Terms and Conditions

  1. GENERAL

All services supplied by Onyx Digital (Pty) Ltd, registration number 2013/202724/07 (“Onyx Digital”) shall be made and supplied on the following terms and conditions. Similarly, the use of Onyx Digital’s Website will be governed by these terms and conditions. These terms and conditions shall take precedence over any other terms and conditions, which may be contained in the Client’s acceptance of order, or other client documentation, and may only be altered with the express written agreement of Onyx Digital. Any conflicting statements in any acceptance of order or other documentation issued by the Client shall be null and void, unless such special terms have been expressly agreed to in writing by Onyx Digital.

  1. INTERPRETATION

In this agreement unless the context indicates a contrary intention –

2.1 clause headings are for convenience only and shall not be used in its interpretation;

2.2 an expression which denotes any gender includes the other genders and a natural person includes an artificial person and vice versa;

2.3 the singular includes the plural and vice versa.

2.4 Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:

2.4.1 “Client” the Party accessing the Website and/or receiving or to receive services from Onyx Digital;

2.4.2 “Onyx Digital Associates” Onyx Digital’s officers, servants, agents or contractors or other persons in respect of whose actions Onyx Digital may be held to be vicariously liable;

2.4.3 “Parties” Onyx Digital and the Client;

2.4.4 “Scope of Work” any cost estimate, quotation, document, proposal or correspondence from Onyx Digital to the Client describing the Services proposed or actually rendered by Onyx Digital to the Client;

2.4.5 “Services” integrated communications, social media and digital public relations, as proposed and/or rendered by Onyx Digital to the Client,

2.4.6 “Website” means http://www.onyxdigital.com

2.5 Where any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.

2.6 1.5. Unless inconsistent with the context or save where the contrary is expressly indicated:

2.6.1 if any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of this Agreement; ?

2.6.2 a reference to “days” shall be construed as calendar days unless qualified by the word “business”, in which instance a “Business Day” shall be any day other than a Saturday, Sunday or official public holiday in the Republic. Any reference to time shall be based upon South African Standard Time;

2.6.3 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 day which is not a Business Day, in which case the last day shall be the next succeeding Business Day;

2.6.4 in the event that the day for payment of any amount due in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for payment shall be the subsequent Business Day;

2.6.5 in the event that the day for performance of any obligation to be performed in terms of this Agreement should fall on a day which is not a Business Day, the relevant day for performance shall be the subsequent Business Day;

2.6.6 any reference in this Agreement to this Agreement or to any other agreement or document shall be construed as a reference to this Agreement or (as the case may be) such other agreement or document, as the same may have been, or may from time to time be, amended, varied, novated or supplemented;

2.6.7 no provision of this Agreement constitutes a stipulation for the benefit of any person who is not a party to this Agreement;

2.6.8 a reference to a Party includes that Party’s Permitted Successors.

2.7 The rule of construction that the contract shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply.

2.8 Where in this Agreement 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.

2.9 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.

2.10 The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

2.11 The appendices and schedules to this Agreement form an integral part hereof and words and expressions defined in this Agreement shall bear, unless the context otherwise requires, the same meaning in such appendices and schedules.

  1. INTRODUCTION

3.1 This Agreement governs all and any access to the Website, and any Services provided by Onyx Digital. The operation of these terms and conditions may only be amended by Onyx Digital in a subsequent agreement entered into and signed by both Parties.

3.2 By accepting and/or receiving the Services and/or using the Website, the Client agrees to be bound by this Agreement.

  1. APPOINTMENT AND DURATION

4.1 This Agreement commences once there has been access to the Website or engagement between Onyx Digital and the Client and governs the Services, use of the Website and matters ancillary to the Services and Website usage.

4.2 Clauses 7, 8, 9 and 11 as well as such other clauses which are intended to survive termination as set out below, shall survive termination of this Agreement for any reason.

  1. THE SERVICES

5.1 Onyx Digital offers integrated communications, social media, digital public relations and software development services.

5.2 Onyx Digital shall render such Services as agreed between the Parties in a Scope of Work.

5.3 The Parties expressly record that each instance of the Services constitutes a separate and distinct service, and nothing set out in this Agreement shall be construed as obliging Onyx Digital to render all such Services as a single, indivisible service.

