This Agreement sets out the terms and conditions upon which Hyve Digital agrees to provide its digital marketing services to you, the customer. Your acceptance of any quote or proposal, via positive written indication, indicates your explicit or tacit acceptance of this Agreement and the Standard Terms of Service listed below, as well as any other relevant Terms and Conditions located on Hyve Digital’s website, which are incorporated by reference.
1.1 The definitions and rules of interpretation in this Agreement are set out below:
1.2 Headings in these Clauses shall not affect their interpretation.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.5 Save as expressly provided in these Clauses, a reference to writing or written includes documents, notices and email.
1.6 Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.7 References to clauses are to the clauses of the Agreement.
2.1 If there is any conflict, ambiguity or inconsistencies between any of these Terms of Service and any particulars contained in any Proposal or Quotation sent to you (or Work Order agreed upon in writing), the particulars in the Proposal, Quotation or Work Order shall prevail.
2.2 If any particulars are omitted from a proposal or quote, or no quote or proposal is utilised at all, these Terms of Service shall apply.
3.1 The Services supplied under this Agreement shall be provided by Hyve Digital to the Customer from the Service Commencement Date specified in any Quotation or Proposal provided and accepted by the Customer.
3.2 Subject to clauses 8 and 15, the Services supplied under this Agreement shall continue to be supplied for the period as stipulated in the Quotation or Proposal provided and thereafter, if the nature of the Services are ongoing, unless confirmation of termination is provided by the Customer prior to the expiry of this Agreement, automatically supplied on a month to month basis until the Agreement is terminated by either one of the Parties.
3.3 If agreed in writing between the Parties before the expiry of this Agreement, this Agreement may be renewed on the same terms and conditions or on new terms and conditions to be agreed upon by the Parties.
4.1 Hyve Digital shall use reasonable endeavours to provide the Services and to deliver the Deliverables to the Customer.
4.2 Hyve Digital will refrain from any conduct which may be detrimental to the image, good name and reputation of the Customer;
4.3 Maintain regular contact with the representatives of the Customer at which it is required to provide the Services for the duration of this Agreement;
4.4 Supply the Customer with any information or documentation relating to the Services which it requires within a reasonable time, including any reports which may be requested from time to time in the manner, format and frequency required; and
4.5 Comply with all applicable laws including relevant legislation, ordinances, by-laws and regulations having any bearing on the Agreement and will obtain all necessary licenses, permits and approvals that it requires to perform its obligations and shall ensure that its employees do the same;
4.6 Take all reasonable steps to ensure that Services are delivered timeously without any undue delay acknowledging that time is of the essence in the performance of its obligations under this Agreement.
4.7 Hyve Digital shall be entitled to subcontract the performance of any part of the Services to a third-party contractor, at its discretion, provided that the Hyve Digital will remain liable to the Customer for the performance of all of its obligations under this Agreement.
5.1 The Customer shall:
5.1.1 cooperate with Hyve Digital in all matters relating to the Services;
5.1.2 provide to the Hyve Digital, in a timely manner, such Input Material and other information as Hyve Digital may reasonably require and ensure that it is accurate in all material respects;
5.1.3 adhere to, and shall procure that all of its representatives, personnel, agents and customers adhere to, all acceptable use policies, directions, guidelines or terms and conditions applicable to the use of any software and other Intellectual Property relating to the Services;
5.1.4 not do, cause, permit or omit to do anything which might prejudice or impede the business and/or interests and/or goodwill of the Hyve Digital;
5.1.5 not resell, charge, transfer or otherwise dispose of any Service, or part thereof, to any third party, unless expressly authorised in this Agreement or with the prior written consent of Hyve Digital;
5.1.6 provide Hyve Digital with reasonable access to its systems, operations, tools or platforms so as to enable Hyve Digital to render the Services in accordance with the terms of this Agreement.
