expressly provided for in this Agreement or in the event that Fenix terminates this Agreement for a breach of this consideration and payment clause.
12.19 The Client agrees that it shall pay all Fenix’s expenses in recovering any amounts the Client owes Fenix, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
12.20 Client shall reimburse Fenix for all reasonable expenses as are properly incurred by Fenix or Fenix’s Personnel in fulfilling Fenix’s obligations under the Agreement. Fenix shall obtain the Written approval of the Client in respect of these expenses.
12.21 If Fenix suspends the provision of the Services, Client shall pay to Fenix the costs incurred by Fenix (including redeployment, travel, and associated expenses) in remobilising Fenix’s Personnel affected by the Agreement and recommencing the provision of the Services.
12.22 If at any time the direct costs of performing Fenix’s obligations under the Agreement are increased as a result of increases in any third-party costs, outside the control of Fenix, then Fenix will notify Client of such increase and the increase shall become effective within 30 (thirty) days of such notice.

 

13. SUSPENSION OF SERVICES
13.1 Fenix may lawfully suspend and withdraw all or part of the Services, which includes the suspension of Client’s website, social media, Google, or paid ad campaigns at any time until further notice to Client if:
13.1.1 Fenix reasonably considers that the continued provision of the Services may cause Fenix to breach an applicable law or be in contravention of any operating licence or other authorisation;
13.1.2 The Client is in breach of or otherwise is not complying with any of the provisions of this Agreement, any Annexure and/or the Order, Fenix having given the Client 5 (five) days written notice to remedy the breach; or
13.1.3 Any payment or invoice delivered by Fenix to Client is not paid by the due date without valid dispute.
13.2 The exercise of Fenix’s right to suspend the Services under this clause at its sole discretion is without prejudice to any other remedy available to Fenix under this Agreement and does not constitute a waiver of Fenix’s right to subsequently terminate the Order and or the Agreement.
13.3 The Services may also be suspended in event of any of the following, and the Client acknowledges that this suspension is outside the control of Fenix:
13.3.1 during any technical failure, modification or network maintenance of the platforms used for the Services; or
13.3.2 in the event that Fenix receives a court order from a South African court or a direction from any lawfully competent authority requiring Fenix to suspend the Services. If permitted to, under law, Fenix shall advise the Client of such order or direction in order to allow it to take such steps as may be required to protect its interests.

 

14. REPORTING AND MEETINGS
The Parties agree that reporting and meeting requirements shall be addressed, where relevant, in each Order.

 

15. INTELLECTUAL PROPERTY RIGHTS
15.1 Subject to the remaining provisions of this clause, all Intellectual Property owned by either Party (whether before or after the Effective Date) shall remain the sole and exclusive property of that Party.
15.2 All content on Fenix’s website (unless explicitly stated), is Fenix’s property or licensed to Fenix whether registered or not. Fenix specifically reserves all rights relating to such content.
15.3 The trademark, copyright or other Intellectual Property rights in the Deliverables created by Fenix for the Client, which includes login details and workable files, (with the exception of Fenix’s Retained Intellectual Property included therein or any improvements made in respect thereof) will vest in, and be assigned to the Client, upon full and final payment of all of Fenix’s Fees, third party costs and associated fees, duly payable in terms of clause 12. It is, however, specifically noted that this excludes all third-party rights, including the rights in Fenix’s Derivative Works, which by their nature cannot be fully assigned to the Client. These include, but are not limited to, widgets and other software created/developed by Fenix for use by the Client but excludes the Client Intellectual Property used in the customisation of the widget and/or software development, model, and music rights where the rights only relate to a specific territory, medium and/or duration. For the sake of clarity, such third-party rights that cannot be fully assigned to Client will be provided to Client by way of a licence unless otherwise agreed in an Order. The Client fully indemnifies Fenix for any misuse of a third party’s rights that is licensed to the Client.
15.4 Fenix may be entitled to retain the moral rights to the Content and holds the right to display created works and case studies in its portfolio, including its website.
15.5 In the event that the Client uses Intellectual Property for any other purpose other than that that has been acquired by Fenix and communicated to the Client, then Fenix will not be held liable.
15.6 Neither Party’s trademarks (whether registered or not and whether or not licensed to a Party) and/or copyrights and/or any Intellectual Property may be used: –
15.6.1 with any other product or service without the other Party’s prior Written consent.
15.6.2 in any way that may cause confusion, or in a way that prejudices or discredits the other Party.
15.7 Subject to this clause 15, neither Party shall acquire any rights, title, or interest of any kind in any Intellectual Property owned by the other Party.
15.8 Each Party shall: –
15.8.1 not do or permit any acts to be done which are calculated to prejudice, affect, impair, or destroy the right, or interest of the other Party’s Intellectual Property rights; and
15.8.2 forthwith notify the other Party in writing of any actual or threatened infringement of the other Party’s Intellectual Property rights which may come to its attention, and it shall, at the request and cost of the other Party, take all steps as the other Party shall from time to time consider necessary for the protection of the other Party’s Intellectual Property rights.
15.9 Fenix shall be entitled to use the Client’s name and/or logo and/or works publicly for marketing purposes and may identify the Client as a client of Fenix, and the Client hereby consents to the use of its name and/or logo and/or works being displayed on Fenix’s website.
15.10 Client hereby grants to Fenix a non-exclusive royalty-free licence, for the duration of the Agreement, to use the Client IP to the extent legally permissible to do so. However, Fenix shall not have the right to sub-licence the Client IP.
15.11 Where Fenix utilises any Fenix IP in connection with Fenix’s performance under an Order, the Fenix IP shall remain the property of Fenix and Client shall acquire no right or interest therein, provided that, to the extent that the Fenix IP forms part of any product provided by Fenix to Client, Fenix hereby grants Client a royalty-free, non-exclusive license to use the Fenix IP solely in relation to such product.
15.12 Where Services that are Delivered to the Client include setup of a Client account on a Fenix analytics dashboard, the setup methodology, Fenix created account access details and related Fenix IP, shall remain the property of Fenix and Client shall acquire no right or interest in or to the set-up of any Client account, nor shall the Client be entitled to full access of any Fenix analytics dashboard.