5.4 Client website development and related Services

5.4.1 In the event that the Client requires Onyx Digital to provide services that require the use of Drupal and WordPress, the Client acknowledges that the Drupal and WordPress content management systems are licensed under the GNU General Public License, version 2 and/or version 3, or such later versions as applicable, respectively, and confirms that it has reviewed and is familiar with the terms of these licenses, the Client recognises that Onyx Digital may not be legally empowered to assign the intellectual property rights in and to the code to the Client.

5.4.2 In the event that the Client requires development services, Onyx Digital shall grant the Client a license for the bespoke development and/or other programming code (“Code”) which Onyx Digital develops for the Client in terms of and for the purposes of this Agreement on such terms as will enable the Client to enjoy the same or similar rights Onyx Digital has in and to the Code, subject to any limitations imposed on Onyx Digital in respect of the Code.

5.4.3 The Client shall be entitled to request a complete and current copy of the Code from Onyx Digital in such formats as the Client may reasonably require, once the Client has made payment in full for the Code. The preparation and delivery of copies of the Code to the Client shall be at the Client’s expense.

5.4.4 In the event the Client wishes to take advantage of Code Onyx Digital does not ordinarily support or provide, in the event that Onyx Digital agrees (in its sole discretion) to provide such additional services, such agreement shall be recorded in an addendum to this Agreement and signed by the Parties.

5.5 Social Media Services

5.5.1 The provision of the social media Services may incorporate the use of third party websites and/or services such as facebook and twitter.

5.5.2 In this regard the Client acknowledges that Onyx Digital does not render legal and contract advisory services and that the Client shall remain solely responsible for familiarising itself with and complying, as well as ensuring compliance, with the terms and conditions governing the use of those third party websites and/or services.

5.6 As at the commencement of this Agreement, certain software forming the platform or a component of the Services may be owned by and/or provided to Onyx Digital by third party service providers (the “Service Provider/s”);

5.7 Onyx Digital shall be entitled at any time and from time to time to change the identity of any such Service Providers.

5.8 The Client acknowledges that the Service Providers’ terms and conditions of service shall govern the use of such platform or component as between Onyx Digital and such Service Provider. The Parties further record and agree that Onyx Digital shall, at any time during the term of this Agreement, be entitled to appoint and/or terminate the services of such Service Providers provided that such appointment and/or termination of Service Providers shall not be materially detrimental to Onyx Digital’s performance of its obligations and/or compromise the service levels agreed to in terms of this Agreement.

  1. SERVICE LEVELS

Onyx Digital hereby undertakes to ensure that the standard of the Services it shall render to the Client in terms of this Agreement shall be in accordance with relevant industry standards.

  1. FEES

7.1 The Client shall, as consideration for the Services to be rendered by Onyx Digital in terms of this Agreement, effect payment to Onyx Digital of fees at the rates set out in the Scope of Work and/or invoice.

7.2 Onyx Digital shall invoice the Client, in advance, for all Services to be performed by Onyx Digital as set out in the cost estimate, quotation and/or Scope of Work.

7.3 The Client shall pay the fees, to Onyx Digital, in the amounts and on the terms stated in Onyx Digital’s interim and final invoices issued to the Client from time to time. In the event that Onyx Digital’s invoices do not state Onyx Digital’s payment terms, invoices are payable within 30 days of the relevant invoice’s date.

7.4 Unless otherwise agreed in writing, the fees shall escalate at the rate of 11% per annum on the 1st of February of every year.

7.5 In the event of the Client failing to timeously effect payment of any amount due to Onyx Digital in terms of this Agreement, Onyx Digital shall, be entitled to suspend the provision of the Services in terms of this Agreement for any period in which any payment remains outstanding and charge interest thereon at a rate of 5% per month.

7.6 Onyx Digital reserves the right to charge a reasonable cancellation fee should the Client unilaterally terminate the Services or this Agreement in a manner and/or for a reason not expressly provided for in this Agreement.

7.7 The Client agrees that it shall pay all Onyx Digital’s expenses in recovering any amounts the Client owes Onyx Digital, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.

