Terms & Conditions

 1.                  INTRODUCTION:

These terms and conditions (“Terms”) govern the agreement in respect of all services, processes, deliverables delivered, provided or executed by Digitlab Digital Strategy (Pty) Ltd (“Digitlab”) to/for you (the “Client”). (“the Agreement”) Any quotations issued by Digitlab to the Client and accepted by the Client shall be deemed to be incorporated into these Terms.

2.                  DEFINITIONS:

 

Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:

2.1.             “Client” means, you, the party engaging with Digitlab on any matter, including, for purposes of receiving Services from Digitlab;

 

2.2.             “CPA” means the Consumer Protection Act 68 of 2008;

 

2.3.             “Data” means any data, including personal information as defined in the Protection of Personal Information, Act 4 of 2013, the Electronic Communications, Act 25 of 2002 and any other applicable legislation in the jurisdiction where the Services are to be provided, supplied, stored, collected, collated, accessed, retained or processed by Digitlab on behalf of the Client, irrespective of the media or form;

 

2.4.             “Data Protection Legislation” means the laws relating to data protection in South Africa, including, but not limited to, the Electronic Communication and Transactions Act 25 of 2002, the Consumer Protection Act 68 of 2008 and the Protection of Personal Information Act 4 of 2013;

 

2.5.             “Data Subject” means any person to whom the specific personal information/Personal Data relates, as contemplated in POPI;

 

2.6.             “Deliverables” means any deliverable recorded in the Services provided by Digitlab to the Client including any designs, software, programs, creative work, copy, documents, data or other materials developed by Digit Lab expressly, specifically and exclusively at the request and instance of for the Client in terms of these Terms of Service;

 

2.7.             “Digitlab” means Digit Lab Digital Strategy (Pty) Ltd with registration number 2013/030387/07 who carries on business at 2nd Floor, 201 Beacon Rock, 21 Lighthouse Road, Umhlanga Rocks, 4319;

 

2.8.             “ECTA” means the Electronic Communication and Transactions Act 25 of 2002;

 

2.9.             “IP Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, trade, business and domain names, rights in trade dress or get-up, rights in designs, proposals, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;

 

2.10.           “Parties” means the Client, and Digitlab;

 

2.11.           “Party” means the Client or Digitlab;

 

2.12.           “Personal data” means all personal data including, inter alia-

 

2.12.1.      Race, sex, gender, sexual orientation, pregnancy, marital status, nationality, ethnic or social origin, colour, age, physical or mental health, well-being, disability, religion, conscience, belief, cultural affiliation, language and birth;

 

2.12.2.      Education, medical, financial, criminal or employment history;

 

2.12.3.      Names, identity number and/or any other personal identifier, including any number(s), which may uniquely identify a data subject, account or client number, password, pin code, customer or data subject code or number, numeric, alpha, or alphanumeric or configuration of any nature, symbol, e-mail address, domain name or IP address, physical address, cellular phone number, telephone number or other assignment;

 

2.12.4.      Blood type, fingerprint or any other biometric information;

 

2.12.5.      Personal opinions, views or preferences;

 

2.12.6.      Correspondence that is implicitly or expressly of a personal, private or confidential nature (or further correspondence that would reveal the contents of the original correspondence); and

 

2.12.7.      Corporate structure, composition and business operations (in circumstances where the Data Subject is a juristic person) irrespective of whether such information is in the public domain or not.

 

2.14.         “POPI” means the Protection of Personal Information Act 4 of 2013;

 

2.15.           “Processing” means the collection, receipt, recording, organisation, collation, storage, updating or modification, testing of, retrieval, alteration, consultation or use;

 

2.15.1.      dissemination by means of transmission, distribution or making available in any other form by electronic communications or other means; or

 

2.15.2.      merging, linking, blocking, degradation, erasure or destruction; and “Process” has a corresponding meaning.

 

2.16.           “Project Contract” means the specific services rendered by Digitlab to the Client;

 

2.17.           “Service Level Information Document” means the document in which the Client has inserted all of the Client’s contact information which forms part of these Terms.

