It is understood and agreed to that the below-identified discloser of confidential information may provide certain information that is and must be kept confidential. To ensure the protection of such information, and to preserve any confidentiality necessary under patent and/or trade secret laws, it is agreed that:
1. The Confidential Information to be disclosed can be described as and includes:
Invention description(s), technical and business information relating to proprietary ideas and inventions, ideas, patentable ideas, trade secrets, drawings and/or illustrations, patent searches, existing and/or contemplated products and services, research and development, production, costs, profit and margin information, finances and financial projections, customers, clients, marketing, and current or future business plans and models, regardless of whether such information is designated as “Confidential Information” at the time of its disclosure.
2. The Recipient agrees not to disclose the confidential information obtained from the discloser to anyone unless required to do so by law.
3. This Agreement states the entire agreement between the parties concerning the disclosure of Confidential Information. Any addition or modification to this Agreement must be made in writing and signed by the parties.
4. If any of the provisions of this Agreement are found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision(s) shall be deemed modified to the limited extent required to permit enforcement of the Agreement as a whole.
WHEREFORE, the parties acknowledge that they have read and understand this Agreement and voluntarily accept the duties and obligations set forth herein.
TERMS OF SERVICE
Terms & Conditions Of Service Agreement
1.The Customer intends concluding an agreement with MARKET MAGNET CONSULTING in terms of which MARKET MAGNET CONSULTING will be contracted to undertake all or in part the following services as set forth in the quote or proposal submitted or presented by MARKET MAGNET which is including for and on behalf of the Customer.
2.The Customer in return for the provision of such services agrees to pay to MARKET MAGNET CONSULTING an agreed fee.
3.The parties wish to record the terms of their agreement in writing as follows.
Different services and products supplied by MARKET MAGNET CONSULTING carry predefined associated durations. The terms stipulated in the following clause is derived as set forth in the quote or proposal submitted or presented by MARKET MAGNET CONSULTING:
1.This agreement will commence on the date of digital signature by the Customer hereto or deemed agreed to by usage of the services of Market Magnet Consulting or verbal arrangement and shall endure for an initial period of as proposed by the timeframe or milestone item of the payment structure unless otherwise agreed.
2.Thereafter this agreement will automatically be renewed at agreed rates referred to in the system and maintenance item of the payment structure for successive periods of 1 (one) month, unless either party has provided to the other 1 (ONE) month’s written notice of its intention to terminate this agreement, which notification is to be addressed to the respective parties domicilium addresses.
3.Should the Customer terminate this agreement at any time prior to the aforesaid initial phase of the project, the Customer agrees to remain liable to MARKET MAGNET CONSULTING for the remainder of the entire initial period, regardless of early termination for whatsoever reason. Thereafter the cancellation fee to the value of 1 months implementation and maintenance fee will apply. This fee is to be settled prior to the handover of all data and materials related to the project.
4.All other such supplied services are carried out on a project by project basis unless otherwise agreed upon to which clause 2 and 3 apply.
1.The Customer shall upon acceptance of this agreement immediately become liable to effect payment to MARKET MAGNET CONSULTING of initial setup fees as agreed to in the quotation/estimate which has been agreed upon by any or all of the following: signature, digital signature, verbal or usage of the services of Market Magnet Consulting.
2.Thereafter and commencing 2 (two) days from the date upon which the Customer affixes its signature hereto or agreement types as listed in 2.1, the Customer shall become liable to effect payment to MARKET MAGNET CONSULTING of a monthly instalment fee of the system and maintenance costs as agreed to in the quotation which has been signed off, or agreed to by any of the selected options listed in the order and/or estimates preceding this agreement which includes but is not limited to additional projects throughout the working relationship. Additional projects will be presented to the client and agreed upon prior to invoicing and thereafter payment is due in advance prior to the commencement of the project. If payment has been delayed for any reason whatsoever, the commencement of any project will only commence once payment reflects in the Market Magnet bank account.
3.Thereafter and upon the inception of each renewal period of this agreement, the monthly installment fee shall escalate annually by an amount agreed to between the parties, or failing such agreement by no later than 30 (thirty) days prior to the termination of any period, by the then prevailing CPI rate, aggregated over the previous 12 (twelve) month period.