 

16. INDEMNITY
16.1 Subject to clause 23 (Limitation of Liability), Fenix shall indemnify Client against all direct losses suffered or incurred by Client, arising out of or in connection with any claim that Client’s authorized and unmodified use of the Deliverables as contemplated by this Agreement or any Order infringes the Intellectual Property of any third party (an “IP Claim”), provided always that the Client provides Fenix with immediate Written notice of any IP Claim brought to its attention.
16.2 Fenix shall have no liability in connection with an IP Claim to the extent that it arises, or is increased, as a result of:
16.2.1 Fenix’s use (in accordance with the Agreement) of Client Intellectual Property;
16.2.2 Claims arising in respect of any risk that Fenix has identified in connection with the Client’s use of the Deliverables and has expressly advised the Client that it ought to mitigate or avoid, but which the Client approves in writing or otherwise in respect of which the Client elects to proceed;
16.2.3 Client’s failure to adhere to the terms of any applicable licence in respect of third-party materials;
16.2.4 Client’s gross negligence or wilful misconduct; and/or
16.2.5 use of the applicable Deliverable outside the scope, purpose and/or country of use for the same set out in the applicable Order relevant to such Deliverable.
16.3 Client shall:
16.3.1 Be obliged to take commercially reasonable steps to mitigate any losses or other liabilities it may suffer or incur arising under or in connection with this Agreement;
16.3.2 subject to Clause 16.4, allow Fenix to assume sole control of the negotiation, defence and settlement of the IP Claim and not make any admissions or compromise in relation to the same;
16.3.3 at Fenix’s expense, give Fenix such assistance as Fenix may reasonably require in the negotiation, defence, settlement, or compromise of the IP Claim;
16.3.4 indemnify Fenix from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, wilful misconduct and/or gross negligence.
16.4 Fenix shall conduct the negotiation, settlement and/or litigation of any IP Claim with due regard to the interests of Client and shall not settle or make any compromise in relation to any IP Claim without the prior Written consent of Client (such consent not to be unreasonably withheld or delayed).
16.5 Where Fenix and the Client are negligent or otherwise at fault or strictly liable without fault, then the obligations of indemnification under this clause shall continue, but Fenix shall be liable only for the percentage of responsibility or the damage or injuries attributable to Fenix.
16.6 Once a third-party IP Claim is brought against the indemnified Party, or if in the indemnifying Party’s reasonable opinion, a third-party IP Claim is likely to be brought, the indemnifying Party shall, with the Written approval of indemnified Party (which shall not be unreasonably withheld), promptly:
16.6.1 procure for indemnifying Party the right to continue using the infringing Intellectual Property;
16.6.2 modify the infringing Intellectual Property so as to render the same non-infringing; or
16.6.3 replace it with Intellectual Property which is functionally equivalent to the infringing Intellectual Property so as to render the same non-infringing.

 