 

2.18.           “Services” means the performance of the services, functions, responsibilities, development and delivery of Deliverables by Digitlab including but not limited to:  

 

2.18.1.      Creative/Strategy/Consulting Services– digital business consulting, creative direction, strategy, art direction, video production/storyboarding, user experience design and general consulting;

 

2.18.2.      Social/Content– Copywriting/content writing or editing, blog writing/editing, community management;

 

2.18.3.      Online Marketing Services – the promotion of product and services through online marketing channels including but not limited to search engine optimisation (SEO) advertising, research, backlinking, design and copywriting.

2.18.4.      Development– App/mobile development, senior web development. junior web development, web/app content uploads.

 

2.19.            “The Digitlab Proprietary Material” means any product, software, document, business process, text, artwork, trade mark, branding, logo, slogan, design, still, graphic, video, photograph, sound recording, script, music, picture, proposal, document 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 IP Rights therein) which is used, owned, developed and/or created by or for, or licensed to, Digitlab at any time, (including without limitation any of the aforementioned data or material which is created by Digitlab for its own use and/or which existed prior to the execution of any Services.

2.20.           “VAT” means Value-Added Tax.

3.                  APPOINTMENT AND DURATION:

 

3.1.             The Client shall be bound by these Terms the moment you acknowledge acceptance of these Terms and subject to Clause 14, will terminate once Digitlab has delivered the Services to the Client, the Client has paid for such Services in full or the Terms are terminated in line with Clause 9 below.

4.                  SERVICES:

 

4.1.             Digitlab shall deliver the Services to the Client as listed in the quotation issued by Digitlab to the Client, which quotation has been duly accepted by the Client.

5.                   HOURLY RATE CHARGES

5.1.             In consideration for its Services, Digitlab will charge for its Services as per its hourly rates set out in Digitlab’s quotation/s issued to the Client.

5.2.             The Client acknowledges that it accepts Digitlab’s rates.

5.3.        The Client acknowledges that Digitlab’s rates exclude VAT, which shall also be payable by the Client to Digitlab. 

5.4.            The Client acknowledges that Digitlab’s rates shall be billed in 15 (fifteen) minute increments or part thereof. 

5.5.          The Client further acknowledges that Digitlab’s hourly rates are subject to revision on an annual basis from 1 January of each year. 

5.6.          Digitlab shall provide the Client with a written notice of its updated rates however the failure of Digitlab to do so will not release the Client from its obligations to compensate Digitlab for its Services.

6.                  PAYMENT TERMS:

 

6.1.             Digitlab shall issue an invoice for the services rendered and the Client shall pay the total fee specified upon presentation of the invoice.

 

6.2.             Should any fees not be paid upon presentation of the invoice unless otherwise agreed to in writing, Digitlab will not release or share any Deliverables. Digitlab retains the right to, including but not limited to, take any web-site, social media platform, digital advertising platform or any other digital asset offline and suspend the delivery of the Services for the period the fees remain unpaid;

 

6.3.             All amounts payable by the Client to Digitlab shall be paid into Digitlab’s banking account or such other account as Digitlab may notify the Client in writing from time to time.

 

6.4.             Any additional costs incurred by Digitlab due to outsourcing, advertising or third party suppliers contracted for Client work, will be for the Clients account.

 

7.                  RETAINERS AND/OR ADDITIONAL OUT OF SCOPE PROJECT WORK

7.1.             Subject to the quotation and Services agreed on between the Parties, the Client may be required to provide Digitlab with monthly retainer fees to the number of hours set forth in these Terms.

7.2.         Payment of retainer fees by the Client are payable in advance of the Services and payable on presentation of the invoice.

7.3.            Retainer fees shall be reviewed 2 months prior to the expiration of a retainer duration as agreed between Digitlab and the Client.

7.4.             In the event that the Client requires additional Services, beyond the scope of the Project Contract, the additional Services shall be negotiated separately to these Terms and may require an additional quotation or a new Agreement being entered into between the Parties.

7.5.             Out of scope work beyond the Project Contract and rendered beyond the retained number of hours will be billed at Digitlab’s full hourly rate according to the Service Category, or unless otherwise agreed to in writing by the Parties.

