Flint Studio renders the Services to the Client on the basis set out in these Terms of Engagement. The Client agrees that these Terms of Engagement bind the Client. The Client Representative warrants that he or she is duly authorised to represent the Client and bind it to these Terms of Engagement.
In the event that the Client Representative lacks sufficient authority to bind the Client to these Terms of Engagement, the Client Representative agrees that he or she shall be jointly and severally liable with the Client for the Client’s performance in terms of these Terms of Engagement.
These Terms of Engagement contain a number of words and phrases which have specific meanings and most of which are capitalised. The Glossary contains many of these words and phrases (others are set out in these Terms of Engagement’ body and are designated by terms in quotation marks).
Flint Studio also applies certain rules when interpreting these Terms of Engagement in the Interpretation Guide.
These Terms of Engagement shall commence on the Commencement Date and endure until terminated on the basis set out in these Terms of Engagement.
Either Party may terminate the agreement contained in these Terms of Engagement on 3 months’ notice by delivering a written Termination Notice to this effect and only after –
the Services described in each Proposal in effect at the time of such notice have been fully rendered and the associated fees paid in full; or
the remaining Proposal/s in effect at the time of such notice have been terminated in accordance with these Terms of Engagement’s provisions and the Client has paid any fees due to Flint Studio as at the date of the notice in full.
In the event these Terms of Engagement are terminated for any reason whatsoever, the following clauses and their subsidiary clauses shall survive termination:
Prohibition on Interference and Solicitation;
Governing Law and Jurisdiction; and
Domicilium and Notices.
Flint Studio shall, during the currency of these Terms of Engagement, render the Services on the basis set out in the Project Specifications. The Project Specifications, as amended and signed by the Parties’ representatives from time to time, shall specify the Services to be rendered by Flint Studio pursuant to these Terms of Engagement, as well as any other responsibilities of the Parties.
Services required by the Client of Flint Studio shall be recorded in appropriate Project Specifications. Existing Project Specifications may be amended or wholly replaced by the Parties, provided that each amended or replacement version of the Project Specifications shall be effected in writing and be signed by both Parties’ representatives.
In the event the Client instructs Flint Studio to render Services in circumstances that do not, reasonably, allow for Project Specifications to be prepared, agreed and signed in advance, the Parties agree that Flint Studio shall confirm the Client’s instructions in appropriate Project Specifications within 2 days of receipt of the Client’s instructions. The Client agrees that Flint Studio’s subsequent Project Specifications shall bind the Client and govern it’s instructions. To the extent the Project Specifications do not accurately or completely record the Client‘s instructions, the Parties may negotiate and agree on an amendment to or replacement of the Project Specifications within 5 days of the Project Specifications’ delivery to the Client, failing which the Project Specifications already issued shall bind the Parties.
Project Specifications amendments or replacements may, at Flint Studio’s discretion, require consequential changes to Flint Studio’s fees payable and delivery timeframes for the Services described in the amended or replacement Project Specifications. Flint Studio shall notify the Client of any such changes in writing and Services based on such amended or replacement Project Specifications shall commence on acceptance of such changes by the Client.
Each of the Project Specifications (including each version of the Project Specifications) shall become binding on the Parties upon signature of the Project Specifications by both Parties and shall be governed by the terms of the main body of these Terms of Engagement.
To the extent a conflict or inconsistency arises between the Project Specifications, as amended from time to time, and the main body of these Terms of Engagement in respect of the Services’ description, the Project Specifications’s provisions shall prevail to the extent of the inconsistency.
The Services shall, unless specified in the Project Specifications or otherwise agreed in writing, be rendered during business hours.
The Parties expressly record that each of the Services constitutes a separate and distinct service, and nothing set out in these Terms of Engagement shall be construed as necessarily obliging Flint Studio to render all such Services as a single, indivisible service.
Certain of the Services set out in the Project Specifications and which are to be provided by Flint Studio to the Client in terms of these Terms of Engagement may be Outsourced Services provided that appointing, managing and/or terminating 3rd Party service providers to render Outsourced Services shall not be materially detrimental to Flint Studio’s performance of its obligations and/or compromise the service levels agreed to in these Terms of Engagement.
Flint Studio may, in its discretion, at any time and from time to time –
Flint Studio undertakes to ensure that the standard of the Services it shall render to the Client in terms of these Terms of Engagement shall be in accordance with the Project Specifications, a Service Level Agreement (where applicable) or, in the absence of the Project Specifications or Service Level Agreement, in accordance with relevant industry standards.