17. USE AND PROTECTION OF PERSONAL INFORMATION
17.1 For purposes of this clause –
17.1.1 “Data Protection Legislation” means applicable data protection or data privacy laws, including POPIA, in force in South Africa from time to time;
17.1.2 “Disclosing Party” means a Party who discloses Personal Information to a Receiving Party, or on whose behalf Personal Information has been collected by the Receiving Party, pursuant to this Agreement;
17.1.3 “Operator” has the meaning ascribed thereto in POPIA;
17.1.4 “Personal Information” has the meaning ascribed thereto in POPIA and is being or may be processed by the Receiving Party pursuant to this Agreement;
17.1.5 “POPIA” means the Protection of Personal Information Act No 4 of 2013 and any regulations passed thereunder, as may be amended from time to time;
17.1.6 “Processing” has the meaning ascribed thereto in POPIA and derivatives thereof will have cognate meanings;
17.1.7 “Receiving Party” means a Party who receives Personal Information from the Disclosing Party, or on whose behalf it collects Personal Information, pursuant to this Agreement and such receipt of Personal Information renders that Party an Operator;
17.1.8 “Representative” means an officer, director, or Personnel of the Receiving Party; and
17.1.9 “Third Party Operator” means a third party who is an Operator of the Receiving Party.
17.2 To the extent that the Receiving Party Processes Personal Information as an Operator of the Disclosing Party, it warrants that: –
17.2.1 it shall process such Personal Information only on the Written instruction of the Disclosing Party, in accordance with this Agreement or as required by Data Protection Legislation and as necessary to perform its obligations under this Agreement and for no other purpose;
17.2.2 it shall not create or maintain data which are derivatives of such Personal Information, except for the purpose of performing its obligations under this Agreement and as authorised by the Disclosing Party in Writing;
17.2.3 it shall, at any and all times during which it is Processing such Personal Information:
17.2.3.1 comply with Data Protection Legislation, and not, by act or omission, place the Disclosing Party in violation of any applicable privacy or security law;
17.2.3.2 implement and maintain appropriate and reasonable technical and organisational security measures to protect the security of such Personal Information, including security measures applicable to the storage and transmission of such Personal Information, and to prevent a data security breach, including, without limitation, a breach resulting from or arising out of the Receiving Party’s internal use, Processing or other transmission of such Personal Information, whether between or among the Receiving Party’s Representatives or any Third Party Operator;
17.2.3.3 assign Personnel who will be responsible for implementing and maintaining the technical and organisational security measures required in terms of this Agreement and, upon the Disclosing Party’s request, provide evidence that it has established and maintains such technical and organisational security measures governing the Processing of such Personal Information;
17.2.3.4 safely secure all such Personal Information when processing such Personal Information on a laptop or other portable device (including memory sticks, USB flash drives, or other storage medium devices);
17.2.4 it shall notify the Disclosing Party without undue delay from the date of obtaining actual knowledge of any data security breach in respect of such Personal Data and, at the Receiving Party’s cost and expense, assist and cooperate with the Disclosing Party concerning any disclosures to affected parties and other remedial measures as requested by the Disclosing Party or required under applicable law;
17.2.5 it shall not permit any Representative or Third-Party Operator to process such Personal Information, unless such Processing is in compliance with this Agreement and is necessary in order to carry out the Receiving Party’s obligations under this Agreement;
17.2.6 it shall not disclose such Personal Information to any third party (including, without limitation, its affiliates and subsidiaries and Third-Party Operators) unless –
17.2.6.1 the disclosure is necessary in order to carry out the Receiving Party’s obligations under this Agreement;
17.2.6.2 such third party is bound by the same provisions and obligations as those set out in this Agreement;
17.2.6.3 the Receiving Party has received the Disclosing Party’s prior Written consent; and
17.2.6.4 the Receiving Party remains responsible for any breach by such third party of the obligations set out in this Agreement to the same extent as if the Receiving Party caused such breach;
17.2.7 it shall establish policies and procedures to provide all reasonable and prompt assistance to the Disclosing Party in responding to any and all requests, complaints, or other communications received from any individual who is or may be the subject of any such Personal Information;
17.2.8 it shall provide security awareness and/or training to its Representatives who are involved in the processing of Personal Information on its behalf, to promote continual security education related to user security responsibilities for protecting Personal Information received from the Disclosing Party;
17.2.9 it shall immediately cease processing any Personal Information and shall return, delete, or destroy (at the Disclosing Party’s election), or cause or arrange for the return, deletion, or destruction of, all such Personal Information, including all originals and copies of such Personal Information in any medium and any materials derived from or incorporating such Personal Information, upon the expiration or earlier termination of this Agreement or otherwise on the instruction of the Disclosing Party, but in no event later than 10 (ten) days from the date of such expiration, earlier termination or instruction, unless otherwise required by any Applicable Law;
17.2.10 it and all of its Representatives shall adhere to the requirements and security safeguards set out in POPIA;
17.2.11 it shall designate adequate resources to assist with the compliance and implementation of the obligations imposed on the Parties in terms of POPIA and will implement the necessary controls to ensure appropriate data protection and governance of such Personal Information. The Receiving Party will provide the Disclosing Party, on its request, with evidence of the implementation of such controls;
17.2.12 it shall conduct periodical internal reviews to measure the adequacy of the implemented controls on infrastructure and platforms that are used to process such Personal Information;
17.2.13 it shall not use such Personal Information for any purpose that is inconsistent with POPIA on or before the time of collection of that Personal Information;
17.2.14 it shall employ prudent and effective business continuity and disaster recovery facilities and procedures for the purposes of protecting all such Personal Information; and
17.2.15 it shall not transfer such Personal Information outside of South Africa unless the recipient of the Personal Information is subject to a law, binding corporate rules or binding agreement, which provide an adequate level of protection for the Personal Information, as determined with reference to POPIA.
17.3 Client Material and Client Data
17.3.1 Fenix and Client are each responsible for complying with their respective obligations under applicable privacy and protection of personal information laws governing Client Data.
17.3.2 Client remains solely responsible for determining the purposes and means of Fenix’s processing of Client Data, including that processing in line with the Agreement will not place Fenix in breach of any applicable privacy and protection of personal information laws.
17.3.3 Fenix and Client each acknowledge that it is not investigating the steps the other is taking to comply with any applicable privacy and protection of personal information laws.
17.4 Trans-border Client Data flows
17.4.1 Client hereby consents to Fenix transferring Client Data across a country border to enable Fenix to comply with its obligations under the Agreement.
17.4.2 Client is solely responsible for obtaining the required consent to transfer Client Data across a country border in compliance with the applicable privacy and protection of personal information laws.
17.4.3 Client hereby indemnifies and holds Fenix harmless from any claim, damages, penalty or fine as a result of Client failing to comply with its obligations under this clause 17, including all legal costs incurred on an attorney-and-own-client basis.
17.4.4 On either Party’s reasonable Written request, the other Party will provide the requesting Party with the information that it has regarding Client Data and its processing that is necessary to enable the requesting Party to comply with its obligations under this clause and the applicable privacy, protection of personal information and access to information laws. The requesting Party will reimburse the other Party for its reasonable charges for such assistance. These charges should be agreed in writing by the Party before they can be undertaken.
17.4.5 Both Parties shall take reasonable precautions (having regard to the nature of their obligations under the Agreement) to preserve the integrity of Client Data and to prevent any unauthorised access, corruption, or loss of Client Data.
17.4.6 In termination of any Order, each Party shall return to the other Party in the form in which it received all of the other Party’s data or information provided to the Party for the purpose of the performance of the relevant Order.