7.6.        Advertising spend that is under or over utilised will carry over to the next month accordingly

8.                  FURTHER DISBURSEMENTS/EXPENSES

 

8.1.         The Client shall compensate Digitlab for all disbursements reasonably incurred and properly vouched by Digitlab in the performance of its duties under these Terms, provided that such disbursements have been pre-approved by the Client in writing. Digitlab shall issue invoices for any such disbursements in arrears in the month in which the disbursement was incurred and Client shall make payment thereof upon presentation of the invoice.

 

8.2.            Disbursements/expenses incurred by Digitlab on behalf of the Client are not included in Digitlab’s hourly rates and will be billed by Digitlab to the Client. These expenses/disbursements may include, but are not limited to stock photography, video editing, voice over recordings, studio fees, photography and/or hosting fees.

 

8.3.             Subject to clause 8.4 below, the disbursements/expenses referred to in 8.1. above will incur a 20% (twenty percent) mark-up payable to Digitlab for the administration and co-ordination of any third party suppliers.

 

8.4.         Digitlab shall be entitled to 16.5% of the value of any advertising placed for Google, Facebook, Twitter, Instagram and LinkedIn.

9.                  SERVICE CHARGES AND PAYMENTS FOR ONCE-OFF PROJECTS

 

9.1.             Unless otherwise agreed to in writing, the Client shall pay Digitlab a 50% (fifty percent) deposit prior to each Project Contract commencement. Once the Project Contract is complete, the balance outstanding shall be paid outside of the retainer.

 

9.2.             All project contracts include 2 (two) Client reverts. Any further changes required thereafter shall be charged at Digitlab’s hourly rate as per Digitlab’s quotation/s.

 

10.                  DIGITLAB’S OBLIGATIONS

 

10.1.             Digitlab shall perform the Services for and on behalf of the Client to the highest expertise, skill, ability, know-how and standard possible.

 

10.2.             Digitlab shall ensure that the Services are supervised by competent and qualified personnel.

 

10.3.             Digitlab will make sufficient personnel available to the Client between 08h30 to 17h00 (GMT +2) from Monday to Friday, excluding public holidays.

 

10.4.             Should the Client require Services on an after-hours basis, weekends or public holidays, the Client shall communicate such request seven days in advance. After-hours services shall be charged x1.5 times Digitlab’s normal rates and x 2 Digitlab’s normal rates on Sundays and public holidays.

 

10.5.             Digitlab shall administer and comply with all statutory or other legal provisions relating to the provision of the Services including, without limitation to the CPA, ECT and POPI.

 

10.6.             Digitlab agrees and undertakes that it shall, at its sole expense, for the duration of the Agreement:

 

10.6.1.         refrain from acting in any manner that could adversely affect the Client’s goodwill and reputation;

10.6.2.         not give any warranty or undertaking, other than with the Client’s express written consent; and

10.6.3.         keep full and proper records pertaining to its obligations arising from the Agreement. .

10.6.4.         The risk of loss or damage to, and ownership on and to each Deliverable shall only pass to the Client on either, acceptance by the Client of a Deliverable in writing, alternatively, payment by the Client of the Service charges for such Deliverables, whichever occurs first.

11.                  COMMUNITY MANAGEMENT SERVICE DELIVERY

 

11.1.             Digitlab shall notify the Client Marketing Department in writing of all complaints related to the Services performed within 24 (Twenty-four) hours of receipt of a complaint though a channel managed by Digitlab on behalf of the Client;

 

12.                  CLIENT’S OBLIGATIONS

 

12.1.             The Client shall for the purpose of facilitating performance by Digitlab of the Services allow

Digitlab and its employee’s access to Client’s systems and data, and timeously disclose to Digitlab all information which Digitlab requires from time to time to carry out the Services.

 

12.2.             Unless specified otherwise, the Client shall provide Digitlab with all content, outlines, photographs, project images or any other required material in the format requested by Digitlab, and complete information necessary for Digitlab to perform or complete the agreed Services in respect of the Project Contract.