5.2 If Hyve Digital’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer or its Agents, Hyve Digital shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
5.3 The Customer shall be liable to pay to Hyve Digital, on demand, all reasonable costs, charges or losses sustained or incurred by Hyve Digital (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Agreement, subject to Hyve Digital confirming such costs, charges and losses to the Customer in writing.
5.4 The Customer shall not, without the prior written consent of Hyve Digital, at any time from the date of the Agreement commencement to the expiry of 12 months after the last date of supply of the Services, solicit or entice away from Hyve Digital or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of Hyve Digital in the provision of the Services.
6.1 In consideration of the provision of the Services by Hyve Digital, the Customer shall pay the Charges, as stipulated in the Quotation or Proposal, in accordance with clauses 6.2 to 6.11.
6.2 The Customer will provide the funds to be used for the media spend on a monthly basis, should media spend be requested by the Customer on the account.
6.3 Should the Customer require Hyve Digital to use their credit/debit card in the platforms and the Customer transfers the money to Hyve Digital. There will be a 2% (two percent) of spend handling fee from Hyve Digital to the Customer to facilitate these requests.
6.4 All funds to be used in the platforms needs to be paid into Hyve Digitals bank account prior to the spend being added to the account or used in the platform. This is the Customer’s responsibility to ensure it is transferred ahead of time. Hyve Digital will not run the ads on the platform until the money reflects in their bank account.
6.5 The Management fees shall be payable monthly in arrears by the Customer to Hyve Digital on receipt of an invoice.
6.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay Hyve Digital on the due date, the Hyve Digital may:
6.6.1 Charge interest on such sum from the due date for payment at the annual prime lending rate, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand.
6.6.2 Suspend all Services until payment has been made in full.
6.7 Time for payment shall be of the essence of the Agreement.
6.8 All sums payable to Hyve Digital under the Agreement shall become due immediately on its termination, despite any other provision. This clause 6.8 is without prejudice to any right to claim for interest under the law, or any such right under the Agreement.
6.9 Hyve Digital may, without prejudice to any other rights it may have, set off any liability of the Customer to Hyve Digital against any liability of Hyve Digital to the Customer.
6.10 The Customer shall be liable for costs on Attorney and own client scale, as well as collection commission of 10% (ten percent) should it be necessary for Hyve Digital to collect outstanding payment from the Customer.
6.11 Unless stipulated otherwise, all fees/charges/payments owing are to be paid free of commission, bank charges and exchange, and without any deduction or set-off being applied thereto. The Customer shall not withhold the payment of any amounts owing to Hyve Digital in terms of this Agreement for any reason whatsoever.
7.1 If at any time following the execution of the Agreement, the Customer wishes to add additional Services or make changes to the Services, the Customer shall submit a written request for such changes to Hyve Digital (“Change Order Request”).
7.2 Upon receipt of a Change Order Request, and provided that it is willing and able to accommodate the changes so requested (not obligated to), Hyve Digital will, at its own discretion, provide the Customer with an updated Quotation/Proposal or written addendum to the Agreement, setting out –
7.2.1 a description of the changes requested and/or additional Services;
7.2.2 the Fees in respect of such changes or additional Services;
7.2.3 the payment terms for such Fees, in the event that they differ from to the standard payment terms set out herein; and
7.2.4 any other terms or conditions which are relevant to the change or the performance of any additional Services, including any Additional Terms.The Customer can’t transfer or sublicense the rights given in this clause.
7.3 Other than through a valid Change Order Request, the Hyve Digital is not obligated to provide any Out of Scope Services to the Customer.
8.1 Further to the clause 6.6.2 above, should the Customer request Hyve Digital to pause any further work on the Agreement or suspend any Services, Hyve Digital will do so without prejudice to any of its rights in terms of this Agreement. The Customer will remain liable to pay Hyve Digital all Fees (including monthly Fees for suspended Services) in respect of such Services unless expressly agreed otherwise by Hyve Digital.
