Terms And Conditions

1. INTRODUCTION

1.1. Inspired Business Design (Pty) Ltd registration no. 2012/211432/07 (“Inspired”) own and operates Inspired Marketing (inspiredmarketing.co.za) and Inspired Publications (inspiredpublications.co.za), and is located in Cape Town, South Africa.

1.2. Inspired is a Digital Marketing Agency that develops and supplies automated marketing systems which include the mapping, design, digitization, automation and activation of campaigns on behalf of contracted clients, approved suppliers and other persons or entities in accordance with the agreed services as set out in the relevant Agreements or as commissioned from time to time.

1.3. The Client is desirous of contracting with Inspired for the performance of the Services and on the terms and conditions provided for in this Agreement.

1.4. Inspired and the Client acknowledge and agree that their relationship shall at all times be governed by the principle of good faith and undertake to exercise their responsibilities towards each other with an appropriate degree of professionalism, transparency, mutual respect and consideration.

1.5. Save as contemplated in sections 4 and 1.6 below or as otherwise recorded in an Agreement, nothing in this Agreement shall be construed as creating any agency, partnership or joint venture relationship between the parties and neither party shall be capable of binding the other to any obligation save as may be expressly contemplated and provided for herein.

1.6. For certain types of Third Party Services, such as the management of lead generation, social media, and sourcing data from various platforms for the purposes of creating performance reports, Inspired shall be authorised to act as the Client’s agent in dealing with third parties. Where the Client provides Inspired with access credentials to the Client’s accounts with third parties, or authorises Inspired to create any such accounts, including but not limited to search engine or social media advertising accounts and the like, the Client acknowledges and agrees that Inspired shall be authorised to operate and transact on such accounts as an agent for and on behalf of the Client.

1.7. The Client acknowledges and agrees that Third-Party Services may be subject to their own additional terms and conditions and that it shall be the responsibility of the Client to familiarise itself and comply with any such Third-Party Service terms and conditions.

2 DEFINITIONS

2.1. In this Agreement, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:

2.1.1. “Agreement” means this agreement and includes any annexures and/or amendments recorded in writing and signed by the Parties;

2.1.2. “Approved Suppliers” means persons (a natural person or legal beneficiary) who are approved to supply digital platforms and/or marketing services offered by Inspired, and who are authorised to promote and/or operate their business activities through Inspired.

2.1.3. “Business Day” means any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;

2.1.4. “Client” means persons (a natural person or legal beneficiary) who place orders, or enter into a Service Agreement with Inspired, either verbally or in writing;

2.1.5. “Client data” means any data, information or material that the Client provides to Inspired and the SaaS platform;

2.1.6. “Commencement Date” means the date on which the Agreement between the Parties comes into effect, which date will be as agreed upon;

2.1.7. “Companies Act” means the Companies Act No. 71 of 2008 as amended from time to time;

2.1.8. "Confidential Information" of a Party shall mean any information disclosed by that Party to the Receiving Party prior to the conclusion of this Agreement, in terms of this Agreement or otherwise in connection with this Agreement;

2.1.9. “data message” means a data message as defined by the Electronic Communications and Transactions Act No. 25 of , including but not limited to an email message;

2.1.10. “electronic signature” shall mean an electronic signature as defined by the Electronic Communications and Transactions Act No. 25 of 2002;

2.1.11. “hosting services” means the provision of access to a dedicated or shared server onto which any Service Deliverable has been installed and that is ordinarily capable of accepting requests from connected computing devices;

2.1.12. “Inspired” means Inspired Business Design (Pty) Ltd Registration No. 2012/211432/07.