Should the Client unreasonably delay the Services for any reason whatsoever, the Client acknowledges and agrees that –
If this delay exceeds 20 days, the Services may be suspended pending the resolution of the cause of the delay and, subsequently, reinstated subject to payment of a reinstatement fee specified in the Project Specifications.
The Client shall, as consideration for the Services to be rendered by Flint Studio in terms of these Terms of Engagement and described in a Proposal and Project Specifications, effect payment to Flint Studio of its fees which are set out in the Proposal and, as the case may be, Project Specifications.
Flint Studio may require deposits, payable in advance, for the Services and such deposits shall be reflected in the Proposal. Flint Studio shall not be required to render Services subject to deposits until such time as the deposits are paid in full.
The Client shall pay the fees, to Flint Studio, in the amounts and on the terms stated in Flint Studio’s interim and final invoices issued to the Client from time to time. In the event that Flint Studio’s invoices do not state Flint Studio’s payment terms, invoices are payable on Flint Studio’s delivery of its Services deliverables (or, where Services are rendered in phases, on delivery of each phase’s deliverables).
The Client agrees to reimburse Flint Studio for all reasonable disbursements incurred by Flint Studio for the purposes of carrying out the Services to the Client. Flint Studio will obtain written authorisation from the Client prior to incurring any disbursements which will be additional to the fees as set out in the Proposal.
Unless otherwise agreed in writing or in a subsequent Proposal, the fees shall escalate at the rate of 10% per annum on each anniversary of the commencement date of these Terms of Engagement.
In the event of the Client failing to timeously effect payment of any amount due to Flint Studio in terms of these Terms of Engagement, Flint Studio shall, furthermore, be entitled to suspend the provision of the Services in terms of these Terms of Engagement for any period in which any payment remains outstanding.
Flint Studio reserves the right to charge a 100% cancellation fee, which shall be specified in the Proposal where appropriate, should the Client unilaterally terminate these Terms of Engagement in a manner and/or for a reason not expressly provided for in these Terms of Engagement.
The Client agrees that it shall pay all Flint Studio’s expenses in recovering any amounts the Client owes Flint Studio, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
Flint Studio retains ownership of all Intellectual Property Rights in the Bespoke Content until such time as the Client pays Flint Studio’s fees, in full, at which time Flint Studio shall grant the Client a non-exclusive Content License in respect of the Bespoke Content.
The Client may, subject to Flint Studio’s agreement, pay an agreed premium fee in order to an expanded Content License in respect of the Bespoke Content. Any applicable premium fees will be set out in an appropriate Project Specifications.
Flint Studio retains ownership of all Intellectual Property Rights in the Flint Studio’s Content.
Flint Studio grants the Client a non-exclusive Content License in respect of Flint Studio’s Content.
The Client retains ownership of all Intellectual Property Rights in the Client’s Content.
The Client grants Flint Studio a non-exclusive and sub-licensable Content License in respect of the Client’s Content.
The Parties acknowledge that the applicable 3rd Party shall retain ownership of all Intellectual Property Rights in the 3rd Party Content and is licensed on terms and conditions determined by the 3rd Party concerned.
These Terms of Engagement do not purport to transfer ownership of any Intellectual Property Rights in the 3rd Party Content to either Party.
Except to the extent these Terms of Engagement may permit, neither Party may –
remove and/or tamper with the copyright, trademark and other proprietary notices contained on or in Intellectual Property licensed to that Party and shall reproduce such notices on all copies of such Intellectual Property;
save as provided for in these Terms of Engagement, reproduce or modify licensed Intellectual Property; or
cause or permit any 3rd Party to discover the source code of any software constituting either Party’s Intellectual Property except where the Party concerned as permission to do so; or
rent, lease or otherwise distribute any Intellectual Property or its direct derivatives to any 3rd Parties.
Both Parties warrant that they have sufficient Intellectual Property Rights to make Intellectual Property available to each other as contemplated in these Terms of Engagement.
Flint Studio and the Client hereby appoint those persons identified in the Proposal as their representatives for purposes of these Terms of Engagement. The persons so nominated by Flint Studio and the Client shall liaise with each other in relation to all matters pertaining to the Parties’ performance in terms of these Terms of Engagement.