8.2 Hyve Digital will be entitled to charge a reasonable re-initiation fee in respect of the re-commencement of any Services suspended at the instance of the Customer or for which there is a lag in the communication or feedback from the Customer exceeding 21 calendar days.
9.1 Hyve Digital reserves the right to publicise and discuss the work performed under this Agreement for the purposes of its case studies, press releases, and marketing materials. Such publicity may include, but is not limited to, the nature of the services provided, the Customer’s name, and the results achieved.
9.2 The right to publicise and discuss as provided for in clause 9.1 will not apply, without the consent of the Customer, in circumstances where Hyve Digital’s Service is such that it is white labelling for the Customer.
9.3 Hyve Digital’s right to publicize and discuss, as provided for in clause 9.1, is further subject to the data protection clause below below and the prescripts of POPIA, the GDPR or any other relevant data protection legislation, as applicable.
9.4 It is herein recorded that the Customer gives its express consent to the contents of this clause 9.
10.1 The Customer is assigned all intellectual property rights in the deliverables (on condition that it cannot commercially license or transfer these rights to non-agent third-parties without Hyve Digital’s consent), and retains rights in its own Intellectual Property. Both Parties will be obliged to enter into any documents, if necessary and reasonably required, to perfect the transfer, assignment or perpetual exclusive license of intellectual property rights in the deliverables to the Customer. Hyve Digital will use its own intellectual property in delivering the Services, and it will retain ownership in such Intellectual Property, including any Intellectual Property created pre the deliverable stage. To the extent the parties need to licence their Intellectual to the other to give effect to this Agreement, this should happen.
10.2 Save for Intellectual Property rights acquired, as provided for in clause 10.1, when the Agreement ends, the Customer is returned their Google Ads, Bing Ads, or Social Media accounts in the state at the date of expiration of the Agreement, excepting that any Hyve Digital-developed scripts or Intellectual Property used in the Customer’s account that can’t be transferred or assigned will be removed.
10.3 The Customer guarantees that using Input Materials won’t infringe on third-party rights and will compensate Hyve Digital for any related losses. Hyve Digital also guarantees that their Services won’t infringe on third-party Intellectual Property rights and will compensate the Customer for any related damages and/or losses up to the maximum amount that Hyve Digital’s liability insurance will cover.
10.4 All Intellectual Property Rights in and to any and/or all Input Material provided by the Customer, and/or all other Software, Materials and Deliverables and all Intellectual Property Rights in the Services and materials connected with or developed or produced by or on behalf of the Customer which may be provided to Hyve Digital or which Hyve Digital may have access to and/or come across in rendering its Services to the Customer, are owned by or assigned to the Customer or its licensors and this Agreement shall not operate to assign any goodwill or any rights, title, interest or Intellectual Property Rights in such Input Material or any other materials.
10.5 Hyve Digital shall not (and shall procure that its staff and contractors shall not) do anything or cause anything to be done which would prejudice the Customer’s Intellectual Property Rights in and to the Input Material and/or any other materials connected with or developed or produced by or on behalf of the Customer.
10.6 Hyve Digital shall not remove, obscure or change any notice concerning Intellectual Property Rights in or on any Input Material and/or any other materials connected with or developed or produced by or on behalf of the Customer, including any statements concerning the confidential nature of thereof.
10.7 The Customer hereby grants Hyve Digital, for the term of this Agreement or any renewal thereof, a non-exclusive, revocable, royalty-free, non-transferable license to use of the Customer’s Intellectual Property Rights as is necessary for Hyve Digital to perform in terms of its obligations in accordance with the terms of this Agreement.
11.1 The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, initiatives or any other information which can reasonably be determined to be of a confidential nature and has been disclosed to the Customer by Hyve Digital or its Agents and any other confidential information concerning Hyve Digital’s business or its products which the Customer may obtain.
11.2 The Customer may disclose such information:
11.2.1 To its Agents who need to know such information for the purposes of carrying out the Customer’s obligations under the Agreement; and
11.2.2 As may be required by law, court order or any governmental or regulatory authority.
11.3 The Customer shall ensure that its Agents to whom it discloses such information comply with this clause.
11.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Agreement.