4.The Customer agrees to afford MARKET MAGNET not less than 7 (seven) business days to effect any requested updates or project planning, prior to the launch date of any such update or project. For the purposes of this agreement, a business day will be defined as any day not including a weekend or a public holiday. There will be no additional charge to effect updates to the client, same to be included in the monthly fee payable by the Customer.
1.The Customer agrees within a period of 7 (seven) days commencing from the date of signature of this agreement by the Customers to provide MARKET MAGNET CONSULTING with:
2.the necessary resources, be it a time or intellectual property or persons pertaining to the projects.
3.copies of all the Customer’s corporate identities, including but not limited to company logos, company fonts, and the like.
4.any other materials needed and/or information such as creative briefs etc, to complete the project timeously.
5.Any delay in delivery from Market Magnet or in the delivery of the needed materials will not constitute the withholding of payments in any regard nor will the client be able to hold Market Magnet Consulting liable for any refund or reimbursement whatsoever.
5.ADDITIONAL OBLIGATIONS OF THE CUSTOMER
1.The Customer shall take whatever steps are necessary to secure transfer of its domain to the MARKET MAGNET server.
2.The Customer agrees that any instructions which it wishes to provide MARKET MAGNET with shall be made via email, at the email address communicated by MARKET MAGNET to the Customer.
3.Where the Customer wishes to utilise its existing website on MARKET MAGNET’s server, the Customer agrees that it shall first provide MARKET MAGNET with the written permission of its previous service provider, so to act.
6.OWNERSHIP AND CONTROL
1. It is agreed that all project results and ancillary intellectual property thereto, including the design of such websites, promotional items and strategies shall be the property of MARKET MAGNET prior to settlement of any outstanding invoices, (outstanding invoices may include any and all initial phase items, monthly system and maintenance fees and/or additional project costs and/third party costs) after which ownership shall be granted to the Customer, subject to all outstanding fees (should there be any) be paid up in full to MARKET MAGNET.
1. The Customer agrees to indemnify and hold MARKET MAGNET harmless in the event that MARKET MAGNET is unable to attend to any of its obligations in terms of this agreement arising from:
2. any matter beyond its control;
3. vis major;
4. any strikes, lock-outs or other industrial action;
5. any power cuts, termination of municipal services or the like, for which it is not responsible;
6. arising from any failure on the part of the Customer to provide MARKET MAGNET with the requisite monthly payments, initial set up costs, or any other amount to which the Customer may become liable.
7. a failure on the part of the Customer to provide MARKET MAGNET where required with instructions, approvals, and costing submissions and payments on a timeous basis;
8. any act or omission, beyond the control of MARKET MAGNET, or in respect of which MARKET MAGNET could not reasonably have anticipated the promulgation of such act, omission or matter.
9. MARKET MAGNET hereby undertakes to create a daily back-up of the entire database of the project. In the event of any server failure, MARKET MAGNET confirms that the website will be migrated to a back-up server to remain active and online indefinitely.
1.In the event of the Customer breaching any provision of this agreement or failing on due date to effect payment of the entire amount of any cost due and owing to MARKET MAGNET, MARKET MAGNET shall become entitled without any prejudice to any other rights it may have, to undertake the following:
2.immediately to suspend the provision of all further services to the Customer and in this regard the
Customer agrees to indemnify and hold MARKET MAGNET harmless should it suffer any damages arising from the termination or suspension of such services;
3.to claim for specific performance; and
4.to cancel this agreement, and to secure immediate payment from the Customer of the early termination fee.
5.All without excluding MARKET MAGNET’s rights to a claim in damages arising from the breach by the Customer aforestated.
9.DEADLOCK AND DISPUTE
1.Save in respect of those provisions of the agreement which provide for their own remedy arising out of or in connection with this agreement, any dispute shall be referred for determination to an expert in accordance with the provisions of this clause 9.