2.1.13. “Intellectual Property” shall mean all intellectual property in the Inspired business system, including but not limited to the text, diagrams, algorithms, equations, methods and concepts incorporated in the Inspired business system (insofar as same are not the intellectual property of other persons), the Inspired system processes and methods, the trade name ‘Inspired Business Design’, ‘Inspired Marketing’, ‘Inspired Publications’, the Inspired Logo, Trademark, Taglines;

2.1.14. “month” means a calendar month;

2.1.15. “Parties” means the parties to this Agreement collectively and “Party” shall mean any one of them as the context may require;

2.1.16. “Personal Data” means personal data as defined in the Protection of Personal Information Act No.4 of 2013;

2.1.17. “Agreement” means any written document, including but not limited to a service agreement, estimate or quote expressly or implicitly accepted by the Client describing the Services or containing additional specific terms and conditions applicable to the Services;

2.1.18. “Services” means all services rendered by Inspired or the Approved Supplier to the client in terms of this Agreement;

2.1.19. “Service Deliverable” means any product or other form of service deliverable supplied or to be supplied by Inspired;

2.1.20. “Service Tariff” means the service tariff and VAT as set out in the Inspired rate card, service plans, quotes and cost estimates which are subject to change from time to time.

2.1.21. “Signature Date” means, in respect of any document associated with this Agreement, the date of signature thereof by the Party signing last in time; and

2.1.22. “Third Party Services” means Services provided by persons other than Inspired that are procured by Inspired for the benefit of the Client.

2.2. In this Agreement, unless the context clearly indicates otherwise:

2.2.1. clause headings in this Agreement have been inserted for convenience only and will not be taken into consideration in its interpretation;

2.2.2. an expression which denotes:

2.2.2.1. any gender includes the other genders;

2.2.2.2. a natural person includes a juristic person and vice versa; and

2.2.2.3. the singular include the plural and vice versa.

2.3. If any provision in the Introduction or this clause 1 is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that such provision is contained in the Introduction or this clause 1, effect shall be given thereto as if such provision were a substantive provision in the body of the Agreement.

2.4. The terms of this Agreement have been negotiated and the rule of interpretation which construes the interpretation of the Agreement against the drafter thereof shall not be applicable thereto.

2.5. The use of the word “including” followed by a specific example, or examples, shall not be construed as limiting the meaning of the general wording preceding it, and the eiusdem generis rule shall not apply in the interpretation of such general wording or such specific example or examples;

2.6. Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re-enacted from time to time.

2.7. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday or public holiday, in which case the last day shall be the next Business Day.

2.8. Any reference to days (other than Business Days), months or years, shall be a reference to calendar days, calendar months or calendar years, as the case may be;

2.9. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention.

3. APPOINTMENT

3.1 The Client hereby confirms the appointment of Inspired to supply the Services and Inspired hereby accepts the appointment.

4. BINDING AGREEMENT

4.1. Where the terms of this Agreement are communicated in paper form only, this Agreement shall become binding from the date of signature of the last party signing a paper copy thereof.

4.2. Wherever the terms of this Agreement are communicated and offered by electronic means, including by electronic mail or hyperlink and irrespective of whether a paper copy is produced or not, this Agreement shall become binding from the earlier of the date on which the accepting party first expressly indicates its acceptance of the terms hereof in writing including, but not limited to, by means of a data message or electronic signature, or the date on which the last signing party signs any printed copy thereof.

4.3. Unless otherwise terminated pursuant to the provisions of section 17 or by written agreement between the parties, this Agreement shall continue to endure and shall apply to all Services supplied by Inspired to the Client at any time.

4.4. Where the Client instructs Inspired to commence with the provision of any particular services prior to a Agreement having been formally accepted and agreed to, the Client shall be liable for all time and materials allocated by Inspired towards the supply of any such Services.

5. PROVISION OF MATERIALS, INFORMATION & CONSENT

5.1. The Client shall provide Inspired with the materials and information identified in any accepted Agreement and any other information which Inspired may reasonably require or request from the Client in order to facilitate or enable the provision of the Services by Inspired and Inspired shall not be liable for any service delays or service interruptions occasioned by the Client’s non-compliance with the provisions of this clause.

