(Last updated: January 2009)
The Client and Emotion agree that the terms and conditions set herein (as amended by any additional terms and conditions) shall govern their relationship in respect the provision of Services and/or Products by Emotion to the Client.
The Client and Emotion (the Parties), agree:
to comply with all applicable laws of the Republic of South Africa and conduct their business in accordance with high standards of ethical business practices and personal integrity;
that these Terms and Conditions will be governed, interpreted and construed in accordance with the laws of the Republic of South Africa and to submit to the exclusive jurisdiction of the High Court of the Republic of South Africa in respect of all and any matters arising out of or in connection with these Terms and Conditions , including the performance or otherwise of the Parties;
to conduct business in a manner which reflects favorably on the good name, goodwill and reputation of the other Party;
to avoid deceptive, misleading or unethical practices that are, or might be detrimental to the other Party or the public;
to not publish or employ any misleading or deceptive advertising material;
to not knowingly conduct business with any organization that engages in illegal, unethical or deceptive trade practices;
to notify the other Party immediately in writing if it learns of any activities by any other 3rd party intended to defraud said Party;
to not remove or alter any of the other Party's trademarks, patent or copyright notices, or other notices or markings, or add any other notices or markings to the other Party's products, services or documentation without the prior written consent of the other Party and comply with the other Party's then current policies for use of same (For the purpose of this clause "trademarks" shall mean those trademarks, trade names, devices, designs and logos which either Party has authorized the other Party to use, and which are used on or in connection with any of the products and/or services and/or on brochures, manuals, promotional materials or any other documents related to these Terms and Conditions );
that these Terms and Conditions does not grant or confer any right, title, or interest in the other's organization, business, services, equipment, software, documentation or other products;
that unless specifically agreed to the contrary and recorded in writing, all ideas, concepts, know-how or data-processing techniques, and all and any Developments by either Party's personnel (alone or jointly) will be the exclusive property of and remain vested in said Party;
that addendums, exhibits, schedules and annexure to these Terms and Conditions are an integral part of same and shall be interpreted and construed as such;
that they shall be bound by the terms and conditions contained in this agreement together with the terms and conditions contained in any addendum, exhibit, schedule and annexure which becomes a part of this agreement;
that the terms of the Agreement shall, unless otherwise agreed in writing, together with the terminology in clause 2, apply in respect of such amended, substituted or new addendum, exhibit, schedule and annexure, irrespective of whether such addendum, exhibit, schedule and annexure refers to the Agreement or this terminology;
to bear all costs, risks and liabilities incurred by it arising out of its obligations and efforts under these Terms and Conditions unless specifically stated otherwise within these Terms and Conditions ;
In the event of a conflict between the documents comprising the Agreement, these Terms and Conditions shall take precedence.
In the event of any one or more of the provisions of these Terms and Conditions being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or un enforceability shall not by default affect any other provision of these Terms and Conditions , and these Terms and Conditions shall be construed as if such invalid, illegal or unenforceable provision(s) was not a part of these Terms and Conditions , and the Agreement shall be carried out as nearly as possible in accordance with its original terms and intent.
Headings herein are for reference purposes only and shall not be taken into account when interpreting the provisions of these Terms and Conditiond (these Terms and Conditions )
In these Terms and Conditions any reference to any one gender shall be deemed to include a reference to the other, any reference to the singular shall include a reference to the plural and vice versa, and any reference to a person shall be deemed to include both natural and juristic (including corporate and unincorporated) persons.
If any of the definitions in these Terms and Conditions are substantive clauses in themselves in that they confer any rights or impose any obligations on any of the Parties to these Terms and Conditions , then they shall be binding on the Parties as if they were part of the body of these Terms and Conditions even though they fall within the definition section of these Terms and Conditions
"Additional Terms and Conditions" means any amendments or additions to the terms and conditions of these Terms and Conditions which have been agreed between the Parties and reduced to writing in a Schedule to these Terms and Conditions ;
Agreement" means these Terms and Conditions, including all addendums or schedules hereto, as amended, extended or added to from time to time, between the Parties;
"Application" means any Software excluding operating systems;
"Commencement Date" means the date on which the delivery of Services and/or Products by Emotion to the Client commences;
"Developments" means any inventions, improvements and discoveries whether patentable or not;
"Equipment" means electronic or mechanical IT equipment;
"Fees" means the costs to the Client for Services provided by Emotion in terms of these Terms and Conditions ;
"IT" means Information Technology as in general industry use;
"Month" is defined as a calendar month, commencing on the first day of that calendar month and ending on the last day of that calendar month.
