MASTER SERVICES AGREEMENT
AN AGREEMENT ENTERED INTO BY Jetweb (PROPRIETARY) LIMITED
THE CLIENT DESCRIBED IN SCHEDULE OF COSTS OR MEDIA AUTHORISATION FORM
These terms of service together with a completed and executed the schedule of costs or media authorisation form shall form the Agreement between Jetweb (PTY) Ltd and you (the “Customer”).
(b) place risk or liability on a consumer as defined in the CPA; and/or
(c) oblige a consumer as defined in the CPA to indemnify the supplier or a third party; and/or
(d) constitute a positive acknowledgement by a consumer as defined in the CPA of any fact.In this agreement, such clauses have been highlighted by being typed in bold italic font.You are entitled to sufficient time to consider the clauses so highlighted. If you are a consumer as defined in the CPA, by signing this agreement, you acknowledge that you have read and properly considered each of the highlighted clauses and that you have been afforded sufficient opportunity to consider the effects of entering into this agreement.
1 DEFINITIONS AND INTERPRETATION
1.1 Jetweb: Jetweb (Proprietary) Limited, registration number 2006/007927/07.
1.2 AFSA: The Arbitration Foundation of Southern Africa or, failing its existence or ability to act, any other South African entity whose object is to conduct or facilitate arbitration.
1.3 Annexure: An annexure to this agreement will be referred to by its letter, and each annexure will form an integral part of this agreement.
1.4 Attachment: a document attached to this agreement and which forms part of this agreement, which describes a Service performed by Jetweb on behalf of the Client and the fees payable by the Client for the Service.
1.5 Business Day: any day other than a Saturday, Sunday or public holiday in South Africa.
1.6 the Client: the Client described in the Cost Estimate.
1.7 Confidential Information: information developed by or secret to a Party, which is private and confidential to it, including any trademark, copyright, trade name or other intellectual property right (whether registered or not), data, drawings, documentation, specifications, designs, trade secrets, know-how, accounts, use and unusual use of technology, manufacturing processes and techniques, methods of combining standard or individual manufacturing processes, ingredients, formulae and recipes used in the Business, business structures, business secrets, research and development, methods and results, technological improvement, technological innovation, production methods in general, methods of responding to competitors’ initiatives, sources of supply, business contacts, knowledge of clients’ requirements and preferences, methods of achieving solutions to customers’ requirements, innovative methods of achieving a given result, strategic plans, budgets and financial projections, price and pricing, volumes of products produced.
1.8 Cost Estimate: a document prepared by Jetweb including information about the Client and the costs payable by the Client to Jetweb for the Services.
1.9 domicilium: Domicilium citandi et executandi. The Parties choose domicilium as follows, provided that a Party may change its domicilium by notice at any time:
1.9.1 Jetweb: Physical address: 14 Thora Crescent, Wynberg, Sandton
Email address: firstname.lastname@example.org
1.9.2 the Client: the Client’s physical address, email address and fax number corded in the Cost Estimate
1.10 Effective Date: the effective date recorded in the applicable Cost Estimate.
1.11 fees: fees for the Services, as amended by Jetweb on notice to the Client from time to time.
1.12.1 Any notice in terms of this agreement shall be in writing.
1.12.2 Where the notice relates to a breach of this agreement, it shall specify the breach and call for it to be remedied within 10 Business Days of receipt of notice. Any notice shall be addressed to the addressee in at least one of the following ways:
18.104.22.168 by fax to the addressee’s then current fax number;
22.214.171.124 by email to the addressee’s then current email address;
126.96.36.199 by hand to the addressee’s domicilium.
1.12.3 Notice shall be deemed to have been received on the date of the fax transmission in 188.8.131.52, the date the email was sent in 184.108.40.206 or the date of delivery in 220.127.116.11.
1.12.4 A written notice or communication actually received by a party shall be adequate notice to it notwithstanding that it was not sent or delivered in terms of 1.12.2.