5.2. The Client hereby indemnifies and holds Inspired harmless against all liabilities, costs and expenses which Inspired may incur as a result of any claim:

5.2.1. for breach of any third-party Intellectual Property Rights arising from the use by Inspired of any intellectual property, including specifications, written materials, data, tables or software supplied to Inspired by the Client or any person acting on the Client’s behalf; and

5.2.2. arising as a result of any content posted by the Client or any third party to any social media platform, website or by means of any mail or other form of communication service that is managed or maintained by Inspired for the Client.

6. INTELLECTUAL PROPERTY RIGHTS

6.1. Subject to the provisions of this Agreement, all original content and intellectual property developed specifically for the Client during the provision of the Services by Inspired shall vest entirely with the Client on receipt of payment in full for the Services. Inspired may, however, reuse any knowledge, skills, tools, methods and experience that its personnel gather during the performance of the Services hereunder and such reuse shall not be deemed to be in violation of this Agreement.

6.2. Where Inspired incorporates the intellectual property of any third party into any materials or software authored or developed for the Client, Inspired shall ensure that it has all necessary permissions and consents required to enable it do so. Ownership of any such third-party intellectual property shall not pass to the Client and Inspired shall ensure that the Client shall be licensed to make use of any such third party intellectual property on terms and conditions to be disclosed to the Client by Inspired. The Client agrees to indemnify Inspired in respect of any failure on the Client’s part to comply with the terms of this Agreement, or to abide by the terms of any specific licences granted to it in respect of any such third-party intellectual property.

6.3. Save for as set out in this clause, the Client acknowledges and agrees that Inspired shall exclusively own and retain all rights in the know-how, methods, tools and processes that it uses in the normal course of its business or that have been designed or created for the purposes of carrying out the Services and that its personnel may re-use any skills developed by them during the performance of the Services without being in breach of the terms hereof.

6.4. All Intellectual Property in the Inspired business system shall be and continue to remain the sole property of Inspired Business Design (Pty) Ltd. The client shall not question or dispute the ownership of such Intellectual Property at any time during the continuation in force of the Agreement or thereafter. The Client shall not be entitled to use, copy or replicate in any form, any part, or the entirety of any Intellectual Property in the Inspired business system, including the Logo, Trademark, Taglines, or the right to alter the system in any way, unless written permission is provided by Inspired.

7. SERVICE LEVELS & PREPARATION

7.1. Inspired undertakes to supply the Services in a professional and workmanlike manner and in accordance with any agreed service levels appropriate to the Services as contained in this Agreement or any other annexure or service level agreement that the parties may agree to in writing.

7.2. Save as may expressly be provided for to the contrary in any annexure or Agreement, Inspired shall undertake such preparation and provide such training to its own personnel as may be necessary for the due performance of its duties in terms of this Agreement.

8. SPECIFIC PROVISIONS RELATING TO SERVICE DELIVERABLES, DESIGN & DEVELOPMENT WHERE APPLICABLE

8.1. It shall be the Client's exclusive responsibility to ensure that the design, functional and technical requirements and parameters of any Service Deliverable to be designed or developed by Inspired, or third-party deliverables including software to be supplied by Inspired, are fully documented in any specification drawn by Inspired or any third party and that any particular Client requirements are comprehensively recorded therein. The consequences of any failure so to do, financial or otherwise, will be for the sole account of the Client who shall be bound to accept Inspired’s reasonable interpretation and understanding of the Client’s requirements as documented or as otherwise communicated.

8.2. Inspired makes no warranty that operation of any Service Deliverable developed or supplied by it, shall be completely error-free, nor that any particular website or web application that it or technologies supplied by it as a reseller, will be compatible with any particular web browser or other software other than the browsers and software expressly identified and contemplated in any Agreement or development specification approved of by Inspired in writing.

