Introduction
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.
1. Interpretation
1.1 The following definitions apply throughout this Agreement:
Additional Terms — Additional terms and conditions upon which a specific service will be rendered, as notified by Hyve Digital from time to time.
Agreement — These standard terms of service, any annexures, quotes, proposals, operative Project Agreements and addendums executed by the Parties.
Hyve Digital — A private company incorporated in South Africa. Address: 3 Melrose Blvd, Melrose, Johannesburg, 2196. Email: hello@hyvedigital.ai.
Customer — The person, firm or company who purchases Services from Hyve Digital as set out in the Quotation, Proposal or Work Order.
Deliverables — All documents, products, materials and output developed by Hyve Digital in relation to the Services in any form.
Intellectual Property Rights — All patents, trademarks, copyright, design rights, trade secrets and all other intellectual property rights, whether registered or unregistered.
Services — The services and Ongoing Management Services as set out in the accepted Quotation or Proposal.
Work Order — A formal request from the Customer specifying the details of services to be provided.
1.2 Headings shall not affect interpretation.
1.3 A person includes a natural person, corporate or unincorporated body.
1.4 References to statutes include amendments and subordinate legislation.
2. Conflict / Ambiguity / Omissions
2.1 Where any conflict exists between these Terms of Service and any Proposal, Quotation or Work Order, 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 used, these Terms of Service shall apply.
3. Commencement and Duration
3.1 Services commence from the Service Commencement Date specified in the accepted Quotation or Proposal.
3.2 Services continue for the period stipulated and, if ongoing in nature, automatically continue on a month-to-month basis until terminated by either Party.
3.3 This Agreement may be renewed on the same or new terms as agreed in writing by the Parties prior to expiry.
4. Hyve Digital’s Obligations
4.1 Hyve Digital shall use reasonable endeavours to provide the Services and deliver the Deliverables.
4.2 Hyve Digital will refrain from any conduct detrimental to the image, good name and reputation of the Customer.
4.3 Hyve Digital will maintain regular contact with the Customer’s representatives for the duration of this Agreement.
4.4 Hyve Digital will supply requested information, documentation and reports within a reasonable time.
4.5 Hyve Digital will comply with all applicable laws and obtain all necessary licences, permits and approvals.
4.6 Hyve Digital will take all reasonable steps to deliver Services timeously, time being of the essence.
4.7 Hyve Digital may subcontract any part of the Services at its discretion but remains liable to the Customer for all obligations under this Agreement.
5. Customer’s Obligations
5.1.1 Cooperate with Hyve Digital in all matters relating to the Services.
5.1.2 Provide accurate Input Material and information in a timely manner.
5.1.3 Adhere to all acceptable use policies and terms applicable to any software or Intellectual Property relating to the Services.
5.1.4 Not do anything which might prejudice or impede the business, interests or goodwill of Hyve Digital.
5.1.5 Not resell, transfer or dispose of any Service to any third party without prior written consent from Hyve Digital.
5.1.6 Provide Hyve Digital with reasonable access to systems, operations and platforms necessary to render the Services.
5.2 If Hyve Digital’s performance is prevented or delayed by any act or omission of the Customer, Hyve Digital shall not be liable for any resulting costs, charges or losses.
5.3 The Customer shall be liable for all reasonable costs and losses sustained by Hyve Digital arising from the Customer’s fraud, negligence or failure to perform its obligations.
5.4 The Customer shall not solicit or employ any Hyve Digital employee, consultant or subcontractor during the Agreement or within 12 months after the last date of supply of Services, without prior written consent.
6. Charges and Payment
6.1 The Customer shall pay the Charges as stipulated in the Quotation or Proposal.
6.2 Media spend funds shall be provided by the Customer on a monthly basis where applicable.
6.3 A 2% handling fee applies where Hyve Digital is required to use the Customer’s credit or debit card in any platform.
6.4 All platform funds must be paid into Hyve Digital’s bank account prior to spend being applied. Ads will not run until funds are received.
6.5 Management fees are payable monthly in arrears on receipt of invoice.
6.6 If the Customer fails to pay on the due date, Hyve Digital may:
6.6.1 Charge interest at the annual prime lending rate from the due date, accruing daily and compounded quarterly.
6.6.2 Suspend all Services until payment is made in full.
6.7 Time for payment is of the essence.
6.8 All outstanding sums become due immediately upon termination of the Agreement.
6.9 Hyve Digital may set off any liability of the Customer against any liability of Hyve Digital to the Customer.
6.10 The Customer shall be liable for attorney costs on an attorney and own client scale, plus 10% collection commission, should Hyve Digital need to collect outstanding payment.