  1. CONFIDENTIALITY

8.1 Subject to clause 8.2, both Parties shall at all times treat all information in connection with and/or relating to the other Party, its business and all matters incidental thereto and which was if in writing, marked ‘confidential’ or similarly; and/or if disclosed orally, was confirmed at the time of such disclosure as constituting confidential information and was confirmed in writing within 14 days as constituting confidential information, (“the Confidential Information”), as strictly confidential and shall not, without the prior written consent of the other Party (which consent may, for the avoidance of doubt, be withheld in the unfettered discretion of such other Party) disclose such Confidential Information to any Party, and/or make use of such Confidential Information for any purposes other than in connection with the rendering of the Services.

8.2 Each 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. Each 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 third party (other than those persons to whom it has already been disclosed in accordance with the terms of this Agreement), on the basis that the disclosing Party is responsible for any disclosure, in breach of this 8.2, by the person to whom it is disclosed.

8.3 Notwithstanding the stipulations of clause 8.1, Confidential Information shall not include, and the provisions of clause 8.1 shall not apply to a Party in connection with, any information which:

8.3.1 is or becomes generally available to the public other than as a result of disclosure by such Party in violation of this clause 8;

8.3.2 is or was independently developed by such Party or on its behalf by persons having no access to such information;

8.3.3 was in such Party’s possession before such information was disclosed to it in terms of and/or pursuant to this Agreement;

8.3.4 is required to be given, made or published by law or under the rules and regulations of any relevant Stock Exchange or any applicable regulatory authority, in which case, the Party liable to so give, make or publish same shall give the other Party reasonable written notice thereof, along with drafts or copies thereof, as soon as is reasonably practicable, and, in the case of any disclosure required in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000) (as amended) (“the PAI Act”), the Party liable to make such disclosure shall, insofar as it shall be able, apply the principles of Chapter 4 of the PAI Act in order to avoid and/or limit the extent of any such disclosure; and

8.3.5 is required to be disclosed by either Party to any provider of finance (“the Bank”) in order for the Bank to take informed decisions regarding that Party, provided that such Party shall use its reasonable endeavours to procure that the Bank shall keep such information confidential.

  1. PROTECTION OF PERSONAL INFORMATION

9.1. Onyx Digital shall:

9.1.1. only Process Personal Information in accordance with applicable laws, in terms of this Agreement and in accordance with any instructions, requirements or specific directions of the Information Officer;

9.1.2. Onyx Digital shall ensure that all its systems and operations which it uses to provide the Services, including all systems on which personal information is copied, compiled, collated, processed, transmitted, stored, collected, mined, altered or deleted or otherwise used as part of providing the services, shall at all times be of a minimum standard required by law and be of a standard no less than the standards which are in compliance with the legislation relating to protection, control and use of personal information;

9.1.3. not disclose or otherwise make available the Personal Information to any third party (including sub-contractors and Staff) other than authorised Staff who require access to such Personal Information strictly in order for Onyx Digital to carry out its obligations, unless approved by the Client in writing;

9.1.4. ensure that all Staff and any other persons that have access to the Personal Information are bound by appropriate and legally binding confidentiality and non-use obligations in relation to the Personal Information;

9.1.5. take appropriate, reasonable, technical and organisational measures to ensure that the integrity of the Personal Information in its possession or under its control and that such Personal Information is secure and protected against unauthorised or unlawful processing, accidental loss, destruction or damage, alteration, disclosure or access by having regard to:

9.1.6. any applicable requirement in law, stipulated in appropriate industry rules or in codes of conduct or stipulated by a professional body governing Onyx Digital;

9.1.7. generally accepted information security practices and procedures which apply to Onyx Digital’s business and to the Client, as may be appropriate to discharge its obligations in terms of this Agreement;

9.1.8. take appropriate, reasonable, technical and organisational measures to ensure that the Personal Information in its possession or under its control remains available to the Client as and when it may be required; and

9.1.9. identify all reasonably foreseeable internal and external risks on an on-going basis and in accordance with the requirements for same as may be set forth in the Security Standards

9.2. assist the Client to comply with any requests for access to Personal Information received by the Client from Data Subjects and, at the request of the Client, Onyx Digital shall promptly provide the Client with a copy of any Personal Information held by Onyx Digital in relation to a specified Data Subject. Onyx Digital agrees that notwithstanding the confidentiality provisions of this Agreement, the Client may disclose to a Data Subject that Onyx Digital has been or is involved in Processing such Data Subject’s Personal Information;

9.3. Onyx Digital shall only Process the Personal Information of Data Subjects provided to it by the Client in compliance with the provisions of this Agreement and in accordance with written instructions provided by the Information Officer to Onyx Digital.