11.5 Hyve Digital agrees to reciprocate the confidentiality requirements ascribed to the Customer in this clause 11.
*The Customer’s attention is particularly drawn to this clause*
12.1 This clause 12 sets out the entire financial liability of Hyve Digital (including any liability for the acts or omissions of its Agents) to the Customer in respect of:
12.1.1 Any breach of the Agreement;
12.1.2 Any use made by the Customer of the Services, the Deliverables or any part of them; and
12.1.3 Any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Agreement.
12.2 Nothing in these Conditions limits or excludes the liability of Hyve Digital:
12.2.1 For death or personal injury resulting from gross negligence; or
12.2.2 For any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by Hyve Digital.
12.3 Subject to clause 12.2:
12.3.1 The Customer hereby indemnifies Hyve Digital and its Agents and holds it harmless from and against any of the below mentioned losses, and Hyve Digital shall not be liable for:
12.3.1.1 Loss of profits; or
12.3.1.2 Loss of business; or
12.3.1.3 Depletion of goodwill and/or similar losses; or
12.3.1.4 Loss of anticipated savings; or
12.3.1.5 Loss of goods; or
12.3.1.6 Loss of contract; or
12.3.1.7 Loss of use; or
12.3.1.8 Loss or corruption of data or information; or
12.3.1.9 Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses; and
12.3.1.10 Hyve Digital’s total liability in contract, delict (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Agreement shall be limited to the Hyve Digital’s maximum liability insurance cover for the relevant breach.
13.Warranties and Representations
13.1 Each Party represents and warrants to and in favour of the other Party that –
13.1.2 it has full power, capacity and authority to enter into this Agreement and perform its obligations in terms of this Agreement;
13.1.3 this Agreement imposes valid and binding obligations upon it, and is enforceable against it in accordance with its terms;
13.1.4 the execution of this Agreement and the performance of its obligations herein does not and shall not contravene any law or regulation to which that Party is subject nor does it contravene any provision of that Party’s constitutional documents (where applicable) or conflict with or constitute a breach of any other agreement, obligation, restriction or undertaking which is binding on that Party;
13.1.5 it is not relying upon any statement or representation by or on behalf of the other Party, except those expressly set forth in this Agreement; and
13.1.6 It is entering into this Agreement with a full understanding of the terms, conditions and risks thereof and it is capable of and willing to assume those risks.
13.2 To the fullest extent permitted by law, Hyve Digital hereby excludes and disclaims all warranties and/or guarantees, express or implied, statutory or otherwise (save for those expressly recorded in this Agreement) in relation to any Services rendered in terms of this Agreement, including but not limited to any warranties relating to third-party products or software.
13.3 Hyve Digital does not give any warranty at any time to the Customer in relation to any software or other services procured by Hyve Digital on behalf of the Customer, it being expressly recorded that the Customer’s recourse in such instances shall lie directly against the manufacturer or licensor of such software or service.
14.1 All Personal Information supplied to Hyve Digital, or otherwise obtained by it, in connection with this Agreement, is processed by Hyve Digital as an Operator on behalf of the Customer and the Customer is the Responsible Party.
14.2 Unless otherwise specified the Customer agrees for purposes of this clause, that this Agreement represents the Customer’s documented instructions and hereby instructs Hyve Digital to process its personal information to the extent and in such a manner as is reasonably necessary to perform its obligations in terms of this Agreement.
14.3 Both Parties agree and undertake to take appropriate, reasonable, technical and organisational measures to ensure a level of security appropriate to the risk(s), including protecting against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to any Personal Information transmitted, stored or otherwise Processed.
14.4 Either Party shall notify the other immediately and without undue delay after becoming aware of a Personal Information breach.
14.5 At the written direction of the Customer, Hyve Digital shall delete or return all Customer Personal Information to the Customer at the termination of this Agreement unless applicable data protection laws require the storage of Customer Personal Information.