6.11 All fees are payable free of bank charges, commission and exchange, without deduction or set-off.
7. Change Orders
7.1 Any request for additional Services or changes must be submitted in writing by the Customer.
7.2 Hyve Digital will, at its discretion, provide an updated Quotation or written addendum detailing the changes, fees and any relevant terms.
7.3 Hyve Digital is not obligated to provide any Out of Scope Services outside of a valid Change Order.
8. Suspension of Services
8.1 If the Customer requests suspension of Services, the Customer remains liable for all fees unless expressly agreed otherwise by Hyve Digital.
8.2 Hyve Digital may charge a reasonable re-initiation fee upon recommencement of any suspended Services, or where there has been a communication lag from the Customer exceeding 21 calendar days.
9. Marketing and Publication
9.1 Hyve Digital reserves the right to publicise work performed under this Agreement for case studies, press releases and marketing materials, including the Customer’s name and results achieved.
9.2 This right does not apply where Hyve Digital’s Service involves white-labelling for the Customer, without the Customer’s consent.
9.3 All publicity is subject to applicable data protection legislation including POPIA and the GDPR.
10. Intellectual Property Rights
10.1 The Customer is assigned all Intellectual Property Rights in the Deliverables, subject to the condition that these rights cannot be commercially licensed or transferred to third parties without Hyve Digital’s consent. Hyve Digital retains ownership of its own pre-existing Intellectual Property.
10.2 Upon termination, the Customer’s accounts are returned in their state at expiry, except that any Hyve Digital-developed scripts or Intellectual Property that cannot be transferred will be removed.
10.3 The Customer guarantees that Input Materials will not infringe third-party rights and will compensate Hyve Digital for any related losses.
10.4 All Intellectual Property in Input Materials provided by the Customer remains owned by or assigned to the Customer or its licensors.
10.5 Hyve Digital shall not do anything to prejudice the Customer’s Intellectual Property Rights in any Input Materials or related materials.
10.6 Hyve Digital shall not remove or alter any Intellectual Property notices on Customer materials.
10.7 The Customer grants Hyve Digital a non-exclusive, revocable, royalty-free licence to use the Customer’s Intellectual Property as necessary to perform its obligations under this Agreement.
11. Confidentiality
11.1 The Customer shall keep all technical, commercial and confidential information disclosed by Hyve Digital in strict confidence.
11.2 Confidential information may only be disclosed to Agents who need it to perform the Customer’s obligations, or as required by law.
11.3 The Customer shall ensure its Agents comply with this confidentiality clause.
11.4 Confidential information shall not be used for any purpose other than to perform obligations under the Agreement.
11.5 Hyve Digital agrees to reciprocate all confidentiality requirements that apply to the Customer under this clause.
12. Limitation of Liability
The Customer’s attention is particularly drawn to this clause.
12.1 This clause sets out the entire financial liability of Hyve Digital to the Customer in respect of any breach of Agreement, use of Services, or any representation or delictual act arising in connection with the Agreement.
12.2 Nothing in these conditions limits Hyve Digital’s liability for death or personal injury resulting from gross negligence, or for fraud or fraudulent misrepresentation.
12.3 Subject to clause 12.2, Hyve Digital shall not be liable for:
12.3.1.1 Loss of profits
12.3.1.2 Loss of business
12.3.1.3 Depletion of goodwill or similar losses
12.3.1.4 Loss of anticipated savings
12.3.1.5 Loss of goods
12.3.1.6 Loss of contract
12.3.1.7 Loss of use
12.3.1.8 Loss or corruption of data or information
12.3.1.9 Any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses
12.3.1.10 Hyve Digital’s total liability shall be limited to its maximum liability insurance cover for the relevant breach.
13. Warranties and Representations
13.1 Each Party warrants that it has full power and authority to enter into and perform this Agreement, that the Agreement imposes valid and binding obligations, and that execution does not contravene any applicable law or existing agreement.
13.2 To the fullest extent permitted by law, Hyve Digital excludes all warranties and guarantees, express or implied, in relation to Services rendered under this Agreement.
13.3 Hyve Digital gives no warranty in relation to any software or services procured on behalf of the Customer. The Customer’s recourse lies directly against the manufacturer or licensor of such software or service.
14. Data Protection
14.1 All Personal Information supplied to Hyve Digital in connection with this Agreement is processed by Hyve Digital as Operator on behalf of the Customer as Responsible Party.
14.2 This Agreement represents the Customer’s documented instructions for Hyve Digital to process personal information to the extent necessary to perform its obligations.
14.3 Both Parties shall implement appropriate technical and organisational measures to protect against accidental or unlawful destruction, loss, alteration or unauthorised access to personal information.
14.4 Either Party shall notify the other immediately upon becoming aware of a Personal Information breach.
14.5 Upon termination, Hyve Digital shall delete or return all Customer Personal Information unless applicable law requires retention.