9.4. Onyx Digital shall not conduct any further Processing activities for any other reason whatsoever (including any related processing functions or processing which would otherwise be a normal extension of the Processing which Onyx Digital is entitled to undertake in accordance with the Client’s instructions) without the express prior written consent of the Information Officer, save that Onyx Digital may carry out reasonable further Processing strictly in order to comply with an obligation which is imposed on it by law.

  1. PROHIBITION ON SOLICITATION OR INTERFERENCE

10.1 Neither Party shall solicit, offer work to, or contract with, whether as a partner, employee or independent contractor, directly or indirectly, any of the other Party’s personnel who are directly involved in the provision of the Services, during the provision of the Services or during the 12 (twelve) months thereafter.

10.2 Neither Party shall knowingly, for the duration of this Agreement and for a period of 1 year after this Agreement terminates for any reason, furnish any information or advice to anyone else which results in any staff member or any representative, agent or Client of the other Party who was involved in the implementation or execution of this Agreement 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.

10.3 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.

  1. LIABILITY

Disclaimers and Limitation of Liability

11.1 To the fullest extent permissible by law, Onyx Digital 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.

11.2 The Client agrees that Onyx Digital is unable to, and is not required to guarantee a particular result or set of results.

11.3 The Client agrees that neither Onyx Digital nor Onyx Digital’s Associates shall be liable in respect of any loss, damage or damages however arising and whatever the cause, in particular pursuant to and in furtherance of this Agreement.

11.4 Onyx Digital’s liability to the Client pursuant to the provisions of this agreement shall furthermore be limited to the total amount of the fees charged and paid by the Client in the year in which the liability arose.

  1. INDEMNITY

12.1 The Client hereby indemnifies Onyx Digital and Onyx Digital’s Associates from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, wilful misconduct and/or gross negligence.

12.2 The Client indemnifies and shall keep the Onyx Digital indemnified against any claim for infringement of intellectual property rights in connection with any information supplied by the Client to Onyx Digital and against any and all costs, expenses and damages which Onyx Digital may incur or become liable for as a result of such infringement.

12.3 Onyx Digital shall give the Client prompt notice in writing of any claim being made or action threatened or brought against Onyx Digital and will permit the Client, at the Client’s own expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.

  1. FORCE MAJEURE

13.1 If either Party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this Agreement by reason of strike, lock-out, fire, explosion, floods, riot, war, accident, act of God, 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 that Party, the Party so affected shall be relieved of its obligations hereunder during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damages either general, special or consequential which the other Party may suffer due to or resulting from such delay or failure, provided always that written notice shall forthwith be given of any such inability to perform by the affected Party.

13.2 Any Party invoking force majeure shall, upon termination of such event giving rise thereto, forthwith give written notice thereof to the other Party. Should such force majeure continue for a period of more than 90 days then the Party who shall not have invoked the force majeure shall be entitled forthwith to cancel this Agreement in respect of any obligations still to be performed hereunder.

  1. ASSIGNMENT

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 this Agreement except with the prior written consent of the other Parties.

  1. THE WEB SITE

15.1 Usage

15.1.1 The Onyx Digital Website is the registered property of Onyx Digital.

15.1.2 Any persons accessing and/or using the Onyx Digital Website for any reason whatsoever subjects themselves to and agrees to the terms and conditions and privacy policy of Onyx Digital when accessing the Website as set out below.

15.1.3 Onyx Digital expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in the Website without prior notice.

15.1.4 Nothing on the Website shall be construed as an offer by Onyx Digital to you, the user, but merely an invitation to do business.

15.1.5 You may send content and other communications to and/or via this Website provided that the content is not illegal, obscene, objectionable, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a communication. Onyx Digital reserves the right to remove or edit such content in its sole discretion.

15.1.6 You hereby represent and warrant that you own or otherwise control all of the rights to the content that you post on this Website; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you indemnify Onyx Digital or its affiliates from all and any claims resulting from content you supply to Onyx Digital. Onyx Digital shall not be held responsible or liable for any content posted on the Onyx Digital Websites.