"Products" means Equipment, Software and related documentation;
I"Proprietary Information" means all and any manner of tangible or intangible information (including, without limiting the generality hereof, all hardware, software, plans, documentation, diagrams, blueprints, drawings, models, moulds, prototypes, or any parts or combinations of same) which is proprietary and / or confidential to Emotion, its partners, its licensors or the Client, including copies and partial copies of same;
"Services" means certain information technology and related services and can be any subset or combination of consulting, design, development, implementation, training, business application services and maintenance, management, support and other services;
"Software" means the object code and, if applicable, the source code version of IT programs in machine readable form;
Each Party undertakes at all times to fulfil its duties and obligations in terms of the Agreement promptly, diligently and in such a manner as shall not materially interfere with or delay the performance by the other party of its obligations under the Agreement. If any failure by one Party, its employees, agents or sub-contractors to fulfil its obligations, results in a failure by the other Party to perform its obligations according to these Terms and Conditions , such failure shall not constitute a breach of the Agreement by the latter Party.
Either Party's news releases, public announcements, advertisements or publicity concerning these Terms and Conditions will be subject to prior written approval by the other Party, such approval shall not be unreasonably withheld.
Each Party shall furnish to the other such co-operation and assistance as may be reasonably required hereunder, provided, however, that the Parties, as between themselves, shall be deemed to be independent and the employees and representatives of one shall not be deemed to be the employees and representatives of the other.
The Client agrees NOT to:
Decompile, disassemble, or reverse engineer any Software licensed under this agreement; or
Modify any Software licensed under this agreement; or
Make or maintain more than one archival copy (excluding back up copies) of each item of Software which will contain all notices and be subject to the same terms and conditions as the original.
The Client shall allow Emotion unrestricted access to the Client's data to the extent necessary to perform Services.
The Client will exercise due care in the appointment and/or use of any other IT service providers to ensure that no third party interferes or impacts any Service, system or process implemented by Emotion for the delivery of its obligations. Should any external service provider impact on the service levels or process of Emotion, causing Emotion to incur cost (of whatever nature) to re-establish Services in terms of these Terms and Conditions said cost will be payable by the Client.
The Client is responsible for all data accuracy in terms of content, consistency, validity and nature of any data captured, edited and/or deleted by the Client, any of its employees, agents or sub-contractors.
The Client is responsible for all data accuracy in terms of content, consistency, validity and nature of any data captured, edited and/or deleted by Emotion under instruction of the Client, any of its employees, agents or sub-contractors.
Emotion shall maintain a level of security to protect against unauthorized access or use or interference by others to, of or with, the Client's data stored, processed or compiled within the Emotion infrastructure. The Client shall comply with and shall ensure that all its employees, sub-contractors and agents comply with all security measures imposed by Emotion regarding security and access to the Client's data stored, processed or compiled within the Emotion infrastructure.
Emotion shall deliver special or additional security requirements the Client may have, subject to the Client meeting the additional costs, if any, of so doing.
Emotion shall not be liable for any loss or damage arising or resulting from any act or omission of the Client or any of its employees, agents or sub-contractors in respect of the Client's data, including without limitation any errors, out of sequence or incorrectly entered data. Emotion reserves the right to charge the Client at Emotion's the current time and material rates, for any additional work performed by Emotion as a result of any of these acts or omissions.
Emotion shall not be liable for any delay or failure to meet its obligations under the Agreement due to a failure, defect, partial or total disruptions in the services rendered by any third party or any of its subsidiary service providers regardless of the cause. Specifically included is any communications network provider, such as Telkom, MTN, Vodacom and Cell C as well as any IT product or service provider, such as Microsoft, Hetzner, Cisco and Dell.