14.6 Hyve Digital will assist the Customer in responding to Data Subject rights requests received under this Agreement.
14.7 The Customer acknowledges that their name, address and payment record may be submitted to a credit reference agency.
14.8 Hyve Digital’s Privacy Policy is incorporated by reference into this Agreement.
14.9 Both Parties agree to protect personal information in line with Hyve Digital’s Privacy Policy, POPIA, the GDPR and any other applicable legislation.
15. Termination
15.1 Either Party may terminate the Agreement immediately on written notice if:
15.1.1 The other Party fails to pay any amount due and remains in default more than 7 days after written notice.
15.1.2 The other Party commits a material breach and fails to remedy it within 30 days of written notice.
15.1.3 The other Party is unable to pay its debts as they fall due or admits inability to pay.
15.1.4 The other Party enters into negotiations with creditors to reschedule debts or makes a compromise arrangement.
15.1.5 A petition, notice or order is filed for the winding up of the other Party.
15.1.6 The other Party is provisionally or finally wound up, sequestrated, liquidated or placed under business rescue.
15.1.7 A creditor attaches or takes possession of assets and such attachment is not discharged within 14 days.
15.1.8 Any equivalent insolvency event occurs in any applicable jurisdiction.
15.1.11 The other Party suspends or ceases all or a substantial part of its business.
15.2 On termination, the Customer shall immediately pay all outstanding invoices. Accrued rights and liabilities of both Parties are not affected by termination.
16. Dispute Resolution
16.1 Any dispute shall first be referred to negotiation, with the disputing Party inviting the other to a meeting within 7 business days of written notice.
16.2 If unresolved, the dispute shall be submitted to mediation administered by the Arbitration Foundation of South Africa (AFSA), conducted virtually.
16.3 Failing mediation, the dispute shall be finally resolved by arbitration in accordance with AFSA Rules, with the seat of arbitration in Cape Town, South Africa.
16.4 The arbitrator’s award shall be final and binding on both Parties.
16.5 Nothing in this clause prevents either Party from seeking urgent interim relief from a court of competent jurisdiction.
17. Costs
17.1 If costs are awarded in any legal or arbitration proceedings, they shall be recoverable on an attorney and own client scale, including collection charges and costs of enforcement.
18. Relationship
18.1 Hyve Digital is appointed as an independent contractor. Neither Hyve Digital nor its Agents are employees of the Customer.
18.2 No agency, partnership or joint venture exists between the Parties by virtue of this Agreement. Neither Party has authority to act on behalf of the other unless expressly stated.
19. Force Majeure
19.1 Hyve Digital shall not be liable for any failure or delay in performance caused by events beyond its reasonable control, including strikes, utility failures, acts of God, war, civil commotion, fire, flood, storm or default of subcontractors.
20. Variation
20.1 Hyve Digital may change the Services without notice to comply with applicable safety or statutory requirements, provided such changes do not materially affect the nature, scope or charges for the Services.
20.2 No other variation of this Agreement shall be valid unless made in writing and signed by both Parties.
21. Waiver
21.1 A waiver of any right is only effective if in writing and applies only to the specific circumstances for which it is given. No failure to exercise a right shall constitute a waiver of that right.
21.2 Rights under this Agreement are cumulative and do not exclude rights provided by law.
22. Severance
22.1 If any clause is found invalid, illegal or unenforceable, it shall be deemed not to form part of the Agreement without affecting the validity of remaining clauses.
22.2 Any invalid clause shall apply with the minimum modification necessary to make it legal, valid and enforceable.
23. Entire Agreement
23.1 This Agreement constitutes the whole agreement between the Parties and supersedes all previous agreements relating to its subject matter.
23.2 Nothing in this clause limits or excludes liability for fraud.
24. Assignment
24.1 The Customer shall not assign any rights or obligations under this Agreement without prior written consent from Hyve Digital.
24.2 Hyve Digital may assign or subcontract any of its rights or obligations at any time.
24.3 Each Party acts on its own behalf and not for the benefit of any other person.
25. Rights of Third Parties
25.1 A person who is not a Party to this Agreement shall have no rights under or in connection with it.
26. Notices
26.1 Hyve Digital’s chosen address for notices is as set out in clause 1 of this Agreement. The Customer’s chosen address is as set out in any Work Order, Quotation or Proposal.
26.2 Either Party may vary its address on written notice to the other, provided it is not a post office box.
26.3 Notices shall be deemed received as follows:
26.3.1 By hand — on the date of delivery.
26.3.2 By registered mail — on the fourth business day after posting.
26.3.3 By email — 24 hours after transmission as recorded by the sender’s mail system.
26.3.4 By courier — on the date of delivery as recorded by the courier service.
27. Governing Law and Jurisdiction
27.1 This Agreement 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 to settle any dispute arising out of or in connection with this Agreement.