 

12.3.             The Client acknowledges that the accuracy of the information supplied to Digitlab is the sole responsibility of the Client, and that Digitlab shall not be held responsible and shall not be held liable for the results of Services performed based on inaccurate, incomplete, or untruthful information furnished by the Client.

 

12.4.             The Client undertakes to respond to any questions, requests, and/or communications from Digitlab within 24 hours of receiving any question, request and/or communication from Digitlab.

 

 

13.                  PROOFING AND ACCURACY

 

13.1.             While Digitlab does have stringent quality control and proof-reading process, the Client shall assume full responsibility for acceptance of Services performed and agreed upon, as well as final proofing and accuracy. The Client shall provide written approval of all Services incurred before any implementation occurs. If further amendment or changes are required after a final written approval is made by the Client, the Client shall incur additional costs according to Digitlab’s hourly rates.

 

14.                    LIASON BETWEEN PARTIES

 

14.1.             The Client shall communicate requests by e-mailing Digitlab’s appointed representative as detailed in Digitlab’s quotation.

 

14.2.             The Client shall nominate a representative through whom all communications between the Parties shall be directed. 

 

14.3.             Digitlab and the Client may change its representative within 2 week’s written notice to the other Party.

 

15.                  THIRD-PARTY SERVICE PROVIDERS/FREELANCERS

 

15.1.             Digitlab may use third-party service providers/freelancers to carry out the Services for the Client.  

 

15.2.             The Client agrees to Digitlab’s use of third-party service providers/freelancers.

 

15.3.             Digitlab may include in their quotations the setup, maintenance and/or cost of such third-party services.

 

15.4.             Digitlab will not be liable to the Client for any interruption, non-performance or cancellation of the provision by third parties of any such services.

 

15.5.             The Client waives and abandons any claim they may have of whatsoever nature and howsoever arising out of any act and/or omission of the third-party service providers/freelancers,

16.                  THIRD PARTY SERVICES/HOSTING

 

16.1.             Digitlab use high performance web servers hosted by first class Hosting Provider Companies

 

16.2.             By agreeing to these Terms, you also acknowledge that you have read the terms and conditions, and privacy policies of our Hosting Provider Companies and our third-party services providers (which the Client can access by clicking the links provided) these include:

 

16.2.1.         Website Hosting and Web Services Terms;

16.2.2.         Digitlab hosts its clients websites on two service providers whose terms of service and privacy policies impact the Digitlab Terms and Conditions;

16.2.3.         Hostking Privacy Policy and Terms;

16.2.4.         AWS Privacy Policy and Terms;

16.2.5.         AWS Data Privacy FAQ;

16.2.6.         Heroku Privacy and Terms of Service;

16.2.7.         Mailchimp Privacy and Terms of Service;

16.2.8.         SendGrid (Twilio) Privacy and Terms of Service;

16.2.9.         Vimeo Privacy and Terms of Service;

16.2.10.      Clickit Email Privacy and Terms of Service;

16.2.11.      Moz Privacy and Terms of Service;

16.2.12.      Sproutsocial, Terms, Security, Responsible Disclosure and Privacy Policies;

16.2.13.      Microsoft 365 Terms of Service;

16.2.14.      Gravity Forms Terms of Service;

16.2.15.      Elementor Terms of Service; and

16.2.16.      Google Marketing Suite Terms of Service.

 

17.                  ADVERTISING TERMS

 

17.1.             As suppliers of Google, Facebook. Twitter and Instagram Advertising, Digtlab are bound by the following terms and the Client agrees to be bound by these terms to:

 

17.1.1.         Google Advertising Policies;

17.1.2.         Facebook Advertising Policies;

17.1.3.         Twitter Advertising Policies; and 

17.1.4.        Instagram Advertising Policies.

  

18.               INTELLECTUAL PROPERTY RIGHTS

 

18.1.        All copyright, title and interest in and to any document produced, content created, system developed or process designed, devised or modified by Digitlab in the course of performing the Services under this Agreement shall vest exclusively in Digitlab and shall remain so vested during and post termination of this Agreement.  All the Client’s Intellectual Property shared with Digitlab during the term of this Agreement will also remain the Client’s property and nothing contained herein should be interpreted as providing transfer thereof to Digitlab.