15.2 Intellectual Property

15.2.1 Copyright All content on the Website (unless explicitly stated), including but not limited to, text, graphics, logos, button icons, images, clips, digital downloads, data compilations, and software, is the property of Onyx Digital or licensed to Onyx Digital and as such, is protected from infringement by domestic and international laws, legislation and treaties. Onyx Digital expressly reserves all rights pertaining to such content.

15.2.2 Copyright Complaints Onyx Digital and its Affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, an infringement of any intellectual property right, please notify us by e-mail or post at the address below.

15.2.3 Trademarks and Other Intellectual Property All content, trademarks and data on this web site, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or are licensed to Onyx Digital, and as such are protected from infringement by domestic and international laws, legislation and treaties.

15.2.4 “Onyx Digital” and other marks indicated on the Onyx Digital Websites are the trademarks or trade dress of Onyx Digital. These and other Onyx Digital graphics, logos, page headers, button icons, scripts, product and service names are trademarks or trade dress of Onyx Digital.

15.2.5 Onyx Digital trademarks and trade dress may not be used in connection with any product or service without the written consent of Onyx Digital.

15.2.6 Onyx Digital trademarks and trade dress may not be used in any manner that is likely to cause confusion amongst its Clients, or in any manner that disparages, prejudices or discredits Onyx Digital.

15.2.7 All other trademarks not owned by Onyx Digital that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Onyx Digital.

15.3 Licenses and Web Site Access

15.3.1 Onyx Digital hereby grants you a limited license to access and make personal use of the web site provided that in making use of the Website you do not download any content, other than for page caching purposes, except where the facility to download is expressly provided or express written consent to do so is otherwise given by Onyx Digital. You are expressly prohibited from modifying any portion of this Website, whether in part or whole, except with the express written consent of Onyx Digital.

15.3.2 This license does not include any right of resale or commercial use of this web site or its contents. For the purposes of this clause 15, any collection and/or use of any listings and/or descriptions; any derivative use of this Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools for any commercial purpose is expressly prohibited unless stated otherwise.

15.3.3 It is expressly prohibited to frame or utilize framing techniques to enclose and/or mask any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Onyx Digital and/or our affiliates without its express written consent.

15.3.4 It is expressly prohibited to use any meta tags or any other “hidden text” utilizing Onyx Digital’s name or trademarks without the express written consent of Onyx Digital.

15.3.5 Any unauthorized use of this web site, its content or applications terminates the permission or license granted by Onyx Digital. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Onyx Digital provided the link does not portray Onyx Digital, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner.

15.3.6 You may not use any Onyx Digital logo or other proprietary graphic, trademark, or material as part of the link without express written permission from Onyx Digital.

15.4 Disclosures Required by Section 43 Of The South African Electronic Communications and Transactions Act (ECTA)

15.4.1 The full name and legal status of the web site owner is: Onyx Digital (Pty) Ltd a private company registered in South Africa under the Registration Number 2013/202724/07.

15.4.2 CEO: Daniela Bascelli

15.4.3 Physical address for receipt of legal service: Fourways, Gauteng, South-Africa.

15.5 Disclaimer of Warranties and Limitation of Liability

15.5.1 Subject to the provisions of sections 43(5) and 43(6) of the ECTA, Onyx Digital shall not be liable for any damage, loss or liability of whatsoever nature arising from the use or inability to use this web site or the services or content provided from and through this Website. Furthermore, Onyx Digital makes no representations or warranties, implied or otherwise, that, amongst others, the content and technology available from this Website are free from errors or omissions or that the service will be 100% uninterrupted and error free.

  1. BREACH

16.1 Subject to any other provision of this Agreement providing for the remedy of any breach of any provision hereof, should either Party (“the Offending Party”) commit a breach of any provision of this Agreement and fail to remedy such breach within fourteen 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 –

16.1.1 cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or?

16.1.2 claim specific performance of all of the Offending Party’s obligations whether or not due for performance,

16.1.3 in either event without prejudice to the Aggrieved Party’s right to claim damages.

16.2 Either Party shall be entitled to summarily terminate this Agreement 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 this Agreement shall, in the circumstances contemplated in this clause, immediately become due and payable to the prejudiced Party.

  1. GOVERNING LAW

These terms and conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa.