1.13 number: The use of the singular will include the plural and vice versa as the context may require.
1.14 paragraph: Where reference is made to a paragraph of this agreement it will be by reference to that paragraph’s distinguishing number.
1.15 the Parties: the parties to this agreement.
1.16 the Services: the services described in the Attachments.
2.1 The Client hereby appoints Jetweb to perform the Services on its behalf in accordance with the terms and conditions of this agreement.
2.2 Jetweb hereby accepts its appointment under 2.1.
3 DURATION OF AGREEMENT
3.1 This agreement shall commence on the Effective Date and shall endure indefinitely or as described in the applicable Attachment or until it is terminated by either Party on the giving of 90 calendar days’ notice to the other Party.
3.2 Nothing in 3.1 shall affect either Party’s right to terminate this agreement under 9 or 10.
3.3 Either Party shall have the right to terminate any of the Services under this agreement, without terminating the agreement itself, on the giving of 90 calendar days’ notice to the other Party, unless the applicable Attachment records a different termination clause, in which event the latter shall prevail.
3.4 Upon the termination of any Service, the agreement will remain in force in respect of the Services which are not terminated.
4 THE SERVICES
4.1 Jetweb shall perform the Services for and on behalf of the Client in accordance with the specific standards, procedures, terms and conditions recorded in the applicable Attachment and the general terms and conditions recorded in this agreement.
4.2 While Jetweb will use its reasonable commercial endeavours to perform the Services to the highest standards of the industry, delivery dates for the Services are indicative only and the Client agrees to accept delivery within a reasonable period before or after the delivery date indicated, and notwithstanding anything to the contrary contained in this agreement:
4.2.1 Jetweb shall not be liable for any damages that the Client may suffer as a result of Jetweb’s failure to perform the Services timeously for any reason, unless such delay is caused by the gross negligence of Jetweb; and
4.2.2 the Client shall not be entitled to cancel this agreement or an order for the Services by reason of such delay, unless such delay is caused by the gross negligence of Jetweb.
5.1 In consideration for the Services, the Client shall pay fees to Jetweb at the applicable rates recorded in the Cost Estimate and in accordance with the provisions thereof.
6 RIGHT TO EXHIBIT
6.1 The Client hereby agrees that Jetweb shall be entitled for the duration of this agreement to publish the Client’s name and trademarks on Jetweb’s website and in other promotional material for the purpose of marketing the Services.
6.2 The Client hereby grants to Jetweb a non-exclusive royalty-free revocable licence to use the Client’s name and trademarks for the purpose in 6.1.
7.1 Each of Jetweb and the Client undertake in favour of the other that they shall not for the duration of this agreement and for a period of two years from the date of termination of this agreement, whether directly or indirectly, encourage, entice or persuade an employee, freelancer, independent contractor or subcontractor of the other Party to terminate his employment or appointment by the other Party and:
7.1.1 to be employed or appointed by the undertaking Party; or
7.1.2 to be employed or appointed by a competitor of the other Party.
7.2 This 7 is a separate, divisible agreement from the rest of this agreement and shall remain in effect even if this agreement terminates, is nullified or cancelled for any reason or cause.
8 CONFIDENTIALITY AND NON-DISCLOSURE
8.1 Each Party shall during the period of this agreement and for 2 years thereafter, 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, 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, customers, clients, suppliers and service providers.
8.2 On termination of this agreement and on request of Jetweb, the Client shall immediately deliver to Jetweb all assets, records, computer programmes, documents, accounts, letters, notes, memoranda and other material of every description in its possession or under its control which relate to Jetweb’s affairs, whether or not they were originally supplied by or derived from Jetweb.