 

18.2.       The Digitlab Proprietary Material may not be used with any other product or service without Digitlab’s prior written consent.

 

18.3.           Digitlab’s trademarks and/or copyrights may not be used in any way that may cause confusion, or in a way that prejudices or discredits Digitlab.

 

19.               DATA AND SECURITY

 

19.1.      Digitlab has security measures in place and data retention with third parties who are POPI compliant.

 

19.2.          Digitlab hard drives are encrypted and we have applied multi-factor authentication (MFA) on all 365 accounts.

20.                  CONFIDENTIALITY AND NON-DISCLOSURE

 

20.1.     The Parties acknowledge that any information supplied in connection with these Terms or in connection with Digitlab or with each other’s technical, industrial or business affairs which has or may in any way whatsoever be transferred or come into the possession or knowledge of any other of them (“Receiving Party”) may consist of confidential or proprietary data, disclosure of which to or use by third parties might be damaging to the party concerned.

 

20.2.     The Receiving Party therefore agrees to hold such material and information in the strictest confidence, to prevent any use thereof other than for the purposes of these Terms and to release it only to such properly authorised directors, employees or third parties requiring such information for the purposes of these Terms or the ordinary, proper and bona fide conduct of the affairs of Digitlab.

 

20.3.             The undertakings and obligations contained in this clause do not apply to information which:

 

20.3.1.         is publicly available at the date of disclosure or thereafter becomes publicly available from sources other than the Parties;

 

20.3.2.         the Receiving Party demonstrates that it was already in its possession prior to its receipt by or disclosure to such Receiving Party;

 

20.3.3.         is required by law or any regulatory authority to be disclosed;

 

20.3.4.         after being disclosed to the Receiving Party is disclosed by any other person to the Receiving Party otherwise than in breach of any obligation of confidentiality.

 

20.4.     The Parties shall take such precautions as may be necessary to maintain the secrecy and confidentiality of such material and information, its shareholders, directors, employees, agents, and/or the directors or employees or agents of any assignee, sub-contractor or distributor or any other person to whom any such confidential or proprietary data may have been or will be disclosed. The Parties shall during the period of this Agreement and in perpetuity thereafter, and regardless of the reason for termination of this Agreement, not use for its own benefit or for the benefit of any other person, or divulge or communicate to any person or persons, except to the extent required by law, any of the confidential information which it may receive or obtain in relation to the other party’s affairs, clients, suppliers and service providers.

 

20.5.             The Client shall not discuss the merits or demerits of Digitlab with its other suppliers, and Digitlab shall not discuss the merits or demerits of Client with its other clients.

 

21.                  PROTECTION OF PERSONAL INFORMATION (“POPI”):

21.1.             Digitlab will only Process or disclose Personal Data in accordance with applicable laws, in terms of these Terms and in accordance with any written instructions, requirements or specific directions from the Client.

 

21.2.             Digitlab will ensure that all staff members of Digitlab and any other persons that has access to the Client’s Personal Data are bound by the appropriate legally binding obligations in relation to the Client’s Personal Data.

 

21.3.             Digitlab will take appropriate, reasonable and technical measures to ensure that the integrity of the Client’s Personal Data in possession or under control of Digitlab is secure and the Client’s Personal Data in possession or under control of Digitlab remains available to the Client as and when the Client needs it.

 

22.                  NOTIFICATION OF PERSONAL DATA SECURITY BREACH:

 

22.1.             Digitlab will notify the Client immediately when upon becoming aware that the Personal Data of a Data Subject has been accessed or acquired by an unauthorised person and take all appropriate steps to limit the compromise of Personal Data and to restore the integrity of the affected information systems as quickly as possible. Digitlab will assist the Client to report all relevant facts relating to the compromise and provide the Client with details of the Personal Data affected by the compromise.