  1. ARBITRATION

Any disputes arising from or in connection with this agreement 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.

  1. SEVERABILITY

If any clause or term of this Agreement shall have been held by a court of competent jurisdiction to be invalid, unenforceable or illegal, then the remaining terms and provisions of this Agreement 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 this Agreement.

  1. DOMICILIUM AND NOTICES

20.1 The parties choose domicilium citandi et executandi (“domicilium”) for the purposes of the giving of any legal notice or the serving of any process, as follows:

20.1.1 Onyx Digital – Fourways, Gauteng, South-Africa.

20.1.2 The Client – Registered head office or the place of business.

20.2 Each of the parties shall be entitled from time to time, by written notice to the other, to vary its domicilium to any other address which is not a post office box or poste restante.

20.3 Any notice given by either party to the other (“the Addressee”) which:

20.3.1 is delivered by hand during the normal business hours of the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee at the time of delivery;

20.3.2 is posted by prepaid registered post to the Addressee at the Addressee’s domicilium for the time being shall be presumed, until the contrary is proved by the Addressee, to have been received by the Addressee on the fourth (4th) day after the date of posting.

20.3.3 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.

  1. GENERAL

21.1 This agreement will constitute the sole agreement between the parties and shall supersede all other agreements and/or representations whether written, oral and/or implied between the parties.

21.2 Neither party shall be bound by any express or implied term, representation, promise or the like not recorded herein. For purposes hereof a “written document” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.

21.3 No addition to, variation, or agreed cancellation of this agreement, including this clause, shall be of any force or effect unless in writing and signed by or on behalf of the parties. For purposes hereof “in writing” shall exclude any written document that is in the form, either wholly or partly, of a data message as defined in the ETCA, and “signed” shall mean a signature executed by hand with a pen and without any electronic process or intervention.

21.4 No indulgence which either party (“the grantor”) may grant to the other (“the grantee”) 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 which may have arisen in the past or which might arise in the future.

21.5 Nothing in this agreement shall constitute a partnership, joint venture, agency or employment between the parties hereto, and neither party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way for any purpose.

  1. ACCEPTANCE BY THE CLIENT OF THESE TERMS AND CONDITIONS SHALL BE DEEMED TO HAVE TAKEN PLACE IN THE EVENT THAT THE CLIENT ENGAGES WITH ONYX DIGITAL FOR THE RECEIPT OF ANY SERVICES OR BY THE USE OF THE WEBSITE. EVERY INSTANCE OF THE SERVICES AND USE OF THE WEBSITE SHALL BE SUBJECT TO THE ABOVE TERMS AND CONDITIONS.

[or [OTHER CONTENT]]

from the website for your own personal use, subject to the restrictions set out below and elsewhere in these terms and conditions.

You must not:

  • republish material from this website (including republication on another website);
  • sell, rent or sub-license material from the website;
  • show any material from the website in public;
  • reproduce, duplicate, copy or otherwise exploit material on this website for a commercial purpose;]
  • [edit or otherwise modify any material on the website; or]
  • [redistribute material from this website [except for content specifically and expressly made available for redistribution].]

[Where content is specifically made available for redistribution, it may only be redistributed [within your organisation].]

Acceptable use

You must not use this website in any way that causes, or may cause, damage to the website or impairment of the availability or accessibility of the website; or in any way which is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

You must not use this website to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or other malicious computer software.

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to this website without Onyx Digital’s express written consent.

[You must not use this website to transmit or send unsolicited commercial communications.]

[You must not use this website for any purposes related to marketing withoutOnyx Digital’s express written consent.]

[Restricted access

[Access to certain areas of this website is restricted.] Onyx Digital reserves the right to restrict access to [other] areas of this website, or indeed this entire website, at Onyx Digital’s discretion.

If Onyx Digital provides you with a user ID and password to enable you to access restricted areas of this website or other content or services, you must ensure that the user ID and password are kept confidential.

[Onyx Digital may disable your user ID and password in Onyx Digital’s sole discretion without notice or explanation.]

User content

In these terms and conditions, “your user content” means material (including without limitation text, images, audio material, video material and audio-visual material) that you submit to this website, for whatever purpose.