8.3. Once Inspired determines that the design or development of any Service Deliverable, which for the purposes of this clause 8 shall be deemed to include any particular milestone, component or module of a Service Deliverable, has been completed or is ready for the Client to review, Inspired will notify the Client in writing.

8.4. Either party may request or recommend a change to any Deliverable by preparing and submitting a written Change Request which shall set forth any requested or proposed change.

8.5. Inspired shall act professionally in evaluating any requested changes to Service Deliverables and in accordance with this Agreement, within its reasonable discretion. Notwithstanding the aforegoing, neither Inspired nor the Client shall be obliged to agree to any Change Request but neither party will unreasonably withhold its agreement to such request or recommendation, and on such terms and conditions as may be appropriate.

8.6. Inspired and the Client shall communicate in writing, or shall meet, to discuss any Change Request as soon as is reasonably practicable.

8.7. Any agreement to a Change Request shall become valid as an amendment to the Agreement only when recorded in writing and signed by an authorised representative of each party.

8.8. Until such time as any Change Request is formally agreed to in writing and becomes effective, Inspired shall, unless otherwise agreed, continue to perform and to be paid as if such change had not been agreed to.

8.9. Inspired reserves the right to charge a reasonable fee for considering Change Requests submitted by the Client and for preparing service impact assessments, estimates or quotations related thereto which fee shall be agreed upon between the parties prior to the submission of any such assessment, estimate or quote to the Client.

8.10. Any clause in this Agreement restricting sub-contracting shall not apply to any sub-contract with a body incorporated or carrying on business in the Republic of South Africa and that is wholly or partially owned by Inspired Business (Pty) Ltd nor to the outsourcing of any hosting services, where applicable, as defined in clause 8.6 hereof.

8.11. Where Inspired develops a website or other form of software deliverable for the Client, Inspired shall provide the Client with an opportunity to test that Service Deliverable same an operating environment that is reasonably determined by Inspired to be appropriate for testing purposes and the following additional provisions shall apply:

8.11.1. The Client shall carry out and complete acceptance testing and in accordance with any testing plan stipulated by Inspired and, within 10 Working Days of receipt of the testing plan, shall advise Inspired of the results of acceptance testing in writing.

8.12. Unless otherwise agreed in writing by the parties, after acceptance of any Service Deliverable developed by Inspired for the Client and following payment of all sums due by the Client, Inspired agrees to assign in writing any new and original copyright in the Service Deliverable to the Client with the exclusion of any retained copyright or third-party copyright incorporated therein.

8.13. Unless expressly provided for to the contrary in writing, any warranty, maintenance and support services to be provided to or for the Client by Inspired shall exclude the repair of any fault, error or malfunction arising from:

8.13.1. the Client’s breach of any of the provisions of the Agreement;

8.13.2. any Force Majeure event;

8.13.3. misuse or incorrect handling or operation of any software or Service Deliverable by the Client, its servants, agents and/or sub-contractors;

8.13.4. electrical power failures and fluctuations in power or humidity control;

8.13.5. use of any software or Service Deliverable other than in the ordinary course of the Client’s activities;

8.13.6. relocation of any hardware on which the Service Deliverable has been installed without the written agreement of Inspired;

8.13.7. operator error on the part of the Client or any person permitted by it to access or use any Service Deliverable;

8.13.8. the acts or omissions of any person not being a duly authorised employee, sub-contractor or agent of Inspired or any third party not authorised by Inspired to act in terms of this Agreement;

8.13.9. faults arising in any hardware or software supplied to or obtained by the Client from any person or entity other than Inspired;

8.13.10. the actions, omissions or service interruptions of any utilities provider or third-party service provider, including a telecommunications service;

8.13.11. the Client’s incorporation or attachment of any program, plug-in or device to any software or Service Deliverable;

8.13.12. changes to any Service Deliverable made by the Client or any person not authorised to do so in writing by Inspired;