 

22.2.             If Digitlab or any third-party to which the Personal Data has been disclosed pursuant to these Terms, is required by law, regulation or court order, to disclose or process any Personal Data, Digitlab will advise you thereof prior to disclosure or Processing.

 

22.3.             Subject to clauses 15, 16 and 17, Digitlab will not transfer Personal Data provided by the Client outside the Republic of South Africa unless the Client authorises such transfer in writing.

 

22.4.             On condition that undertakings provided by Digitlab and if content was approved or assumed to have been approved by the Client and was actually implemented, presented, published and/or communicated by Digitlab in such approved format, Digitlab will not be liable for any loss or damage of whatsoever nature and howsoever arising, including but not limited to, loss of profit and direct, indirect, incidental, special or consequential loss or damage, whether arising under contract, delict or otherwise, which may be suffered or incurred by the Client or any third-party as a result of the provision of the Services in terms of these Terms.

 

22.5.             Both Parties undertake to use Digitlab’s reasonable endeavours to procure that any of the other’s data operators (as defined in POPI), agents and contractors comply with the Data Protection Legislation and all other applicable data protection legislation and regulations about the performance of the others obligations and exercise of their rights under these Terms.

 

22.6.             Both Parties undertake-

 

5.6.1.         to treat the Personal Data as confidential information;

 

5.6.2.         not to use or knowingly permit any third-party to use, or have access to, the Personal Data for any purpose other than as is expressly permitted by these Terms;

 

5.6.3.         that Digitlab will not use Personal Data held by Digitlab pursuant to these Terms for any purpose that is inconsistent with those purposes notified to the relevant Data Subject on or before the time of collection of that Personal Data.

 

23.                  RETENTION AND DESTRUCTION:

 

23.1.             Digitlab will store all Personal Data which it processes for the minimum time periods stipulated by POPI in writing and shall be required to destroy all Personal Data relating to the Data Subject in compliance with the destruction time periods stipulated by POPI.

 

24.                   TERMINATION:

 

24.1.             Subject to 23.2 and 23.3 below, Digitlab or the Client may terminate the Agreement and/or Project Contract for any reason with one calendar months written notice will all amounts owing to Digitlab becoming immediately due and payable. Retainer fees shall be due in full for the intended month of given notice.

 

24.2.             Digitlab and/or the Client shall have the right to terminate this Agreement immediately, with all amounts owing becoming immediately due and payable, and without notice, in the following circumstances:

24.2.1.         if the other party commits any act of insolvency if committed by a natural person, would be an act of insolvency in terms of the Insolvency Act, 24 of 1936, as amended;

24.2.2.         if the other party is placed under business rescue, curatorship, liquidation or under a winding-up order, whether provisionally or finally, voluntarily or compulsorily; 

24.2.3.         if the other party takes any steps to be wound-up, liquidated or placed under business rescue whether provisionally or finally and whether compulsorily or voluntarily, other than any steps taken by such Party to be wound-up or liquidated pursuant to any bona fide restructuring where such Party remains solvent; 

24.2.4.         if the other party takes any steps to be deregistered in terms of the Companies Act 71 of 2008 (“Companies Act”);

 

24.2.5.         if any affected person in relation to the other party, takes any steps in terms of Chapter VI of the Companies Act, and for this purpose “affected person” shall bear the meaning ascribed to this term in section 128(1)(a) of the Companies Act;

24.2.6.         if the other party is unable to pay its debts;

24.2.7.         if such party enters into or proposes any composition or arrangement with its creditors generally; and/or 

24.2.8.         if anything, analogous to the foregoing occurs in any applicable jurisdiction, which is not dismissed in 20 (twenty) days.

24.3.             In the event that the Client “frustrates” the progress of the Project Contract with Digitlab then Digitlab will be entitled to give 14 days’ written notice to the Client of the Agreement being terminated. If the Client does not satisfactorily remedy the cause(s) of the frustration, within the 10 (ten) business day notice period, then Digitlab will have the right to terminate the Agreement. Digitlab will invoice the Client for the full value of the Services carried out to-date.

