IMBUE TECHNOLOGIES (“Imbue Technologies”), a (PTY) Ltd in South Africa (2015/005609/07) and with offices at 34 Wesley Street, Strand 7140, Cape Town, and CLIENT means the person or entity described as the Client on the Cost Estimate provided per job.
The Client hereby engages Imbue Technologies, which engagement Imbue Technologies hereby accepts, to provide Services and deliver Deliverables subject to the terms and conditions set out below and in the cost estimate and roll-out plans provided. The Parties agree that all future work or mandates given by the Client to Imbue Technologies shall unless otherwise agreed in writing between the Parties be governed by the terms and conditions set out in this Agreement.
In this Agreement, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:
“Accepted Estimate” means a Cost Estimate accepted by the Client in accordance with clause 4.3;
“Agreement” means this agreement, including each Accepted Estimate and document referred to herein, subject to any amendments or variations in accordance with clause 17.8;
“Imbue Technologies Proprietary Material” includes any product, document, business process, text, artwork, trade mark, branding, logo, slogan, design, still, graphic, video, photograph, sound recording, script, music, picture, document, software and/or other data or material of any nature whatsoever, and all right, title and interest therein (including but not limited to, the underlying copyright in any source code or business methodology associated therewith and all other Intellectual Property Rights therein) which is used, owned, developed and/or created by or for, or licensed to, Imbue Technologies at any time;
“Business Day” means any day other than a Saturday, Sunday or official public holiday in South Africa;
“Commencement Date” means, unless otherwise agreed between the Parties, the date of signature of this Agreement by the Party last in time to do so;
“Deliverables” means any creative work, strategy, proposals, presentations, press releases, reports, copy, documents, data or other materials developed by Imbue Technologies expressly, specifically and exclusively for the Client in terms of an Accepted Cost Estimate but which, for the avoidance of doubt, excludes Imbue Technologies Proprietary Material;
“Cost Estimate” means a quotation, proposal or cost estimate issued by Imbue Technologies to Client in respect of Services to be provided and/or Deliverables to be delivered;
“Intellectual Property” means all patents, rights to inventions, copyright and related rights, all other rights in the nature of copyright, trade marks, trade names and domain names, business names, logos, service marks, moral rights, know-how, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights and any other intellectual property rights (including but not limited to moral rights), in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals, extensions or revivals of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future and in any part of the world (and “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property);
“Parties” means Imbue Technologies and the Client and “Party” shall mean either one of them;
“Services” means, subject to the provisions of this Agreement, the services specified, and to be provided, by Imbue Technologies and accepted by Client under this Agreement in an Accepted Estimate or as otherwise agreed in writing between the Parties; and
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
References to “company” shall be to any body corporate, wherever incorporated.
A reference to one gender shall include a reference to the other genders.
Words in the singular shall include the plural and vice versa.
References to statutory provisions shall be construed as references to those provisions as respectively amended or re-enacted or as their application is modified by other provisions (whether before or after the date of this Agreement) from time to time and shall include any provisions of which they are re-enactments (whether with or without modification).
References to clauses and schedules are to clauses to and Schedules of this Agreement. A reference to a paragraph is to a paragraph of the relevant Schedule.
Writing or written includes email.
Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words “without limitation” following them. The words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
The headings are inserted for convenience only and shall not affect the construction of this Agreement.
Except to the extent otherwise provided, each Accepted Estimate and each Schedule shall be construed and interpreted in accordance with the provisions of this agreement and in the event of a conflict between an Accepted Estimate and this agreement, the provisions of the relevant Schedule shall prevail (unless the parties otherwise agree in writing).
Prior to the commencement of any work by Imbue Technologies in connection with the Services and Deliverables, Imbue shall issue the Client with an Estimate specifying:
Prior to signature by the Client, each Estimate will be valid for 15 (fifteen) days from the date of issue thereof unless revoked or replaced by Imbue Technologies before the expiry of such period and prior to receipt by Brandnew of a copy thereof signed by the Client.
Upon acceptance and signature of an Estimate by the Client, such Estimate shall be an Accepted Estimate which shall henceforth be binding on the Parties and shall be subject to and construed in accordance with the terms and conditions of this Agreement.
In the event that the Client wishes to appoint Imbue Technologies to provide additional services, being services not already subject to an Accepted Estimate, Imbue Technologies shall issue the Client with a new Estimate in respect of such services in accordance with this clause 4.