8.13.13. failure to provide a suitable operating environment for any Service Deliverable or accessing or using any Service Deliverable other than on the specified or recommended operating environment for same;

8.13.14. the unauthorised use of any username, profile or password;

8.13.15. faults arising in any products or materials not directly or indirectly supplied by Inspired;

8.13.16. any failure by the Client to backup data used in, produced by or otherwise associated any Service Deliverable;

8.13.17. use of any Service Deliverable for any other purpose other than that for which it was designed; or

8.13.18. any other exclusions expressly outlined elsewhere in this Agreement, in any Agreement or as otherwise agreed to by the parties in writing.

8.14. Repair of any faults arising as a result of any of the circumstances provided for in of any of the sub-paragraphs to paragraph 8.13.18 may be undertaken by Inspired at its discretion and may be subject to additional time and material charges in accordance with Inspired’s prevailing standard rates.

9. FEES

9.1. Fees shall be payable to Inspired on the specific basis set forth in the Pricing Schedule annexed hereto as “Annexure A”.

9.2. All invoices supplied by Inspired shall describe the nature of Services invoiced for, the billing period where applicable and the fee charged to the Client.

9.3. All invoices shall be payable by the Client on presentation thereof unless otherwise agreed to by the parties in writing and all payments shall be made without any deduction, set off or exchange.

9.4. In the event that the Client wishes to dispute all or any portion of an invoice supplied by Inspired, then, and in that event, and subject to the provisions of clause 9.5, the Client shall promptly notify Inspired in writing of its full reasons for doing so. Notwithstanding the provisions of section 16, upon notification of a dispute the parties shall attempt to resolve such dispute in good faith and the Client shall continue to make payment to Inspired of all undisputed invoices or undisputed components of any invoices.

9.5. In the case of partial or total non-payment by the Client of any charges due to Inspired under this Agreement, including in respect of any disputed invoice or disputed component thereof which is later resolved in favour of Inspired, the Client shall be liable to make payment of interest on the amount payable at the rate of 2% per month calculated on a daily basis from the date such charges first become due and compounded monthly in arrears until receipt of full payment by Inspired.

9.6. If and where applicable, the Client shall pay all taxes of whatsoever nature that may be levied or charged against the Services supplied in terms of this Agreement or otherwise arising out of the ordinary fulfilment of any of the terms and conditions of this Agreement as well as any materials or travel expenses reasonably incurred by Inspired in execution of the Services provided that such expenses shall be approved of by the Client in writing and shall exclude any travel undertaken by any member of Inspired’s personnel between their ordinary place of residence and their ordinary place of work. Unless expressly indicated to the contrary, all fees and charges outlined in any Agreement shall be indicated exclusive of VAT.

9.7. Where the Client procures Third Party Services from Inspired as its agent or applies for terms of credit from Inspired, Inspired shall be authorised at any time during the currency of this Agreement to carry out credit reference checks in respect of the Client, to obtain credit related information and reports from any recognised credit bureau, to request or introduce a deposit amount to be paid by the Client and to revise at any time the payment terms offered to and the payment schedules to be adhered to by the Client.

9.8. Retainer fees shall be due and payable irrespective of whether the Client makes full use of Inspired’s retained resources or services. Inspired may, in its sole discretion, agree to apply a temporary service credit to the Client’s account for unutilised retained services that have been paid for by the Client provided that any such service credit shall not exceed 50% of the value of the unutilised services and provided further that any such service credit shall expire within the month following the month to which the credit relates and shall not be rolled over into any further month or used as a basis for calculating any further service credits.

10. EQUIPMENT (INCLUDING DIGITAL TECHNOLOGIES)

10.1. All risk in and to any goods or equipment supplied by Inspired to the Client shall pass to the Client on delivery thereof.