 

18. CLIENT THIRD PARTY CONTRACTORS
18.1 Where Fenix is required under Orders to manage or liaise with Client-appointed Third-Party Contractors pursuant to Third Party Contracts, the following provisions will apply: –
18.1.1 Client shall notify Fenix in Writing of the applicable terms of the Third-Party Contracts insofar as they relate to or have an impact on Fenix’s obligations;
18.1.2 Fenix shall not be required to ensure or be responsible for ensuring Client’s or the Third-Party Contractors’ compliance with the terms of the Third-Party Contracts; and
18.1.3 Client shall be responsible for obtaining and maintaining all necessary licences, consents, or authorities under the Third-Party Contracts (including any consents or licences required to enable Fenix to fulfil its obligations under the Agreement) and shall be liable for all fees and other charges payable to any Third-Party Contractors pursuant to the Third-Party Contracts.
18.2 Fenix shall not be liable for any act or omission of a Third-Party Contractor, except to the extent that Fenix has directly caused such act or omission to occur.

 

19. REPRESENTATIONS AND WARRANTIES
19.1 Each Party represents and warrants that:
19.1.1 the engagement with each other and performance of this Agreement has been duly authorised by the requisite corporate action on the part of such Party; and
19.1.2 it has not violated any applicable law or policies of the other Party of which it has been given Written notice, regarding the offering of unlawful inducements in connection with this Agreement.
19.2 Fenix cannot and does not guarantee that (a) the software tools used in the provision of the Services will be available or error-free or uninterrupted, or that all errors will be corrected by licensor, (b) the software tools used in the provision of the Services will operate in combination with Client applications, or with any other Client hardware, software, systems, services or data, (c) the outcomes and data collected with the use of the software tools will meet the Client’s requirements, specifications or expectations. The Client acknowledges that Fenix does not control the transfer of data over communications facilities, including the internet, and that the software tools and Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Fenix is not responsible for any delays, delivery failures, or other damage resulting from such problems. Fenix is not responsible for any issues related to the performance, operation or security of digital platforms and software tools arising from Client Data, Client Materials, applications, or third-party content. Fenix does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of third-party content or products and services, and disclaims all liabilities arising from or related to third-party content or services.
19.3 Each of the warranties and undertakings set out in this clause 19 shall be read separately from and without prejudice to and without derogation from the others.

