Terms Part 1
1. Definitions
a. The Consultant: Adventek Services
b. The Client: The legal entity for which the work is performed
c. Technology: Concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems
d. Deliverables: All reports, documents, and other products first created by the Consultant for delivery to the Client in the performing of the services under this agreement, excluding any third-party software, related documentation, or other products licensed directly to the Client from a third party, or any modifications, or enhancements to such software, documentation or products.
2. Services
The Consultant will perform the services for the Client as described in the proposal, quote, tender response, letter of engagement and/or statement of work to which this standard terms and conditions are appended. The Consultant’s services may include advice and/or recommendations for the Client’s consideration. Any decision based on this advice or recommendations will be made by and be the responsibility of the Client.
3. Site
The services may be performed at the Client’s premises where appropriate, in which case the Client will provide the necessary facilities at no cost to the Consultant, or at a site or sites provided by the Consultant.
4. Payment
The Consultant’s invoices are payable within 14 days of the invoice date. The Consultant may charge interest at the current prime overdraft rate plus 2%, accruing from the date of the invoice, for invoices that are not paid within 1 month of the invoice date. The Consultant may suspend or terminate its services, without prejudice, if any invoice remains unpaid after 1 month of the invoice date.
5. Termination
Except for the clauses that will survive this agreement, the agreement will terminate when the consultant has completed its services. The agreement may also be terminated earlier, without cause, upon 30 days notice from either party. Should any party ("the defaulting party") commit a material breach of any of the provisions of this agreement, then the other party ("the aggrieved party") shall be obliged to give the defaulting party at least 14 days written notice to remedy the breach, or to propose an acceptable plan to remedy the breach. If the defaulting party fails to comply with such notice, the aggrieved party shall be entitled, without affecting any other right, which it may have in law, to terminate this agreement upon 14 days notice.
Terms Part 3
11. Non-Exclusivity
This agreement shall not preclude or limit in any way the right of the Consultant to provide consulting or other services of any kind or nature whatsoever to any individual or entity as the Consultant in its sole discretion deems appropriate, or developing for itself or for others, materials that are competitive with those produced as a result of the services provided hereunder, irrespective of their similarity to the deliverables.
12. Force Majeure
Except for the payment of money, neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, act of God, strike or labour dispute, war or other violence, or any law, order or requirement of any governmental agency or authority.
13. Independent Contractor
Each party is an independent contractor, and neither party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, owner, or representative of the other.
14. Limitation of Employment
Neither party shall appoint, employ or in any way whatsoever obtain the services of the other party’s personnel, unless specifically so agreed to in writing, except that this clause shall not prohibit either party from: Soliciting the employment of personnel of the other party after such personnel have separated or have been separated from the service of such party providing that the hiring party did not solicit such separation; or solicit or recruit generally in the media. This clause will remain in force for six months after the termination of this agreement.
15. Assignment
Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder (including, without limitation, interests or claims relating to this engagement) without the prior written consent of the other party. The Consultant may, upon notice to Client, subcontract or delegate its obligations and responsibilities hereunder; provided, however, that the Consultant will not be relieved of its obligations hereunder. Notwithstanding the foregoing, either party may assign this agreement, without the consent of the other party, to an entity that has acquired all or substantially all of the assigning party’s assets as a successor to the business.
Terms Part 2
6. Confidentiality
During the course of this engagement, each party may come into possession of confidential or proprietary information of the other party (“confidential information”). Each party agrees to use the confidential information of the other party solely for the purposes of this engagement, and will not disclose such confidential information to any third party without the other party’s consent. Each party shall maintain the confidential information of the other party in confidence with at least a reasonable degree of care. Confidential information shall not include information which (i) shall have otherwise become publicly available, (ii) was disclosed to the receiving party on a non-confidential basis from a source other than the disclosing party, (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party, (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or any other administrative or legal process, or by applicable regulatory or professional standards, or (v) is disclosed with the written consent of the disclosing party.
7. Ownership and Licensing
The Consultant hereby assigns to the Client ownership of the deliverables (except for any of the consultant’s technology contained therein), and grants to the Client, a non-exclusive, royalty-free, worldwide, perpetual, non-transferrable license to use, for Client’s internal business purposes, any of the Consultant’s technology contained in the deliverables. The rights granted to Client in this paragraph are contingent upon the Client’s full and final payment to the Consultant of all invoices relating to this agreement. To the extent that the Consultant uses any of its technology, intellectual, or other property in connection with the performance of its services, the Consultant shall retain all right, title and interest in and to such property, and, except for the license expressly granted in this section, Client shall acquire no right, title or interest in or to such property.