An Accepted Estimate may amend the terms and conditions of this Agreement only with respect to the subject matter of such Accepted Estimate. Insofar as any Accepted Estimate specifically amends the provisions of this Agreement, such amended provisions in the Accepted Estimate shall prevail in respect of that Accepted Estimate only. Amendments to this Agreement of general application shall be dealt with in accordance with clause 17.8.
In the event of a conflict between the provisions of this Agreement and an Accepted Estimate, the provisions of the Accepted Estimate shall prevail.
In providing the Services, Imbue Technologies will take reasonable steps to understand the Client’s business and to familiarise itself with the market(s) within which the Client operates. To this end, the Client agrees to provide Imbue Technologies from time to time and without delay with any information, documentation, guidance and/or assistance (together, “Information”) that Imbue Technologies might reasonably require to provide the Services.
The Client authorises, and grants a license to, Imbue Technologies to use any proprietary Information furnished to Imbue Technologies in terms of clause 5.1 for the sole purpose of enabling Imbue Technologies to provide the Services and the Deliverables and warrants where necessary that all necessary third party consents have been obtained by the Client for such use.
Imbue Technologies shall deliver each Deliverable to the Client in accordance with the provisions of the relevant Accepted Estimate. Where such provision is not made in the Accepted Estimate, delivery shall be deemed to have occurred and risk in the Deliverable shall transfer upon physical or constructive delivery, submission, transfer or transmission (electronic or otherwise) of the Deliverable to the Client by Imbue.
Unless and/or to the extent otherwise provided in a relevant Accepted Estimate, Imbue Technologies shall issue invoices and the Client shall pay all fees, costs and disbursements set out in and in accordance with each Accepted Estimate in consideration of the relevant Services and/or Deliverables.
In the absence of provision for the method of payment in an Accepted Estimate, the Client shall pay to Imbue in respect of each Accepted Estimate:
All rates and fees quoted by Imbue Technologies are quoted exclusive of VAT and any other applicable taxes. Subject to clause 7.1, the Client shall render payment to Imbue in respect of VAT and any other applicable taxes concurrently with each underlying payment in terms of clause 7.1 and 7.2 on which the relevant VAT amount is calculated.
Late payments shall be subject to interest at the applicable prime rate of interest, calculated daily (based on a year of 365 days) and compounded monthly from due date until date of payment, which interest shall be payable by the Client to Imbue Technologies on demand.
All amounts payable by the Client to Imbue Technologies shall be paid in cleared funds, free of withholding, deduction, set-off or exchange, into Imbue’s banking account the details of which are as follows:
Unless otherwise expressly provided in this Agreement, the Parties’ liability to one another under this Agreement, howsoever arising, shall be limited to direct damages and losses only and in no event shall either Party be liable for any:
All communications between the Parties, and all information and other materials supplied to or received by either of them from the other (the “Confidential Information”) shall be kept confidential by the Parties unless or until the Party receiving the Confidential information (the “Receiving Party”) can reasonably demonstrate that the Confidential Information (or the relevant portion thereof):
The Parties shall use all reasonable endeavours to procure the observance of these restrictions and shall take all reasonable steps to minimise the risk of disclosure of Confidential Information by those persons required to possess any such information and who shall have access to such information, and will instruct those persons on the confidentiality of such information, ensuring that only they themselves and such of their employees and directors shall have the duty to treat the same as confidential.
The obligations contained in this clause 13 shall endure, even after the termination of this Agreement for whatever reason.
The Client acknowledges that, unless and until this Agreement, together with any Estimate, have been signed by the Client and returned to Imbue Technologies, Imbue Technologies shall not be required to perform any Services in terms of the relevant Estimate.
No relaxation or indulgence granted by either Party to the other shall be deemed to be a waiver of any of that Party’s rights in terms hereof, nor shall same be deemed to be a novation of the terms and conditions and nor shall same stop either Party from enforcing its rights hereunder.
No single or partial exercise or non-exercise of any right, power or remedy provided by this Agreement or by law shall preclude any other or further exercise of such right, power or remedy or of any other right, power or remedy.
The rights, powers and remedies provided by this Agreement are cumulative and, unless otherwise provided, are not exclusive of any rights, powers and remedies provided by law.
No agreement to vary, add to or cancel this Agreement (including any Accepted Estimate) shall be of any force or effect unless reduced to writing and signed on behalf of both Parties to this Agreement.