No failure to exercise and no delay in exercising, on the part of Emotion, any right, power or privilege under these Terms and Conditions shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege preclude the enforcement of any other right, power or privilege, nor shall the waiver of any breach of any provision of these Terms and Conditions be taken or held to be a waiver of any subsequent breach of any such provision, or to be a waiver of the provision itself. Any waiver must be in writing to be effective.
Client's may order Services and/or Products from Emotion, from time to time, online or by signing duly completed Schedules. Acceptance of any Service and/or Product by Emotion will be effective when a duly authorised Emotion representative informs the Client of such acceptance of an order, or when Emotion delivers the ordered Service and/or Product.
Any order will remain in force from the Commencement Date until terminated in accordance with the provisions of this agreement or by either party on not less than 30 (thirty) days prior written notice of termination to the other party to take effect at the end of any month thereafter.
Unless clearly indicated otherwise any fees and/or charges quoted by Emotion will be deemed to exclude Value Added Tax.
The Client shall pay to Emotion the fees and/or charges as per the Emotion invoices to the Client.
Both parties acknowledge that any other charges invoiced to the Client are intended to compensate Emotion fully for all Services to be performed or provided and/or Products to be provided by Emotion pursuant to Client requirements.
Unless otherwise agreed in writting, fees and charges will be invoiced in advance of the period to which it relates and due and payable by the Client on invoice date.
Payment to Emotion shall be made by direct bank transfer or authorised debit order to the Emotion specified bank account as specified on all invoices and may be amended by Emotion from time to time.
All payments by the Client to Emotion shall be made in full, in South African currency, without any deduction or set-off, and free of bank exchange or other charges or commission.
In respect of payments not made on due date, Emotion may impose a late payment charge equal to 2% (two percent) above the Nedcor Bank Limited overdraft rate as charged to its clients in the private sector from time to time.
If any amount payable by the Client is not paid within 5 (five) calendar days of the due date, Emotion may, without notice to the Client and without prejudice to any other rights it may have, forthwith suspend any and all Services and the carrying out of any other obligations.
The following shall be for the account of the Client:
Value Added Tax;
Any other tax which Emotion becomes obligated to pay arising out of these Terms and Conditions , exclusive of taxes based on the income of Emotion;
Import or customs duties and charges including extraordinary duties and charges which are in excess of, or are subsequently imposed to, those then current duties and charges which are already included in the charges for Products as reflected.
Should the Client provide Emotion with materially defective information or require changes with regards the infrastructure, hardware, software or requirements and this defective information or changes materially impacts the pricing, then Emotion shall re-determine and re-negotiate of the fees payable by the Client.
The Parties, as is required for each to perform its responsibilities and obligations hereunder, may exchange information of a proprietary, secret and confidential nature. For the purposes of these Terms and Conditions , the Party disclosing such information shall be referred to as "the Disclosing Party" and the Party receiving such information shall be referred to as "the Receiving Party".
Information" shall mean any technical, commercial, financial, scientific, theoretic, conceptual, marketing or business information and know-how, including without limitation, the trade secrets, software, marketing strategies, business strategies and information relating to shareholders, subsidiary companies or partners, clients and/or suppliers, processes, machinery, designs, drawings, technical specifications and data in whatever form relating to the Disclosing Party's business practices or the promotion of the Disclosing Party's business plans, policies or practices, which information is communicated to the Receiving Party, or otherwise acquired by the Receiving Party from the Disclosing Party, during the course of the Parties' interactions, discussions and negotiations with one another, whether such information is formally designated as confidential or not; and without in any way limiting the generality of the above clause any prices, terms and conditions contained in any Agreements; details relating to any prospective opportunities, clients, suppliers and partners; details relating to employees of the Parties and details of business, management, marketing or other company strategies and techniques.
The Parties agree to disclose information to one another as required in terms of these Terms and Conditions and the Parties acknowledge that each Party's information is a valuable, special and unique asset proprietary to the Disclosing Party.
The Parties agree that they shall protect the information disclosed pursuant to the provisions of these Terms and Conditions using the same standard of care that each Party applies to its own proprietary, secret or confidential information and that the information shall be stored and handled in such a way as to prevent any unauthorized disclosure thereof.