8. Limitation on Warranties
This is a services engagement. The Consultant warrants that it will perform the services under this agreement in good faith and in a professional manner. The Consultant disclaims all other warranties, either express or implied, including, without limitation, warranties of merchantability and fitness for a particular purpose. Client’s exclusive remedy for any breach of this warranty shall be for the Consultant, upon receipt of written notice, to use diligent efforts to rectify such breach, or, failing any such rectification in a reasonable period of time, the return of the professional fees, received by the Consultant, directly relating to the services giving rise to such breach.
9. Limitation on Damages
Each party agrees that the other party, its subsidiaries, holding companies, affiliates, agents and subcontractors, and each of their partners, principals or other personnel shall not be liable for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to the services performed hereunder for an aggregate amount in excess of the fees paid by the Client to the Consultant under this engagement. In no event shall either party, its subsidiaries, holding companies, affiliates, agents or subcontractors, or any of their partners, principals or other personnel be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits and opportunity costs) nor shall they be liable for any claim or demand against the other party by any third party. The provisions of this paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, common law, tort (including, without limitation, negligence), or otherwise. No action, regardless of form, arising under or relating to this engagement, may be brought by either party more than six months after the cause of action has occurred, except that an action for non-payment of any invoice may be brought by a party not later than three years following the date of the last payment due to such party on any invoice hereunder.
10. Cooperation
The Client shall cooperate with the Consultant in the performance of the services under this agreement, including, without limitation, providing the Consultant with reasonable facilities and timely access to data, information, and personnel of the Client. The Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to the Consultant hereunder. The Client acknowledges and agrees that the Consultant’s performance is dependent upon the timely and effective satisfaction of the Client’s responsibilities hereunder, including, without limitation, timeous decisions and approvals of the Client in connection with the services. The Consultant shall be entitled to rely on all decisions and approvals of Client, as well as all data and information provided by the Client.
Terms Part 4
16. Waiver
No failure by a party to enforce any provision of this agreement shall constitute a waiver of such provision or affect in any way a party’s right to require performance of any such provision at any time in the future, nor shall the waiver of any subsequent breach nullify the effectiveness of the provision itself.
17. Entire Agreement
These terms, the engagement letter, proposal and/or statement of work to which these terms are attached, constitute the entire agreement between the Consultant and Client with respect to this engagement and supersede all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by a written agreement signed by both parties.
18. Governing Law
This agreement and all matters relating to this engagement (whether in contract, statute, tort (including, without limitation, negligence) or otherwise), shall be governed by, and construed in accordance with, the laws of the Republic of South Africa.
19. Severability
If any provision of this agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this agreement.
20. Survival
All sections herein relating to payment, license and ownership, confidentiality, warranties, limitations of warranties, limitations on damages, non-exclusivity, limitation of employment, and waiver shall survive the termination of this agreement.
21. Domicilia and Notices
The parties choose domicilia citandi et executandi ("domicilium address") for all purposes arising from or pursuant to this agreement, as the addresses set forth in the engagement letter, proposal and/or statement of work to which these terms are attached. Either party shall be entitled from time to time, by written notice to the other(s), to vary its domicilium address to any other address within the Republic of South Africa which is not a post office box or poste restante. All notices given in terms of this agreement shall be in writing and any notice given by either party to the other ("the addressee") which are delivered by hand or transmitted by tele-facsimile shall be deemed to have been received by the addressee on acknowledgement of receipt by signature, return tele-facsimile or by e-mail, as the case may be; and all notices which are posted by pre-paid registered post from an address within the Republic of South Africa to the addressee at its domicilium address for the time being shall be deemed to have been received by the addressee on proof of signature of the addressee or a duly authorised representative.
22. Equipment
• The hirer accepts full responsibility for any theft, loss or damage to the equipment for the duration of the rental period.
• Unless an order is cancelled within 48 hours prior to the ship time, a 50% cancellation fee will be charged.
• A quote will not be confirmed until we have received the signed quote and Terms and Conditions
• Equipment hired must be returned on time, in order to avoid additional charges.
• Should the equipment not be used or returned prior to the return date, no refunds shall be given.
• Any equipment hired, may not be sub-hired.
• It is the client's responsibility to check that all dates, addresses and times are correct on the quote.
• Adventek cannot be held responsible for adverse weather conditions (i.e. rain), or power problems, should the client insist on the equipment still being used, they are fully responsible for damage costs.
• Adventek will not be held responsible for the correct and / or reliable operation for equipment supplied by the client or the venue.