 

20. DELAYS
20.1 Where: –
20.1.1 Client does not provide access to a person, place, or thing timeously; changes a decision which Client has previously communicated to Fenix; does not reply to a communication from Fenix within the required (or reasonable) period; a failure or delay by the Client appointed Third-Party Contractor or supplier; or the Client unreasonably rejects a Deliverable; or
20.1.2 Fenix’s performance is affected by an event of force majeure; or the failure of a Fenix appointed third party supplier or for reasons outside the reasonable control of Fenix,
Such action shall constitute a “Delay”.
20.2 A Party shall notify the other of an event which has occurred or is anticipated and which: –
20.2.1 the notifying Party believes is or may be a Delay; and
20.2.2 occurred no more than 14 (fourteen) calendar days previously.
20.3 Fenix’s performance shall be extended on a reasonable basis in proportion to the prejudice caused by the Delay, provided that the extension is at least the number of days of the Delay.
20.4 Proposals for Delay.
20.4.1 Should a Delay arise Fenix may submit proposals for different ways of dealing with the Delay. Fenix shall submit proposals to Client which may set out a variety of methods for dealing with the Delay which Fenix considers practical.
20.4.2 Proposals for addressing Delays shall include proposed changes to the scope of work, prices, loss of income due to the Delay and any delay to the date of performance assessed by Fenix.
20.4.3 Client shall reply to Fenix within 5 (five) Business Days of the submission of Fenix’s proposal: –
20.4.3.1 accepting the proposal, requiring a revised proposal, in which event, Client shall provide Fenix with reasons for doing so. Fenix shall submit the revised proposal within 5 (five) Business Days of being required to do so; or
20.4.3.2 rejecting the proposal, notifying Fenix that the proposal shall not be accepted and that a revised proposal is not required. In such an event, a dispute will be deemed to exist between the Parties to be resolved under clause 26.
20.5 Assessing Delays.
20.5.1 The changes to the prices must be assessed with regard to the effect of the Delay on –
20.5.1.1 the fee for the work already done, and
20.5.1.2 the forecast fee for the work not yet done.
20.5.2 A delay in performance is assessed as the length of time that, due to a Delay, planned performance is later than originally indicated.
20.5.3 Fenix shall include in Fenix’s proposal for a change to the scope proposed rates for its Personnel.
20.6 Fenix shall implement each accepted proposal in accordance with the proposal’s terms.
20.7 If an amount would have been payable to Fenix by Client had it not been for a Delay as set out in clause 20.1, Client shall pay Fenix the amount, notwithstanding the fact that any milestone has been adjusted.
20.8 Should the Delay be as a result of Fenix not being able to fulfil its obligations in terms of the Agreement, as a result events contemplated in clause 20.1.2, the Client shall not be responsible for the costs of the Delay, but Fenix’s failure in performance shall not constitute a breach.

 

21. CONFIDENTIAL INFORMATION
21.1 Each Party (“Receiving Party”) must treat and hold as confidential all information which it may receive from the other Party (“Disclosing Party”) or which becomes known to it during the currency of the Agreement.
21.2 The confidential information of the Disclosing Party shall include: –
21.2.1 all software and associated material and documentation, including the information contained therein;
21.2.2 Client Data;
21.2.3 all information relating to: –
21.2.3.1 the Disclosing Party’s past, present, and future research and development;
21.2.3.2 the Disclosing Party’s business activities, pricing, products, services, clients, as well as the Disclosing Party’s technical knowledge and trade secrets;
21.2.4 the terms of the Agreement.
21.3 The Receiving Party agrees that in order to protect the proprietary interests of the Disclosing Party in the Disclosing Party’s confidential information: –
21.3.1 it shall only use the confidential information for the purposes of complying with its obligations under the Agreement;
21.3.2 it shall only make the confidential information available to those of the Receiving Party’s Personnel who are actively involved in the execution of the Receiving Party’s obligations under the Agreement and then only on a “need to know” basis;
21.3.3 it shall initiate internal security procedures reasonably acceptable to the Disclosing Party to prevent unauthorised disclosure and will take all practical steps to impress upon those Personnel who need to be given access to confidential information, its secret and confidential nature;
21.3.4 subject to the right to make the confidential information available to its Personnel under clause 21.3.2, it shall not at any time use any confidential information of the Disclosing Party or directly or indirectly disclose any confidential information of the Disclosing Party to third parties;
21.3.5 all Written instructions, drawings, notes, memoranda and records of whatever nature relating to the confidential information of the Disclosing Party which have or shall come into the possession of the Receiving Party and its Personnel, shall be and shall at all times remain the sole and absolute property of the Disclosing Party and shall promptly be handed over to the Disclosing Party when no longer required for the purposes of an Order.
21.4 On termination or expiry of an Order, the Parties will deliver to each other or, at the other Party’s option, destroy all originals and copies of confidential information in their possession.
21.5 These obligations shall not apply to any information which: –
21.5.1 is lawfully in the public domain at the time of disclosure;
21.5.2 subsequently and lawfully becomes part of the public domain by publication or otherwise;
21.5.3 subsequently becomes available to the Receiving Party from a source other than the Disclosing Party, which source is lawfully entitled without any restriction on disclosure to disclose the confidential information; or
21.5.4 is disclosed pursuant to a requirement or request by operation of law, regulation, or court order.
21.6 The Receiving Party hereby indemnifies the Disclosing Party against any loss or damage which the Disclosing Party may suffer as a result of a breach of this clause by the Receiving Party or the Receiving Party’s Personnel.
21.7 This clause is severable from the remainder of the Agreement and shall remain valid and binding on the Parties, notwithstanding any termination.