The Parties agree that they will not, during the course of their association with one another, or thereafter, disclose the information to any third party for any reason or purpose whatsoever without the prior written consent of the Disclosing Party, save in accordance with the provisions of these Terms and Conditions .
The Disclosing Party, may at any time, request the Receiving Party to return any material containing, pertaining to or relating to the information disclosed pursuant to the terms of these Terms and Conditions and may, in addition request the Receiving Party to furnish a written statement to the effect that, upon such return, the Receiving Party has not retained in its possession, or under its control, either directly or indirectly, any such material. As an alternative to the return of the material contemplated herein, the Receiving Party shall, at the instance of the Disclosing Party, destroy such material and furnish the Disclosing Party with a written statement to the effect that all such material has been destroyed. The Receiving Party shall comply with such request, in terms of this clause, within 7 days of receipt of such a request.
The exchange of proprietary, secret and confidential information is also subject to the following non-disclosure terms and conditions which shall be fully binding on the Parties' officers, employees, agents, legal successors-in-title, associates and associated companies, whether existing now or incorporated in the future. (For the purposes of this clause "associates" shall mean any individual, firm or other unincorporated body which is associated with a Party by partnership or other form of shared equity interest, including any company directly or indirectly controlled by such individual, firm or unincorporated body and "associated company" shall mean any company or other legal entity which is a subsidiary or holding company of such company or a subsidiary of such holding company):
The Receiving Party agrees not to use the information for any purpose other than that for which it is disclosed and in accordance with the provisions of these Terms and Conditions ; not to utilize, employ, exploit or in any other manner whatsoever use the information disclosed pursuant to the provisions of these Terms and Conditions for any purpose whatsoever without the prior express written consent of the Disclosing Party and that the unauthorized disclosure of the information to a third Party may cause irreparable loss, harm and damage to the Disclosing Party.
All information disclosed by the Disclosing Party to the Receiving Party is acknowledged by the Receiving Party to be proprietary to the Disclosing Party and not to confer any rights of whatever nature in such information to the Receiving Party.
The Receiving Party may disclose the information only to its officers, employees and professional advisors (and those of its associated companies) and then only on a strictly need-to-know basis; provided that the Receiving Party takes whatever steps are necessary to procure that such officers, employees, professional advisors, associates and associated companies agree to abide by the terms of these Terms and Conditions to prevent the unauthorized disclosure of the information to third Parties.
The obligations of the Parties pursuant to the provisions of this clause shall not apply to any information that:
is or was known to or in possession of the Receiving Party prior to disclosure thereof by the Disclosing Party;
is or becomes publicly known, otherwise than pursuant to a breach of these Terms and Conditions ;
is developed independently of the Disclosing Party by the Receiving Party;
is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the Receiving Party shall advise the Disclosing Party in writing prior to such disclosure to enable the Disclosing Party to take whatever steps it deems necessary to protect its interests in this regard; provided further that the Receiving Party will disclose only that portion of the information which it is legally required to disclose and the Receiving Party will use its reasonable endeavours to protect the confidentiality of such information to the widest extent possible in the circumstances;
is disclosed to a third Party pursuant to the prior written authorization from the Disclosing Party;
is received from a third Party in circumstances that do not result in a breach of the provisions of these Terms and Conditions .
This clause shall become binding to both Parties upon the date of signature by both Parties of these Terms and Conditions and shall continue o bind the Parties for a period of 2 (two) years following the termination of their association with one another.
All and any Intellectual Property rights and proprietary rights in and to any Software, Equipment or any other products owned by the Client and utilized by Emotion in execution of its duties in terms of these Terms and Conditions shall remain the sole and exclusive property of the Client or its licensors.
The Client shall retain all title, copyright and other intellectual property rights on its data and information whether or not the same be placed in the possession or control of Emotion in terms of these Terms and Conditions and the Client warrants that it has full legal right and authority, either as owner or licensee, to use such data and information and it shall not constitute an infringement of any rights or laws for Emotion to use them for purposes of the Agreement.