 

25.                  BREACH

25.1.             If a Party (the “Defaulting Party”) commits any material breach of these Terms and fails to remedy such breach within 10 (ten) Business Days, (the “Notice Period”) of written notice requiring the breach to be remedied, then the Party giving the notice (the “Aggrieved Party”) will be entitled, at its option:

25.1.1.         claim immediate specific performance of all or any of the Defaulting Party’s obligations under these Terms, with or without claiming damages, whether or not such obligation is falling due for performance; or 

25.1.2.         cancel this Agreement as between itself and the Defaulting Party, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the date on which the notice is given.  No party shall be entitled to cancel this Agreement unless the breach is a material breach going to the root of this Agreement, and:

25.1.2.1.              is incapable of being remedied by payment of money; or

25.1.2.2.                if it is capable of being remedied by a payment of money, the Defaulting Party fails to pay the amount concerned within the Notice Period. 

 

26.                  ARBITRATION

26.1.             Should any dispute arise between the Parties (“Dispute”) concerning the interpretation of this Agreement, or which relates to rights or obligations under this Agreement or any matter arising out of this Agreement in respect of a mechanism for the resolution of which is not provided for elsewhere in this Agreement, the Parties shall endeavour to resolve the Dispute by negotiation.

26.2.             This shall entail one of the Parties inviting the other in writing to meet and to attempt to resolve the Dispute within 10 Business Days.

26.3.             If the Dispute has not been resolved by such negotiation within 10 Business Days then the Parties or any one of them shall submit the Dispute to mediation to be administered by the Arbitration Foundation of Southern Africa (“AFSA”), upon such terms as agreed between the Parties and the secretariat of AFSA. The result of the mediation shall be the conclusion of a written settlement between the Parties, countersigned by the mediator, or failing that, a written recommendation by the mediator.

26.4.             The written recommendation of the mediator shall become final and binding within 10 Business Days of delivery thereof to the Parties, unless any of the Parties disputes the mediator’s recommendation by written notice to the other Parties within the aforesaid 10 Business Day period, in which event the Dispute shall be referred to arbitration in accordance with the provisions below. 

26.5.             Failing agreement as referred to above or in the event of either of the Parties furnishing a notice of dispute of within 10 Business Days of the mediator’s recommendation as envisaged above, the Dispute shall be submitted to arbitration by either party for final resolution in accordance with the rules of AFSA by an arbitrator appointed by AFSA, whose decision shall be final and binding.

26.6.             Unless otherwise agreed in writing by all the Parties, any such mediation or arbitration shall be held at a venue as agreed between the parties

26.7.             Any written settlement agreement, undisputed mediator’s written recommendation or arbitrator’s award may be made an order of the High Court.

26.8.             Notwithstanding anything to the contrary contained in this clause 18, any party shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent Court having jurisdiction. For the purposes of this clause and for the purposes of having any settlement, undisputed mediator’s recommendation or arbitrator’s award made an order of Court, each of the Parties hereby submits themselves to the High Court, Durban. 

26.9.             An undisputed mediator’s recommendation and an arbitrator’s award shall not be capable of appeal or review, and shall be final and binding. In the event that a dispute between the parties is no resolved by negotiation then it shall be resolved by arbitration.

27.               NON-SOLICITATION

27.1.           Unless otherwise agreed in writing between the Parties, no Party shall, for the duration of the Agreement and for a period of 12 (twelve) months after the expiration or termination thereof, for its own benefit or as a representative of, or agent for, any third party, persuade, induce, encourage, procure or solicit (or procure such persuasion, inducement, encouragement, procurement or solicitation) the employees of the other Party to:

27.1.1.      terminate his/her employment with the other Party with the intention to provide employment to said employee; or

27.1.2.      disclose any Intellectual Property of the other Party to any person not authorised by the owner of the Intellectual Property to receive it.

27.2.           Digitlab undertakes either during, or after termination of, this Agreement, not to engage, market to, encourage, induce or otherwise solicit, whether directly or indirectly, any person who, at any time during the duration of this Agreement, was a Customer without the prior written consent of the Client. Notwithstanding the foregoing, Digitlab agrees that all information pertaining to the Client is the Client’s Confidential Information, and therefore any use by Digitlab of such information in a manner not authorised by this Agreement shall constitute a breach by the Digitlab of the provisions of these Terms. 