8.3 The provisions of this 8 shall not apply to the whole or any part of information which the recipient can establish to have:
8.3.1 become publicly known through no fault on the part of the recipient; or
8.3.2 been independently developed by the recipient; or
8.3.3 been approved in writing for public release by the owner of the information; or
8.3.4 been required to be disclosed by law, or to a competent court, government or regulatory body having the right to same, provided that the recipient gives the owner of the information a reasonable opportunity to review and, if applicable, object to the disclosure before it is made.
8.4 This 8 is a separate, divisible agreement from the rest of this agreement and shall remain in effect even if this agreement terminates, is nullified or cancelled for any reason or cause.
Should a Party breach this agreement and remain in breach after notice then the aggrieved Party may:
9.1 enforce this agreement;
9.2 where the breach is of a material term of this agreement, terminate this agreement;
and, in either event
9.3 in an appropriate case and subject to 12, recover damages.
10 SUMMARY TERMINATION
In the event that a Party:
10.1 takes any steps in contemplation of being placed into business rescue;
10.2 is placed under provisional or final liquidation or into business rescue;
10.3 attempts a compromise or composition with its creditors;
10.4 passes a resolution for its voluntary winding-up;
10.5 has a judgment of any court granted against it that remains unsatisfied for a period of 14 days after it has been granted;
10.6 has any of its property, movable or immovable, attached in execution or by any process of any court of competent jurisdiction;
10.7 defaults or threatens to default in the payment of its liabilities; or
10.8 commits any act or omission which is an act of insolvency in terms of the Insolvency Act No. 24 of 1936,
the other Party shall have the right, in writing but without notice, to terminate this agreement forthwith.
11 OBLIGATIONS OF THE CLIENT ON TERMINATION
11.1 Upon termination of this agreement or any part of the Services, all outstanding amounts arising from this agreement or the terminated part of the Services, as the case may be, shall become immediately due and payable by the Client to Jetweb.
11.2 Immediately upon termination of this agreement or any part of the Services, and at the election of Jetweb, the Client shall either:
11.2.1 cease all use of and remove, uninstall or disable all data and paraphernalia in existence as a result of the Client’s use of the Services, comprising ad and other tracking tags, including but not limited to spotlight tags, tracking tags, clicks and commands from any website where media has been placed or any other website where activity is being tracked; or
11.2.2 grant to Jetweb such access as may be required by it to remove, uninstall, or disable all data and paraphernalia in 11.2.1, in which event the Client shall upon demand by Jetweb reimburse Jetweb for the costs incurred by it in doing so.
12 LIMITATION OF LIABILITY
12.1 Subject to the rights of the Client, if any, under the Consumer Protection Act No. 68 of 2008 and other than as specifically provided for in this agreement, Jetweb shall under no circumstances be liable for any loss or damage of any nature and howsoever arising, whether consequential or otherwise, and whether direct or indirect, and whether caused by the negligent act or omission of Jetweb or otherwise resulting from the performance or use of the Services.
13 DISPUTE RESOLUTION
13.1 A dispute concerning this agreement exists once a Party notifies the other in writing of the nature of the dispute and requires it to be resolved under this 13.
13.2 Within 10 Business Days of notification in 13.1, the Parties must seek amicable resolution of the dispute by one or both of them referring it to designated and authorised representatives of each of the Parties to negotiate and resolve the dispute in writing within 15 Business Days.
13.3 If negotiation under 13.2 fails, one or both of the Parties must refer the dispute for resolution by mediation under the rules of AFSA.
13.4 If the mediation fails, one or both of the Parties must refer the dispute within 15 Business Days for resolution by arbitration (including any appeal against the arbitrator’s decision) by one arbitrator appointed by agreement between the Parties. If the Parties cannot agree on an arbitrator within a period of 10 Business Days after the referral, the arbitrator will upon the request of either Party be appointed by the Secretariat of AFSA.
13.5 The rules of arbitration shall be those set out in B, supplemented where necessary by the rules of AFSA on the award of the arbitrator at the instance of a Party.
13.6 This 13 will not preclude any part from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict or mandamus pending finalisation of the dispute resolution process in this 13.