10.2. The delivery and installation of any equipment may be subject to a reasonable delivery and installation fee.

10.3. Unless a separate written purchase order agreement is entered into between Inspired and the Client providing otherwise, all goods and equipment intended to be sold to the Client shall remain the sole and exclusive property of Inspired until paid for in full.

10.4. Where any goods or equipment loaned or leased to the Client by Inspired is located in premises not owned by the Client, the Client shall ensure that all necessary permissions have been obtained from the owner or landlord of such premises prior to delivery or installation thereof at the premises and shall furthermore take all such steps as may be required to ensure that the goods or equipment are at all times excluded from any lien, pledge or hypothec over goods or equipment located at the premises and the Client agrees to indemnify and hold Inspired harmless against any and all damages and expenses it may suffer as a result of the Client’s failure to comply with the provisions of this clause including, but not limited to, special, incidental and consequential damages and loss of profits.

11. LIABILITY

11.1. The Client acknowledges and agrees that it is in a position to identify and evaluate the potential impact, benefits and risks associated with or arising out of Services including insofar as they relate to its activities and stakeholders.

11.2. Save for where the Client has expressly requested and authorised Inspired in writing to procure and arrange, at the Client’s own approved expense, professional indemnity or project insurance to cover and insure against any claims that may be made against Inspired by the Client in respect of the Services and save for where the Client has made payment in full of the costs of any such insurance prior to the commencement of the Services, Inspired shall not be liable to the Client in respect of any claim for any damages or loss including special, exemplary, indirect, incidental, consequential, punitive or tort damages arising out of, or in connection with this Agreement or the Services.

11.3. Under no circumstances and in no event shall Inspired be liable to the Client, nor any third-party to whom the Client may cede any of its rights where authorised to do so in terms of this Agreement, in respect of any claim made against Inspired or arising out of the Services or any act or omission of Inspired.

11.4. Inspired shall have no liability to the Client or any other person arising from any act or omission of a Third-Party Service provider. Inspired’s sole and exclusive responsibility in relation to Third Party Services shall be act with reasonable diligence and care in selecting Third Party Service providers and in responsibly managing the Client’s account with any such Third Party where applicable.

11.5. Save as expressly contemplated and provided for herein, under no circumstances shall Inspired be liable to the Client for any other claims including any claims for consequential or indirect damages or loss, including loss of business or loss of profits.

12. NON-SOLICITATION

12.1. The Client shall not during the currency of this Agreement, nor within a period of twelve months following its termination, without the prior written consent of Inspired, hire or engage, nor offer to hire or engage, directly or indirectly, whether as an employee, consultant, independent contractor or in any other capacity, any person who was at any time during the period of this Agreement an employee or contractor of Inspired engaged directly or indirectly in the provision of the Services to the Client.  Where the Client breaches this clause, or where a related person to the Client within the meaning of section 2 of the Companies Act takes any action that would constitute a breach if taken by the Client, the Client shall be liable to make payment of an amount to Inspired that is equal to the gross remuneration that the relevant employee or contractor would have received if he or she had been employed on a full time basis for three months by Inspired at his or her last remuneration level.

13. CONFIDENTIALITY & DATA PROTECTION

13.1. Each party (the “Restricted Party”) shall, and shall ensure that every other member of its personnel shall keep confidential and shall not use for its own purposes, nor disclose, any information of a confidential nature about the other party or its business (including but not limited to Client information, trade secrets and information of commercial value) which becomes known to the Restricted Party unless such information is already in the public domain otherwise than by reason of a breach by the Restricted Party of its obligations under this clause 13. Disclosure is, however, permitted to the extent that any such disclosure is:

13.1.1. required by law;

13.1.2. requested by the Restricted Party’s professional advisers or a regulatory body to whose jurisdiction or rules the Restricted Party is subject or in relation to a prospective investment by or in the Restricted Party;

13.1.3. to the Restricted Party’s employees, agents or professional advisers where it is reasonably necessary or desirable to enable the Restricted Party to comply with this Agreement provided that before the disclosure takes place the Restricted Party makes such employees, agents or professional advisers aware of its obligations of confidentiality under this Agreement and at all times procures compliance by such employees and agents therewith; or

13.1.4. made with the prior written consent of the other party.