 

22. NON-SOLICITATION
22.1 The Parties agree that they shall not during the term of this Agreement and any Order and for a period of 12 (twelve) months after the termination or expiration of this Agreement and/or a specific Order in any capacity, directly, without the Written consent of the other Party offer employment to or cause employment to be offered to or cause to be employed any person employed or contracted by the other Party and engaged by the last-mentioned Party in the provision or receipt of the Services.
22.2 In the event that either Party breaches this clause it shall be liable to pay to the non-breaching Party, on demand, an amount equal to 12 (twelve) months of the solicited Personnel’s salary, whilst such employee was employed at the non-breaching Party.
22.3 The Parties further agree that the aforesaid provisions are fair and reasonable and go no further than is necessary to protect the interests of the Parties in respect of their Personnel.

 

23. LIMITATION OF LIABILITY
23.1 Nothing in this Agreement shall limit or exclude any liability for:
23.1.1 death or personal injury caused by negligence;
23.1.2 fraud or fraudulent misrepresentation; or
23.1.3 any liability which cannot be limited or excluded by applicable law.
23.2 Subject to Clause 23.1 but notwithstanding any other provision of this Agreement, neither Party shall have any liability arising under or in connection with this Agreement, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for loss of profit, business or business opportunity, anticipated savings, goodwill or reputation, indirect, incidental, punitive, consequential or special damage (whether or not the relevant party had been advised of the possibility of any such damage arising).
23.3 Subject to clauses 23.1 and 23.2, but notwithstanding any other provision of this Agreement, Fenix’s maximum aggregate liability to the Client, whether in contract, delict (including negligence), breach of statutory duty or otherwise, arising under or in connection with this Agreement, shall be limited to the lower of: –
23.3.1 a sum equal to the total Fees paid or to be paid to Fenix under this Agreement within the twelve months in which the claim arose; or
23.3.2 that proportion of the loss or damage (including interest and costs) suffered by the Client, which is ascribed to Fenix by a Court of competent jurisdiction or Arbitrator allocating a proportionate responsibility to the Client having regard to the contribution to the loss or damage in question by the Client or any other person based upon relative degrees of fault.
23.4 For the avoidance of doubt, any reference in this Clause 23 to “arising under or in connection with this Agreement” (or any similar expression) shall include a reference to all Order’s, and purchase orders made under or in connection with this Agreement.
23.5 The Parties shall each use commercially reasonable efforts to mitigate any losses or other liabilities they may suffer or incur arising under or in connection with this Agreement.
23.6 Should the Client fail to mitigate its loss by failing to exclude liability for consequential, incidental, indirect, punitive or special damages of any kind with any third party Clients or other service providers or indemnitees, the Client shall not be entitled to pass on any such damage to Fenix and Fenix shall in turn not be liable for such damages suffered by such Client(s), service providers or indemnitees, resulting from a failure to deliver its products or services to its Clients.
23.7 This clause 23 shall survive termination of the Agreement.

 