13.7 This 13 is a separate, divisible agreement from the rest of this agreement and shall remain in effect even if this agreement terminates, is nullified or cancelled for any reason or cause.
14 GENERAL PROVISIONS
14.1 This agreement and all matters and disputes arising from it, directly or indirectly, is subject to the law of the Republic of South Africa.
14.2 In the event of any legal proceedings being instituted by Jetweb in consequence of any breach of this agreement by the Client, Jetweb shall be entitled to claim and recover from the Client all costs thereby incurred on the scale as between attorney and own client, including collection commission.
14.3.1 Jetweb shall be entitled to cede and assign its rights and obligations under this agreement to any third party without the consent of the Client.
14.3.2 The Client shall not be entitled to cede and assign its rights and obligations under this agreement to any third party without the prior written consent of Jetweb, which consent shall not be unreasonably withheld, and may be granted by Jetweb conditionally or unconditionally.
14.4 If any provision of this agreement is unenforceable, then that provision shall be severed from the remaining provisions of this agreement, which shall not be affected and shall remain of force and effect.
14.5 No variation, extension or termination of or addition to this agreement shall be of any force or effect unless reduced to writing and signed by the Parties.
14.6 Should any Party fail or decline to enforce the whole or any part of this agreement or grant any indulgence to the other Party, then the act or omission aforesaid shall not be interpreted as a waiver of rights, nor shall it act as an estoppel against or otherwise prejudice the Party committing the act or omission.
14.7 Where a Party is granted a right under this agreement it shall be in addition to and not in substitution for any other right which that Party might have in terms of this agreement or in law.
14.8 No failure on the part of a Party to exercise, and no delay by a Party in exercising, any right under this agreement will operate as a waiver of that right, nor will any single or partial exercise of any right under this agreement preclude any further or other exercise of that right nor act to the exclusion of any other right.
14.9 This document constitutes the sole record of agreement between the Parties on the subject. No Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in this agreement.
14.10 This agreement may be signed in any number of counterparts, each of which shall be an original, but all of which together shall constitute a single indivisible agreement.
B.1 The Party alleging a dispute shall do so in writing and deliver a copy to the arbitrator and to the other Party.
B.2 The Party against whom the allegation is made shall respond in writing within 14 days of receiving delivery under B.1.
B.3 The writing under B.1 and B.2 shall contain sufficient particularity to enable the arbitrator to understand the facts and basis of claim and defence, and the arbitrator may call for further particulars to either or both documents.
B.4 The arbitrator shall be entitled to make a decision on the documents referred to above or may in his discretion call for evidence, in which event each Party shall be entitled to call witnesses and to cross examine witnesses called by the other Party. In the event of no response under B.2, the arbitrator shall proceed without the response.
B.5 Each Party shall make discovery of all documents and records of every kind which are in its possession or under its control.
B.6 The arbitrator shall have the right to determine the procedure which he will follow, subject only to the rules of natural justice.
B.7 The arbitrator will make his finding in the shortest time possible, the Parties recording that it is their intention that there should be a quick resolution of the matter. The award of the arbitrator shall be final and binding on the Parties, absent manifest error.
B.8 The arbitrator shall award the costs incurred by the successful Party against the unsuccessful Party. The costs shall be those costs which the arbitrator determines as having been reasonably incurred in prosecuting or defending any allegation, and the arbitrator shall, if requested by either Party, determine the amount or method of calculation of costs.
B.9 Any hearing or other proceeding under these rules shall be held in Cape Town.
B.10 The arbitrator’s award shall constitute an award made by an arbitrator under the Arbitration Act No. 42 of 1965 and shall be capable of being made an order of court.
B.11 All evidence (including documents, submissions, and testimony), rulings and awards shall be private and confidential, and not revealed to others not directly involved in the dispute.
B.12 A counterclaim shall be treated as a claim, but shall be dealt with in the same proceedings.