13.1.5. The Parties agree not to disclose to any unauthorised person any Personal Data of a data subject that is processed by either party in terms of this Agreement and to comply in all respects with the provisions of any applicable data protection legislation to which they may be or become subject.

13.1.6. Each party agrees that the provisions of this clause 13 shall survive the termination of this Agreement, however arising.

14. TRANSFER OF RIGHTS & OBLIGATIONS

14.1. The Client shall not cede, assign or transfer any of its rights or obligations in terms of this Agreement nor any Agreement without the prior consent in writing of Inspired.

15. DISPUTE RESOLUTION

15.1. Should any dispute, disagreement or claim arise between the parties concerning this Agreement, the parties shall endeavour to resolve same by negotiation by the respective project managers, in the first instance, and thereafter by a senior executive of each party.

15.2. The parties hereby consent to the non-exclusive jurisdiction of the High Court for any and all claims.

15.3. Inspired shall be entitled to the award of legal costs in any litigation arising in terms of this Agreement or any Agreement on the scale of attorney and client.

16. TERMINATION

16.1. Unless expressly provided for to the contrary in an accepted Agreement, where the agreement is for six or twelve months, including but not limited to in relation to the minimum duration of any services contemplated by that Agreement, and save as provided for in terms of any retainer engagement, the Client shall be entitled to terminate the provision of the Services by Inspired at any time, with one calendar month’s notice, provided that Inspired shall be entitled to retain in its sole and absolute discretion any payments or deposits advanced by the Client at any time prior to providing notice of termination.

16.2. Software licences are offered on an automatic monthly or annually renewable basis and may be terminated by mutual agreement by either party giving one month’s notice before the end of the current renewal period. In the event of termination of a software licence, the client will be responsible for settlement of the account for the software and any software services provided, up to the end of the notice period.

16.3. Either Inspired or the Client shall have the right to terminate this Agreement by written notice if any of the following events occurs with respect to the other (the “Defaulting Party”):

16.3.1. the Defaulting Party is in material breach of any of its obligations hereunder and in the case of a remediable breach fails to remedy within 15 Working Days of receipt of a notice requiring that the breach be remedied;

16.3.2. any resolution is passed or order made for the winding-up or administration of the Defaulting Party otherwise than for the purposes of a reconstruction or amalgamation;

16.3.3. a receiver is appointed over any of the assets of the Defaulting Party or any arrangement or composition is made with the creditors of the Defaulting Party; or

16.3.4. the Defaulting Party ceases or threatens to cease to carry on business or suspends payment of all or substantially all of its debts or is unable to pay its debts as they fall due.

16.3.5. Termination of this Agreement pursuant to this section 16 shall be without prejudice to the rights of either party arising in respect of any breach of this Agreement at any time prior to termination.

17. FORCE MAJEURE

17.1. Inspired shall have no liability to the Client in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of Force Majeure, which for the purposes of this Agreement shall mean and include any circumstances beyond the reasonable control of Inspired including, but not limited to, acts of God, fire, flood, acts or regulations of any governmental or supra-national authority, war or national emergency, accident, riots, civil commotion strikes, lock- outs, labour strikes, or breakdown or interruption of power, communication of transportation services.

18. NOTICES

18.1. Save for all communications and reporting otherwise specifically provided for in elsewhere in this Agreement, any notice or other document to be given under this Agreement shall be given in writing and shall:

18.1.1 if delivered by courier service be deemed to have been duly received by the addressee on the date of delivery;

18.1.2. if posted by prepaid registered post be deemed to have been received by the addressee on the 8th day following the date of such posting; or

18.1.3. if sent by electronic mail to a correct address for the addressee, be deemed, until the contrary is proved by the addressee, to have been received within 1 hour of sending where transmitted during the hours of 08h00 – 16h00 of any business day or at noon on the following business day where transmitted outside of such business hours.