24. BREACH AND TERMINATION
24.1 Either Party shall be entitled to cancel any Order as follows, or in accordance with the terms recorded in the relevant Order:
24.1.1 Social Media, Google and SEO Services may not be terminated during the Initial Term, but can be terminated on two calendar month’s written notice to that effect, to the other Party, after the expiry of the Initial Term;
24.1.2 Paid advertising Services may not be terminated during the Initial Term, but can be terminated on two calendar month’s Written notice to that effect, to the other Party, after the expiry of the Initial Term;
24.1.3 Website development and hosting Services may be terminated on two calendar month’s Written notice to that effect, to the other Party;
24.1.4 Website maintenance Services may not be terminated during the Fixed Term, but can be terminated on two calendar month’s Written notice to that effect, to the other Party, after the expiry of the Fixed Term;
24.1.5 Content Services may be terminated on two calendar month’s Written notice to that effect, to the other Party;
24.1.6 Advertising Campaigns cancelled within 30 days of Campaign go live date, will incur set up fees associated to that campaign.
24.2 Where the Client has elected to terminate the Agreement or any particular Order in accordance with clause 24.1 above, the Client shall be liable to pay Fenix for Fees, media spend, Strategy, Set Up, Third Party Costs and other disbursements and expenses which were committed to or incurred prior to the date of the notice of termination as well as any cancellation penalties imposed by any third party and any other losses resulting from Fenix’s adherence to Client’s instructions in connection with the termination, provided that Fenix shall use reasonable endeavours to mitigate such third party costs, expenses and penalties.
24.3 Breach
24.3.1 Fenix shall be entitled to terminate this Agreement and/or any relevant Order in the event that the Client:
24.3.1.1 has failed to make payment of an overdue invoice, and has failed to remedy the non-payment within a period of 30 days following service of a notice requiring its remedy, and irrespective of the reason for such non-payment including in any case where Client claims Force Majeure in respect of same;
24.3.1.2 has breached any of its obligations under this Agreement, where such breach is capable of remedy, has failed to remedy the breach within a period of 30 days following service of a notice detailing the breach and requiring its remedy.
24.3.2 In the event that Fenix commits a breach of the Services provided under an Order or this Agreement, the Client shall notify Fenix in Writing of such breach or failure in detail and Fenix shall review the breach and provide the Client with a remediation plan to rectify the breach.
24.3.3 Notwithstanding the provisions of this clause, the Client shall not be entitled to cancel this Agreement or relevant Order, unless the breach is a material breach going to the root of this Agreement and specific performance is or has become impossible and the breach is incapable of being remedied by payment in money, or if it is capable of being remedied by payment in money, Fenix fails to pay the amount concerned within 10 (ten) Business Days after such amount has been finally determined.
24.4 Termination for cause
24.4.1 Without prejudice to any rights and remedies that may have accrued to a Party, either Party may terminate this Agreement or any Order with immediate effect by providing the other Party Written notice of its intention to do so if the other Party:
24.4.1.1 ceases to trade (either in whole or as to any part involved in the performance of this Agreement or any Order);
24.4.1.2 becomes insolvent, is sequestrated, or placed under provisional liquidation, or finally liquidated, or placed into business rescue;
24.4.1.3 makes any composition or arrangement with its creditors, takes, or suffers any similar action in consequence of debt, is unable to pay its debts under any applicable law relating to insolvency or bankruptcy or the relief of debtors.
24.4.2 Fenix may terminate this Agreement and/or relevant Order or suspend Services in accordance with clause 12 should the Client fail to pay in full the Fees set out in the relevant Order.
24.5 The remedies in this clause 24 shall not be exhaustive and each such remedy shall be in addition and without prejudice to any of the remedies which that a Party may have whether or not expressly provided for in this Agreement.
24.6 The cancellation or termination of this Agreement for any reason shall be without prejudice to any obligation by either party to the other which shall have accrued and become owing at the time of the cancellation or termination.

 

25. EFFECT OF TERMINATION
25.1 On termination of any Order for any reason, all amounts due to Fenix for Services rendered prior to termination shall become due and payable even if they have not been invoiced. The amounts may not be withheld for any reason, unless there is a dispute in relation to the quantum, in which case the dispute will be resolved in terms of clause 26.
25.2 On termination, cancellation, or expiry of any Order: –
25.2.1 the provision of all Services under the Order shall forthwith cease;
25.2.2 each Party will deliver to the other Party, or at the other Party’s option destroy (and procure the delivery or destruction by Third-Party Contractors of) all originals and copies of confidential information and proprietary materials in its or their possession or under its or their control; and
25.2.3 Client shall, where applicable, cease use of the Software.
25.3 Each Party shall return all Confidential Information in its possession, as well as any materials containing, pertaining or relating to the Personal Information disclosed pursuant to this Agreement and all documents, storage media, drawings and any other medium containing the Confidential Information (as well as all copies, notes or reproductions thereof) of the other Party, to the other Party and, if requested, shall delete and remove the Confidential Information from its electronic data bases.
25.4 Upon termination, any works in progress, completed works, Deliverables anything containing Client’s Intellectual Property and any other materials pertaining to any work and/or Services provided by Fenix to the Client in terms of this Agreement shall be returned to the Client on full payment of all fees due up to the effective date of any such termination.
25.5 The expiry or termination of the Agreement or any Order shall not affect the enforceability of the terms which are intended to operate after such expiry or termination.

 

26. DISPUTE RESOLUTION
26.1 The Parties shall initially attempt in good faith to promptly resolve any dispute arising out of or relating to this Agreement or any Order through negotiations between the respective Project Managers (or their duly authorised representatives) within 10 (ten) Business Days after the dispute was notified in Writing by one to the other.
26.2 If the dispute is not resolved through negotiations as described in clause 26.1 within the aforementioned 10 (ten) Business Day period, either Party may approach the relevant courts for relief. In this regard the Parties agree to the jurisdiction of the relevant Magistrates Court, despite the monetary value of the claim, in accordance with section 45 (1) of the Magistrates Court Act.

 

27. NOTICES AND DOMICILE
27.1 The Parties select as their as their respective domicillium citandi et executandi (domicile) the addresses recorded in clauses 1.1.9 and 1.1.15, or all the purposes under this Agreement.
27.2 The Parties for the purposes of giving or sending any notice or communication provided for or required in terms of this Agreement, select the or email addresses recorded on the first and second page of this Agreement or the relevant Order, which may be substituted by Written notice given as herein allowed.
27.3 Any notice or communication to be given by a Party to the other shall be deemed to have been duly received, unless the contrary is proved, by the other Party: –
27.3.1 if addressed to the addressee at its domicile; or
27.3.2 if delivered to the addressee’s e-mail address, in the absence of any administrator or mail server error messages, on the date of delivery thereof, provided such date is a Business Day or otherwise on the next Business Day.
27.4 Each Party shall be entitled to change its address and contact details by giving 7 (seven) Business Days’ Written notice to the other Party’s Project Manager.
27.5 Notwithstanding anything to the contrary contained in this Agreement, a Written notice or communication actually received by one of the Parties from another, shall be adequate Written notice or communication to such Party.
27.6 Any provision that requires any notice (including a letter of demand), authorisation and/or request to be given or made in connection with an Order or this Agreement, which is required to be in Writing, shall be complied with if such notice is sent via electronic communication in accordance with the provisions of the provisions of the Electronic Communications and Transactions Act, No. 25 of 2002.