28.                  DOMICILIUM AND NOTICES

28.1.    The Client chooses the physical address and e-mail address inserted in the Service Level Information Document as its domicilia citandi et executandi for all purposes arising from or pursuant to these Terms.

28.2.          Digitlab chooses as their domicilia citandi ex executandi for all purposes arising from or pursuant to these Terms as follows:

      28.2.1.      Address: 2nd Floor, 201 Beacon Rock, 21 Lighthouse Road, Umhlanga Rocks, 4319

     28.2.2.      E-mail: info@digitlab.co.za

28.3.        Any notice or communication required or permitted to be given in terms of this Agreement shall be           valid and effective only if in writing.

28.4.         A party shall be entitled to change its domicilium address from time to time, by way of written notice to the others specifying its new domicilium address provided always, however, that the new address is within the Republic of South Africa and is not a post office or post restante address.

 

28.5.             Any notice to a party: 

28.5.1.         sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its domicilium address shall be deemed to have been received on the 5th Business Day after posting (unless the contrary is proved)

28.5.2.         delivered by hand to a responsible person during ordinary business hours at its domicilium address shall be deemed to have been received on the day of delivery;

 

28.6.      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 address.

29.                  LIABILITY:

 

29.1.             Digitlab disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client uses such Services at your own risk.

 

29.2.       The Client understands and agrees that Digitlab will not be able to guarantee a specific set of results and there is accordingly no warranty as to fitness for purpose.

 

29.3.          Digitlab will not be liable for any loss or damages arising, whatever the cause, in accordance with these Terms.

 

29.4.          Should Digitlab be found to be liable to you for a particular act or omission then Digitlab’s liability will be limited to fees already paid by you on the Project Contract forming the subject of the dispute.

 

30.              INDEMNITY:

 

 

30.1.    The Client hereby indemnifies Digitlab from any loss, damage (either general, special or consequential), liability, claim, expense, costs or demand which may arise due the Client’s unlawful conduct, wilful misconduct and / or gross negligence.

 

30.2.          You indemnify and will keep Digitlab indemnified against any claim for infringement of intellectual property rights regarding any information given by you to Digitlab and against all costs, expenses and damages Digitlab may incur or become liable for because of such infringement.

 

30.3.          Digitlab will inform you, in writing, as soon as Digitlab have been made aware of any claim being made or action threatened or brought against Digitlab and will allow the Client, at the Client’s own expense, to continue with any litigation or negotiations that may follow for a settlement of the claim.

 

31.                  FORCE MAJEURE:

 

31.1.             If either Party is prevented or restricted from carrying out all or any of their obligations under these Terms because of a strike, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, shortage or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labours government interference (“the event”), the Party who is affected by this event will be relieved of their obligations under these Terms during the time the event carries on and shall not be liable for any delay or failure in the performance of any obligations under these Terms or loss or damage either general, special or consequential which the other Party may suffer due to the event.

 

31.2.             Once the event has ended the Party who is affected by the event must give notice to the other Party that such event has ended. Should the event continue for a period of more than 90 (ninety) days, the other Party will be allowed to immediately cancel these Terms.

 

32.                  GENERAL

32.1.             These Terms shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the laws of South Africa.

32.2.             These Terms constitutes the whole Agreement between the Parties relating to the subject matter hereof and supersedes all other discussions, agreements and/or understandings regarding the subject matter hereof. 

32.3.             No amendment or consensual cancellation of these Terms or any provision hereof, and no settlement of any disputes arising out of these Terms, and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provision of these Terms, shall be binding unless first recorded in writing and signed by the Parties.

32.4.             Any provision in these Terms which is or may become illegal, invalid or unenforceable, shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as if it had not been drafted and severed from the balance of these Terms, without invalidating the remaining provisions of these Terms. 

32.5.             The rights and obligations in these Terms may not be ceded or assigned without the prior written permission of the Parties.

Last modified: July 23, 2021

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