Any notice or communication, which either Party may provide to the other Party other than by the agency of the respective representatives identified in the Proposal, shall be invalid and ineffectual.
The Receiving Party shall not, without the prior written consent of the Disclosing Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of the Disclosing Party) disclose Confidential Information to any person, and/or make use of Confidential Information for any purposes other than in connection with the rendering of the Services.
The Receiving Party may disclose Confidential Information to its officers, employees and sub contractors but only to the extent required for the purposes of the rendering of the Services pursuant to the provisions hereof.
The Receiving Party shall inform any officer, employee or sub contractor to whom it provides Confidential Information, that such information is confidential and shall instruct them to keep it confidential and not to disclose it to any 3rd Party (other than those persons to whom it has already been disclosed in accordance with the terms of these Terms of Engagement), on the basis that the Disclosing Party is responsible for any disclosure, in breach of this clause, by the person to whom it is disclosed.
Notwithstanding the provisions of this clause, either Party shall be entitled in its discretion from time to time to publish and/or to make known to members of the public, including (without limitation) its shareholding, the details of its financial performance, its financial performance forecast and the Party’s strategic planning.
Neither Party shall knowingly, for the duration of these Terms of Engagement and for a period of 1 year after these Terms of Engagement terminate for any reason, furnish any information or advice to anyone else which results in any staff member or any representative and/or agent of the other Party who was involved in the implementation or execution of these Terms of Engagement to terminate his employment with that Party and/or any other contractual relationship and/or becoming employed by, or directly or indirectly interested in any manner in, any concern which carries on business, directly or indirectly, in competition with any part, aspect or facet of the business conducted by the other Party.
Should any provisions of this clause or part thereof be found by any competent court to be defective or unenforceable for any reason whatever, the remaining provisions of this clause shall continue to be of full force and effect.
To the fullest extent permissible by law, Flint Studio disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client utilises the Services at its own risk.
The Client agrees that Flint Studio is unable to, and is not required to, guarantee any particular commercial results or consequences of the Services other than rendering the Services themselves.
The Client agrees that neither Flint Studio or Flint Studio’s Associates shall be liable for any Losses however arising and whatever the cause, in particular pursuant to and in furtherance of these Terms of Engagement.
The Client irrevocably waives any claims it may have against Flint Studio arising out of, or related to (and agrees not to institute any proceedings in respect of), the Services or these Terms of Engagement more than 1 year after the cause of action relating to such claim or legal action arose.
Flint Studio’ liability to the Client shall furthermore be limited to the total amount of the fees charged and paid by the Client in the month in which the liability arose.
The Client hereby indemnifies Flint Studio and Flint Studio’s Associates from any Losses, which may arise as a result of the Client’s unlawful conduct, wilful misconduct, negligence and/or gross negligence.
Subject to any other provision of these Terms of Engagement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of these Terms of Engagement and unreasonably fail to remedy such breach within (10) ten days of receiving written notice from the other Party (“the Aggrieved Party”) requiring the Offending Party to do so, then the Aggrieved Party shall be entitled, without prejudice to its other rights in law to -
claim specific performance of all of the Offending Party’s obligations whether or not due for performance,
in either event without prejudice to the Aggrieved Party’s right to claim damages.
Either Party shall be entitled to summarily terminate these Terms of Engagement in the event of the other Party being placed in liquidation or under judicial management, whether provisionally or finally, or in the event of the other Party entering into a compromise with its creditors generally. All amounts due by the other Party in terms of these Terms of Engagement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.
Should any dispute, disagreement or claim arise between the Parties (called hereafter “the dispute”) concerning these Terms of Engagement, the Parties shall try to resolve the dispute by negotiation. This entails that the one Party invites the other in writing to a meeting and to attempt to resolve the dispute within 5 (five) days from date of the written invitation.
If the dispute has not been resolved by such negotiation, the Parties shall submit the dispute to AFSA administered mediation, upon the terms set by the AFSA Secretariat.
Failing such a resolution, the dispute, if arbitrable in law, shall be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.
These Terms of Engagement shall be governed in all respects by and shall be interpreted in accordance with the laws of the Republic of South Africa and the Parties hereby consent and submit to the jurisdiction of the South Gauteng High Court, Johannesburg.
An Interrupted Party shall be relieved of its obligations in terms of these Terms of Engagement during the period that the Interruption Event and its consequences continue, only to the extent so prevented, and shall not be liable for any Losses which the other Party may suffer as a result.