 

28. FORCE MAJEURE
28.1 Neither Party shall be liable for any failure to fulfil its obligations under the Agreement or any Order if and to the extent such failure is caused by any circumstances beyond its reasonable control, including flood, fire, earthquake, pandemic, riot, strike, war, tempest, hurricane, industrial action, government restrictions or acts of God.
28.2 Should any event of force majeure arise, the affected Party shall notify the other Party without delay and the Parties shall meet within 7 (seven) calendar days of the notice to negotiate in good faith alternative methods of fulfilling its obligations under the Agreement or an Order, if any. In addition, Fenix shall continue to provide, and Client shall continue to pay for those Services not affected by the event of force majeure.
28.3 Should either Party be unable to fulfil a material part of its obligations under an Order for a period in excess of 60 (sixty) calendar days due to circumstances or force majeure, the other Party may at its sole discretion cancel the Agreement forthwith by Written notice.

 

29. ASSIGNMENT AND SUBCONTRACTING
29.1 Neither Party shall be entitled to cede, assign, delegate or otherwise transfer the benefit or burden of all or any part of the Agreement without the prior Written consent of the other Party.
29.2 Notwithstanding the provisions of clause 29.1, it is expressly recorded and agreed that Fenix shall be entitled to utilise freelancers and independent contractors in the ordinary course of its business without first obtaining permission from the Client, provided that Fenix shall remain liable for performance of the freelancers and independent contractors.

 

30. ANTIBRIBERY AND CORRUPTION
30.1 The Parties agree to comply with such anti-bribery and corruption policies as may be communicated to the other from time to time as well as all relevant laws applicable to the prevention and combating of bribery and corruption. In addition, each Party shall ensure that it shall not: –
30.1.1 engage in bribery or corrupt activities;
30.1.2 offer gifts to any of the Client/Fenix Personnel, whether directly or indirectly through third parties, in an attempt to influence the person receiving the gift;
30.1.3 make improper payments to governments or regulatory authorities with the view to facilitating or expediting the performance of governmental or regulatory action which are in any way related to the Services; or
30.2 accept from the other, its third-party service providers, Affiliates, or Personnel gifts/hospitality, whether directly or indirectly, that are aimed at influencing the person receiving the gifts/hospitality.

 

31. NON-CIRCUMVENTION
31.1 The Client may not circumvent Fenix and approach a third party with the concepts and ideas created by Fenix, with the intention of that third party utilising such Content and ideas in any development or deliverables, in place of and to the exclusion of Fenix.
31.2 The Client agrees that no attempt (either itself directly or through or by any intermediary or any other person, directly or indirectly associated in any way with either Party) shall be made through any structure, mechanism, subterfuge, or in any other way whatsoever to: –
31.2.1 Circumvent, liaise, correspond, or communicate in any shape or form whatsoever with Fenix’s sub-contractors, freelancers or any party associated with Fenix; and/or
31.2.2 not to secure, or attempt to secure any rights for itself, currently or in future, enjoyed by Fenix in terms of the Agreement.
31.3 The Parties agree that any breaches of the aforementioned, will result in the Client being liable for and paying any and all claims, damages, expenses and/or penalties including liquidated damages, sustained, or incurred by Fenix, as a result. The provisions of this non-circumvention clause shall remain in force indefinitely from date hereof, notwithstanding the termination or expiry of this Agreement.

 

32. GENERAL
32.1 The Agreement constitutes the entire agreement between the Parties in respect of the subject matter of the Agreement.
32.2 No amendment or modification to the Agreement shall be effective unless in Writing and Signed by authorised signatories of both Client and Fenix.
32.3 No granting of time or forbearance shall be, or be deemed to be, a waiver of any term of the Agreement and no waiver of any breach shall operate as a waiver of any continuing or subsequent breach.
32.4 If the whole or any part of a term of the Agreement is void or voidable by either Party or unenforceable or illegal, the whole or that part (as the case may be) of that term, shall be severed, and the remainder of the Agreement shall have full force and effect, provided the severance does not alter the nature of the Agreement between the Parties.
32.5 The Agreement shall be governed and construed according to the laws of the Republic of South Africa.
32.6 Neither Party will make or issue any formal or informal announcement or statement to the press in connection with the Agreement, without the prior Written consent of the other Party.