2.The expert shall:
3.if the matter in issue is primarily an accounting matter be an independent practicing chartered accountant of not less than 10 (ten) years’ standing;
4.if the matter in issue is primarily a legal matter, be a practicing counsel of not less than 10 (ten) years standing as such and practicing at the Johannesburg Bar;
5.if the matter in issue is any other matter, be any other suitably qualified independent person, agreed upon by the parties or failing Agreement, appointed by the President for the time being of the Johannesburg Bar Council or his successor-in-title.
6.The expert may decide the matter submitted to him according to what he considers just and equitable in the circumstances.
7.The expert shall have all powers necessary to investigate and make a ruling including the powers to make interim awards.
8.Any hearing by the expert shall be held in Johannesburg or Sandton or such other place agreed by the parties unless the expert determines that it is more convenient or equitable that the hearing takes place elsewhere, in which event the hearing shall be held in the place so determined by the expert.
9.The parties shall use their best endeavours to procure that the decision of the expert shall be given within 30 (thirty) days or so soon thereafter as is possible after it has been demanded.
10.The decision of the expert shall be final and binding on the parties affected thereby, shall be carried into effect and may be made an order of any competent court at the instance of any party.
11.This clause constitutes an irrevocable consent by the parties to any proceedings in terms thereof and no party shall be entitled to withdraw therefrom or to claim at any such proceedings that it is not bound by this clause.
12.This clause shall not preclude any party from obtaining relief by way of motion proceedings on an urgent basis or from instituting any
interdict, injunction or any similar proceedings in any court of competent jurisdiction.
13.Save where expressly provided for in this clause 9, the provisions of the Arbitration Act 1965 as amended shall not apply in respect of this clause or any other provision of this Agreement.
14.This clause is severable from the rest of this Agreement and shall remain in effect even if this Agreement is terminated for any reason.
15.MARKET MAGNET shall be entitled at its sole election and discretion to institute action out of any court having jurisdiction, and in this regard, the Customer agrees that should the amount outstanding by the Customer to MARKET MAGNET exceed the jurisdiction of the Magistrate’s Court, the Customer hereby agrees to allow MARKET MAGNET to institute action in the High Court having jurisdiction. All costs incurred by MARKET MAGNET to be paid by the Customer on the attorney and client scale.
10.DOMICILIUM CITANDI ET EXECUTANDI
1.The parties chose as their domicilium citandi et executandi for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature, including the exercise of any option the following addresses:
2.Market Magnet Consulting, 57 Cherry Drive Randpark, Randburg, Gauteng, South Africa, 2194, Email: firstname.lastname@example.org, Fax: 086 604 4413 3.4. Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if in writing but it shall be competent to give notice by telefax or e-mail.
5.Any party may by notice to any other party change the physical address chosen as its domicilium citandi et executandi vis-à-vis that party to another physical address provided that such address is within the Republic of South Africa or its telefax or e-mail number or address, provided that the change shall become effective vis-à-vis that addressee on the 7th (seventh) business day from the deemed receipt of the notice by the addressee.
6.Any notice to a party:
8.delivered by hand to a responsible person during ordinary business hours at its domicilium citandi et executandi shall be deemed to have been received on the day of delivery; or
9.sent by telefax or e-mail to its chosen telefax number or e-mail address stipulated in clause 10.1 shall be deemed to have been received on the date of dispatch (unless the contrary be proved).
10.Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
1.No alteration or variation or adding to or deleting from this agreement shall be of any force or effect unless in writing and signed by both parties. 11.2 This agreement constitutes the whole agreement between the parties in regard to the subject matter hereof, and no warranties or representations of any nature whatever in regard thereto, other than as set out in this agreement shall have been given by either of them and shall be of any force or effect.
2. No relaxation or indulgence which any party may show to the other party to this agreement shall in any way prejudice or be deemed to be a waiver of its rights hereunder.
3.No indulgence which any party (“the grantor”) may grant to any of the others (“the grantee”) shall constitute a waiver of any of the rights of the grantor, who shall not thereby be precluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
Acceptance of this proposal/estimate/quote in terms of this agreement digitally signed on the iPad in the presence of a Market Magnet Consultant or on a direct print and faxed to Market Magnet or verbal or usage of the services of Market Magnet Consulting for and on behalf of THE CUSTOMER, he being duly authorised thereto.