18.2. Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by one of the parties from the other, including a communication by way of electronic mail, shall constitute adequate written notice or communication to such party.

19. WAIVER

19.1. Failure or delay by either party to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or of any other right hereunder.

20. WARRANTIES

20.1. Each of Inspired and the Client warrants that it is legally entitled to enter into this Agreement; that the performance of its obligations under this Agreement will not in any way constitute an infringement of any other person’s rights including the intellectual property rights of any third party; that the persons signing or accepting this Agreement on behalf of it are duly authorised to do so; and furthermore that its entry into and performance of this Agreement does not and will not violate any agreement to which it is a party or is binding on it.

20.2. Each party's undertakings set out in this Agreement shall be the full extent of its obligation to the other party concerning its performance or non-performance under this Agreement. Accordingly, except as aforesaid, all warranties, conditions or representations, expressed, implied, statutory or otherwise and whether arising under this Agreement or under any prior agreement or in oral or written statements made by or on behalf of either party in the course of negotiations with the other party or its representatives are hereby excluded, insofar as the same are capable of exclusion by law.

20.3. Save as expressly provided for in this Agreement, no warranty, condition, undertaking, term, or otherwise is given or to be implied as to the suitability of any services supplied or software developed or supplied by Inspired for the Client for any particular purpose including compliance with any legal obligation to which the Client may be subject, or for use under any specific conditions, notwithstanding that any such purpose or conditions may be known or made known to inspired and all such warranties, conditions, undertakings and terms are hereby expressly excluded.

21. VARIATION / AMENDMENTS

21.1.  Save as expressly provided by this Agreement no amendments or variations of this Agreement shall be effective unless agreed to in writing by the duly authorised representatives of Inspired and the Client.

22.NO ASSIGNMENT

22.1. Neither this Agreement nor any part, or interest therein or any rights or obligations hereunder may be ceded, delegated, assigned, or otherwise transferred by any Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.

23. GENERAL PROVISIONS

23.1. This Agreement shall be governed by the laws of the Republic of South Africa.

23.2. In the event of any conflict between or inconsistency in the laws applicable internationally, the law as applied and interpreted in the Republic of South Africa will prevail.

23.3. No extension of time or indulgence granted by either Party to the other shall be deemed in any way to affect, prejudice or derogate from the rights of such Party in any respect under this Agreement, nor shall it in any way be regarded as a waiver of any rights hereunder, or a novation of this Agreement.

23.4. No variation of this Agreement shall affect the terms hereof unless such a variation shall be reduced to writing and signed by each of the Parties.

23.5. The Parties shall respectively cause all resolutions to be passed and undertake to sign all such other documents and do such other things as shall be necessary or requisite to give proper and due effect to the terms of this Agreement, or any other matter arising therefrom, according to its intent and purpose.

23.6. This document contains the entire agreement between the Parties relating to the matters recorded herein and no Party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.

24. COSTS

24.1. Each Party shall bear its own costs in respect of, and incidental to, the negotiation, preparation and drafting of this Agreement.

25. COUNTERPARTS

25.1. This Agreement may be executed in a number of counterparts and by the same Parties in different counterparts, but shall only be deemed to have been concluded when each Party has executed at least one counterpart.

25.2. Each counterpart, when executed, shall be an original, but all counterparts together constitute the same document.

26. SHARPSPRING SOFTWARE TERMS OF SERVICE

26.1. Inspired Marketing is a platinum partner reseller of SharpSpring Software which it uses to process and store information. To view the SharpSpring Terms of Service, please follow this link: https://sharpspring.com/legal/terms-of-service/

Talk to our experts

Book a meeting with one of our friendly team members.