The Client grants to Emotion all such rights as are necessary to use the Client's data, information, Software, Equipment or any other products for the purposes of performing its obligations under these Terms and Conditions .
All and any intellectual property rights and/or proprietary rights in respect of any data, information, documentation, Developments, Software, Hardware or any other product utilized or provided by Emotion in execution of its duties in terms of these Terms and Conditions , shall be and remain the sole and exclusive property of Emotion or its licensors, as the case may be.
Emotion shall have sole and exclusive intellectual property rights and ownership title to any developments made by Emotion under this agreement unless otherwise agreed to in writing by both parties.
The Client indemnifies Emotion against any claim by any third party based upon an alleged infringement of any patent, trademark, copyright or other intellectual property rights which arises as a result of the storage, processing or use by Emotion of any data, information and/or Products or anything, which Emotion uses at the request of or with the consent of the Client.
Either party may terminate any service, by giving 30 days prior written notice to this effect to the other party
Emotion may suspend any Schedule if any payment by the Client is overdue; or the Client does not maintain the minimum specifications required by Emotion to be able to provide the Services and/or Products.
The Client may terminate services for default if, after written notice, Emotion has failed to cure any default within 30 days.
Termination will not affect any rights or duties arising under it with respect to Proprietary Information or payment due by Client to Emotion.
Upon termination by either party, all amounts owed by the Client to Emotion shall become payable immediately together with the total value of Products, Services and any additional activities completed up to the date of the termination (to the extent not already covered by monies due) and the cost of materials, software, or equipment used or ordered exclusively for the Client's use and cost of which was agreed with the Client, for the performance in terms of Services to the Client for which Emotion has paid or is legally bound to pay after which the asset remains with the Client.
The right of Emotion to claim the amounts referred to above, shall be without prejudice to any other rights it may have in law, including without limitation the right to claim damages in lieu thereof.
If any Party breaches any material provision or term of these Terms and Conditions and fails to remedy such breach within 30 days of receipt of written notice requiring it to do so and warning that if the breach is not so remedied, the aggrieved Party may exercise its rights in terms of this clause and shall be entitled, without further notice and in addition to any other remedy available to it by law or under these Terms and Conditions (including obtaining an interdict), to cancel these Terms and Conditions or to claim specific performance of any obligation, in either event without prejudice to the aggrieved Party's right to claim damages.
Notwithstanding the provisions of the above clause, except for a Party's negligent and/or wilful refusal to remedy and/or perform an obligation, then, in the event of breach of these Terms and Conditions by either Party, the remedy of the aggrieved Party shall be limited to recovery of the actual costs of labour and material expended by such aggrieved Party in performing its obligations under these Terms and Conditions up to the date of the breach and the breaching Party will not be liable to the other Party for consequential, special or incidental losses or damages whether arising in contract or delict.
Delay or failure to comply with or breach of any of the terms and conditions of these Terms and Conditions if occasioned by or resulting from any act of God, public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riot, strikes, lockouts or other labour disputes, sabotage, accident, blockade, embargo, epidemics, act of any Government or other Authority, compliance with Government orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the Party so failing, shall not be deemed to be a breach of these Terms and Conditions , not shall it subject either Party to any liability to the other.
Should either Party be prevented from carrying out its contractual obligations by force majeure lasting continuously for a period of 6 (six) months, the Parties shall consult with each other regarding the future of these Terms and Conditions . If no mutually acceptable arrangement is arrived at within a period of 1 (one) month thereafter, either Party shall be entitled to terminate the Agreement forthwith on written notice.
Unless further limited elsewhere in these Terms and Conditions , the entire liability of Emotion for damages from any cause related to or arising out of or in connection with these Terms and Conditions , regardless of the form of action, whether in contract or in delict, will not exceed a refund of payments made to Emotion during the 3 (three) month period immediately prior to the written notice of a claim.
Under no circumstances will Emotion be liable for any incidental, indirect, special or consequential losses or damages, including, but not limited to, loss of use, revenues, profits, or savings; or any claims, demands, or actions against the Client by any third party.
If you have any questions or comments about these Terms and Conditions, please contact us.