The Interrupted Party shall notify the other Party of an Interruption Event in writing as soon as it becomes reasonably aware of the Interruption Event as such.
In the event that an Interruption Event exceeds –
20 consecutive days and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, the Parties agree to meet and negotiate the suspension, termination or restructuring of these Terms of Engagement; or
3 consecutive months and in the event that alternative services and/or facilities cannot be provided by the Interrupted Party or its nominee, either Party may terminate these Terms of Engagement and shall only remain liable for performance under these Terms of Engagement which fell due immediately prior to the Interruption Event.
Save as expressly stated to the contrary herein, no Party shall be entitled to cede, delegate, assign or otherwise transfer all or any of its rights, interests or obligations under and/or in terms of these Terms of Engagement except with the prior written consent of the other Parties.
If any clause or term of these Terms of Engagement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of these Terms of Engagement shall be deemed to be severable therefrom and shall continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these Terms of Engagement.
The Parties choose domicilium citandi et executandi (“domicilium”) for all purposes arising from or pursuant to these Terms of Engagement, their address and contact details set out in the Proposal in respect of each Party’s representative.
Any Party hereto shall be entitled to change its domicilium from time to time, provided that any new domicilium selected by it shall be an address other than a box number in the Republic of South Africa, and any such change shall only be effective upon receipt of notice in writing by the other Parties of such change.
All notices, demands, communications or payments intended for any Party shall be made or given at such Party’s domicilium for the time being.
A notice sent by one Party to another Party shall be deemed to be received:
on the same day, if delivered by hand;
on the same day of transmission if sent by telefax with receipt received confirming completion of transmission;
on the third day after dispatch, if sent by prepaid courier.
Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.
This document constitutes the sole record of the Agreement between the Parties in regard to the subject matter thereof.
No Party shall be bound by any express or implied term, representation, warranty, promise or the like, not recorded herein.
No addition to, variation or consensual cancellation of these Terms of Engagement, or this clause, shall be of any force or effect unless in writing and signed by or on behalf of all the Parties.
No indulgence, which either Party (“the Grantor”) may grant the other (“the Grantee(s)”), shall constitute a waiver of any of the rights of the Grantor, who shall not thereby be precluded from exercising any rights against the Grantee(s) which might have arisen in the past or which might arise in the future.
The Parties undertake at all times to do all such things, to perform all such acts and to take all such steps and to procure the doing of all such things, the performance of all such actions and the taking of all such steps as may be open to them and necessary for or incidental to the putting into effect or maintenance of the terms, conditions and import of these Terms of Engagement.
In these Terms of Engagement, headings are for convenience and are not intended to be used to interpret the Terms of Engagement.
If these Terms of Engagement refer to a Party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Terms of Engagement will also be applicable to and binding on that party’s liquidator or trustee, as the case may be.
Unless these Terms of Engagement indicate to the contrary, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of these Terms of Engagement, shall not apply.
Where in these Terms of Engagement provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties.
The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example.
Where these Terms of Engagement specifies any number of days, the number of days excludes the first day and includes the last day unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Generally speaking, references to a “day” are references to typical business days.
Any reference to “business hours” shall be construed as being the hours between 08h30 (eight hours and thirty minutes) and 17h00 (seventeen hours) on any day. Any reference to time shall be based upon South African Standard Time;
All annexures, addenda and amendments to these Terms of Engagement form an integral part of these Terms of Engagement and, therefore, Flint Studio’s contract with the Client.
The words and phrases in the Glossary bear the meanings assigned to them and related expressions bear corresponding meanings.
“3rd Party” means a person other than the Client and Flint Studio;
“AFSA” means the Arbitration Foundation of South Africa;
“Associates” means a Party’s officers, servants, agents or contractors or other persons in respect of whose actions that Party may be held to be vicariously liable;
“Client” means the Party identified in the Proposal as the Client;
“Client Representative” means the person who purports to represent the Client and appoint Flint Studio to render the Services to the Client;
“Commencement Date” means the date these Terms of Engagement become effective, bind the Parties and which is either the date on which –
“Confidential Information” means any information or data of any nature, tangible or intangible, oral or in writing and in any format or medium, which –
is or ought reasonably to be identifiable as confidential and/or proprietary to the Disclosing Party; or
may come to the knowledge of the Receiving Party by whatsoever means.