14.6 Hyve Digital agrees and undertakes by appropriate technical and organisational measures, to assist the Customer with the fulfilment of its obligations to respond to requests by and/or for Data Subjects exercising its/their rights in terms of the relevant Data Protection Legislation, which the Customer may receive under this Agreement.
14.7 The Customer acknowledges and agrees that details of the Customer’s name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of Hyve Digital in connection with the Services.
14.8 Hyve Digitals Privacy Policy, made available along with this Agreement and/or contained in the footer of Hyve Digitals website, is incorporated, by reference, into this Agreement.
14.9 Hyve Digital agrees to protect any personal information, in connection with this agreement, in line with Hyve Digital’s Privacy Policy, the prescripts of the Protection of Personal Information Act no.4 of 2013 (“POPIA”), the General Data Protection Regulation (EU) 2016/679 (“GDPR”) or any other relevant legislation in any applicable jurisdiction, as applicable. Likewise, any Personal Information supplied to the Customer by Hyve Digital, or otherwise obtained by it, in connection with this Agreement, is to be protected by the Customer in line with Hyve Digital’s Privacy Policy, the prescripts of POPIA, the GDPR and any other relevant legislation in any applicable jurisdiction, as applicable.
15.1 Without prejudice to any other rights or remedies which the Parties may have, either Party may terminate the Agreement without liability to the other immediately on giving notice to the other if:
15.1.1 The other Party fails to pay any amount due under the Agreement on the due date for payment and remains in default more than 7 (seven) days after being notified in writing to make such payment; or
15.1.2 The other Party commits any other material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 (thirty) days of that Party being notified in writing of the breach; or
15.1.3 The other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts; or
15.1.4 The other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party; or
15.1.5 A petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
15.1.6 The Defaulting Party is, by court order or otherwise, provisionally or finally wound up, sequestrated, liquidated, placed under business rescue, judicial management or administration, or an equivalent disability under any applicable laws of insolvency.
15.1.7 A creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 (fourteen) days; or
15.1.8 Any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1.3 to clause 15.1.7 (inclusive); or
15.1.11 The other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
15.2 On termination of the Agreement for any reason:
15.2.1 The Customer shall immediately pay to Hyve Digital all of Hyve Digital’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Hyve Digital may submit an invoice, which shall be payable immediately on receipt;
15.2.2 The accrued rights and liabilities of the Parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination shall not be affected.
16.1 Should any dispute, disagreement or claim arise between the parties (called hereafter “the dispute”) concerning this Agreement, that cannot be resolved between the Parties, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other, in writing, to a meeting, virtual or otherwise, to attempt to resolve the dispute within 7 (seven) Business days from date of the written invitation.
16.2 If the dispute can not be resolved by such negotiation, the parties shall submit the dispute to mediation administered by the Arbitration Foundation of South Africa (“AFSA”), upon the terms set by the AFSA Secretariat. It is herein recorded that the Parties agree that shall be conducted virtually.
16.3 Failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of AFSA by an arbitrator or arbitrators mutually agreed upon by the parties or, failing which, an arbitrator or arbitrators appointed by AFSA. The arbitration shall be conducted virtually, with the seat of arbitration being in Cape Town, South Africa. If an in-person hearing is deemed necessary by the arbitrator(s), it shall be held in South Africa, provided that the parties may agree to conduct such hearings virtually to avoid the need for physical attendance.
16.4 The award of the arbitrator shall be final and binding upon the parties.
16.5 No clause in this Agreement which refers to arbitration shall mean that either of the Parties shall be precluded from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the Arbitrator.
17.1 If, in any legal proceedings or arbitration proceedings relating to enforcement by either Party of its rights in terms hereof, a court or arbitrator awards costs to any Party, such costs shall be determined and recoverable on the scale as between an attorney and own client, and shall include collection charges, costs incurred by such Party in attempting to enforce its rights prior to the institution of legal proceedings, and costs incurred in connection with the satisfaction or enforcement of any award or judgment granted in favour of that Party in relation to its rights in terms of or arising out of this Agreement.
18.1 Hyve Digital is appointed as an independent contractor. Neither Hyve Digital nor any of its Agents are employees of the Customer for the purposes of any legislation that may normally be applicable to an employer/employee relationship. Each Party will bear full responsibility for the payment of all income taxes, employee taxes or other taxes payable to lawful authorities on account of any amounts received by it under this Agreement and in respect of its employees.
18.2 Save to the extent expressly provided for in this Agreement, no agency, employment, partnership or joint venture shall be deemed to exist between the Parties by virtue of this Agreement. The business operated by each Party is separate and apart from that operated by the other Party. Neither Party shall have the authority to act for or on behalf of the other Party, unless expressly stipulated otherwise in this Agreement (and if so, only to the extent provided for in this Agreement).
19.1 Hyve Digital shall have no liability to the Customer under the Agreement if it is prevented from, or delayed in performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of Hyve Digital or any other Party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, disease or default of Hyve Digital’s, its Agents or subcontractors.
20.1 Hyve Digital may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If Hyve Digital requests a change to the scope of the Services for this or any other reason, the Customer shall not unreasonably withhold or delay consent to it.
20.2 Subject to clause 20.1, no variation of the Agreement or these Terms and Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
21.1 A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a Party in exercising any right or remedy under the Agreement or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
21.2 Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.
22.1 If any clause of the Agreement (or part of any clause) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Agreement, and the validity and enforceability of the other provisions/clauses of the Agreement shall not be affected.
22.2 If a clause of the Agreement (or part of any clause) is found illegal, invalid or unenforceable, the provision/clause shall apply with the minimum modification necessary to make it legal, valid and enforceable.
23.1 The Agreement constitutes the whole agreement between the Parties and supersedes all previous agreements between the Parties relating to its subject matter.
23.2 Nothing in this clause shall limit or exclude any liability for fraud.
24.1 The Customer shall not, without the prior written consent of Hyve Digital, assign or deal in any other manner with all or any of its rights or obligations under the Agreement.
24.2 Hyve Digital may at any time assign or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party or agent.
24.3 Each Party that has rights under the Agreement is acting on its own behalf and not for the benefit of another person.
25.1 A person who is not a Party to the Agreement (not including a Party’s Agents) shall not have any rights under or in connection with it.
26.Notices
26.1 Hyve Digital chooses as its domicilia citandi et executandi, the physical and email addresses as set out in clause 1 of this Agreement for the purposes of the giving of any notice, the serving of any process and for any other purpose arising out of or in connection with this Agreement. Likewise, the Customer chooses the physical and email addresses as set out in any Work Order provided by the Customer or any Quotation or Proposal provided to the Customer, as applicable.
26.2 Each Party shall be entitled from time to time to vary its domicilia citandi et executandi to any other address which is not a post office box or post restante on written notice to the other Party.
26.3 Any notice given in terms of this Agreement shall be in writing and shall –
26.3.1 if delivered by hand, be deemed to have been duly received by the addressee on the date of delivery;
26.3.2 if transmitted by registered mail, be deemed to have been delivered to and received by the addressee on the fourth Business Day following the date on which it was posted;
26.3.3 if transmitted by electronic mail message, be deemed to have been delivered to and received by the addressee upon the expiry of 24 hours following its transmission, as recorded by the sender’s mail system; and
26.3.4 if sent by courier, be deemed to have been received on the date of delivery as recorded by the courier service concerned, unless the contrary is proved.
26.4 Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by a Party from the other Party shall constitute adequate written notice or communication to such Party.
27.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with South African Law.
27.2 The Parties irrevocably agree that the Republic of South Africa shall have exclusive jurisdiction, via the relevant dispute mechanisms, to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation (including non-contractual disputes or claims).
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