The Disclosing Party’s Confidential Information may include (and is not limited to) the following information, regardless of whether the information is marked as being “confidential”, “restricted” or “proprietary” (or any similar designation) –
information relating to the Disclosing Party’s business activities, business relationships, products, services, processes, data, and staff, including agreements to which the Disclosing Party is a party;
the Disclosing Party’s technical, scientific, commercial, financial and market information, methodologies, formulae and trade secrets;
the Disclosing Party’s architectural information, demonstrations, plans, designs, drawings, processes, process maps, functional and technical requirements and specifications, and related data;
where the Disclosing Party is the Client, demographic and other data relating to any of the Client’s staff or potential staff, which data may be disclosed to Flint Studio by the Client in order for Flint Studio to render the Services to the Client in terms of these Terms of Engagement.
Confidential Information excludes information or data which –
is lawfully in the public domain at the time it is disclosed to the Receiving Party; or
subsequently lawfully becomes part of the public domain by publication or otherwise; or
is or becomes available to the Receiving Party from a source other than the Disclosing Party which is lawfully entitled, without any restriction on disclosure, to disclose such information to the Receiving Party; or
is disclosed pursuant to a requirement or request by operation of law, regulation or court order but then only to the extent so disclosed and then only in the specific instance and under the specific circumstances in which it is obliged to be disclosed;
provided that –
the onus shall at all times rest on the Receiving Party to establish that such information falls within such exclusions; and
the disclosed information will not be deemed to fall within these exclusions merely because the information forms part of more general information in the public domain or in a Party’s possession; and
the determination of whether information is Confidential Information shall not be affected by whether or not such information is subject to, or protected by, common law or statute related to copyright, patent, trademarks or otherwise;
“Content” means any material capable of and in which copyright protection subsists (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images);
“Content License” means a perpetual, irrevocable, worldwide and royalty-free license granted to the Client to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute the subject matter of the license for the limited purpose for which the Services are rendered;
“Disclosing Party” means the Party disclosing Confidential Information to the Receiving Party;
“Flint Studio” means Companion’s Business Design CC trading as Flint Studio, a company duly registered and incorporated in accordance with the laws of the Republic of South Africa and with registration number 1996/001375/23;
“Intellectual Property” means the expression and/or representation of an intellectual and/or creative process and includes, but not be limited to, any text, images, data, multimedia, ideas, source code, concepts, know-how, data processing techniques, copyrights, trademarks, logos, patents, designs, inventions and includes Content –
Created, invented and/or developed by Flint Studio at the Client’s specific instance and request of pursuant to a Proposal (“Bespoke Content”) or otherwise during the course of rendering the specific Services giving rise to this Content; and
Developed and owned by any 3rd Party (“3rd Party Content”);
“Intellectual Property Rights” means rights in Intellectual Property;
“Interruption Event” means strike, lock-out, fire, explosion, floods, riot, war, accident, act of nature, embargo, legislation, shortage of or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labour, government interference or control, or any other cause or contingency beyond the control of the Party concerned;
“Interrupted Party” means a Party prevented or restricted directly or indirectly from carrying out all or any of its obligations under these Terms of Engagement by reason of an Interruption Event;
“Losses” means all Losses (including, but not limited to those in respect of injury, damage to physical property or loss of life), liabilities, costs, expenses, fines, penalties, damage, damages and claims, and all related costs and expenses (including legal fees on the scale as between attorney and own client, tracing and collection charges, costs of investigation, interest and penalties);
“Outsourced Services” means Services outsourced to and rendered by 3rd Party service providers to the Client;
“Parties” means Flint Studio and the Client;
“Project Specifications” means the document/s detailing Flint Studio’s Services deliverables in respect of each project undertaken by Flint Studio for the Client, as amended from time to time;
“Proposal” means the document outlining the proposed Services to be provided to the Client by Flint Studio together with the associated fees and charges for the Services to be provided;
“Receiving Party” means the Party directly or indirectly receiving Confidential Information from the Disclosing Party;
“Services” means the services to be rendered to the Client as described in the Proposal, as read with the Project Specifications;
“Service Level Agreement” means a Service Level Agreement signed by the Parties regarding the service levels required from Flint Studio when performing the Services for the Client;
“Terms of Engagement” means these terms and conditions, as amended from time to time; and
“Termination Notice” means the notice terminating these Terms of Engagement referred to in the Duration and Termination clause.