You grant to Onyx Digital a worldwide, irrevocable, non-exclusive, royalty-free license to use, reproduce, adapt, publish, translate and distribute your user content in any existing or future media.  You also grant to Onyx Digital the right to sub-license these rights, and the right to bring an action for infringement of these rights.

Your user content must not be illegal or unlawful, must not infringe any third party’s legal rights, and must not be capable of giving rise to legal action whether against you or Onyx Digital or a third party (in each case under any applicable law).

You must not submit any user content to the website that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

Onyx Digital reserves the right to edit or remove any material submitted to this website, or stored on Onyx Digital servers, or hosted or published upon this website.

[Notwithstanding Onyx Digital rights under these terms and conditions in relation to user content,Onyx Digital does not undertake to monitor the submission of such content to, or the publication of such content on, this website.]

No warranties

 This website is provided “as is” without any representations or warranties, express or implied. Onyx Digital makes no representations or warranties in relation to this website or the information and materials provided on this website.

Without prejudice to the generality of the foregoing paragraph, Onyx Digital does not warrant that:

  • this website will be constantly available, or available at all; or
  • the information on this website is complete, true, accurate or non-misleading.

Nothing on this website constitutes, or is meant to constitute, advice of any kind.  [If you require advice in relation to any [legal, financial or medical] matter you should consult an appropriate professional.]

Limitations of liability

Onyx Digital will not be liable to you (whether under the law of contact, the law of torts or otherwise) in relation to the contents of, or use of, or otherwise in connection with, this website:

  • [to the extent that the website is provided free-of-charge, for any direct loss;]
  • for any indirect, special or consequential loss; or
  • for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data.

These limitations of liability apply even if Onyx Digital has been expressly advised of the potential loss.

Exceptions

Nothing in this website disclaimer will exclude or limit any warranty implied by law that it would be unlawful to exclude or limit; and nothing in this website disclaimer will exclude or limit Onyx Digital’s liability in respect of any:

  • death or personal injury caused by Onyx Digital’s negligence;
  • fraud or fraudulent misrepresentation on the part of Onyx Digital; or
  • matter which it would be illegal or unlawful for Onyx Digital to exclude or limit, or to attempt or purport to exclude or limit, its liability.

Reasonableness

By using this website, you agree that the exclusions and limitations of liability set out in this website disclaimer are reasonable.

If you do not think they are reasonable, you must not use this website.

Other parties

[You accept that, as a limited liability entity, Onyx Digital has an interest in limiting the personal liability of its officers and employees.  You agree that you will not bring any claim personally against Onyx Digital’s officers or employees in respect of any losses you suffer in connection with the website.]

[Without prejudice to the foregoing paragraph,] you agree that the limitations of warranties and liability set out in this website disclaimer will protect Onyx Digital officers, employees, agents, subsidiaries, successors, assigns and sub-contractors as well as Onyx Digital.

Unenforceable provisions

If any provision of this website disclaimer is, or is found to be, unenforceable under applicable law, that will not affect the enforceability of the other provisions of this website disclaimer.

Indemnity

You hereby indemnify Onyx Digital and undertake to keep Onyx Digital indemnified against any losses, damages, costs, liabilities and expenses (including without limitation legal expenses and any amounts paid by Onyx Digital to a third party in settlement of a claim or dispute on the advice of Onyx Digital’s legal advisers) incurred or suffered by Onyx Digital arising out of any breach by you of any provision of these terms and conditions[, or arising out of any claim that you have breached any provision of these terms and conditions].

Breaches of these terms and conditions

Without prejudice to Onyx Digital’s other rights under these terms and conditions, if you breach these terms and conditions in any way, Onyx Digital may take such action as Onyx Digital deems appropriate to deal with the breach, including suspending your access to the website, prohibiting you from accessing the website, blocking computers using your IP address from accessing the website, contacting your internet service provider to request that they block your access to the website and/or bringing court proceedings against you.

Variation

Onyx Digital may revise these terms and conditions from time-to-time.  Revised terms and conditions will apply to the use of this website from the date of the publication of the revised terms and conditions on this website.  Please check this page regularly to ensure you are familiar with the current version.

Assignment

Onyx Digital may transfer, sub-contract or otherwise deal with Onyx Digital rights and/or obligations under these terms and conditions without notifying you or obtaining your consent.

You may not transfer, sub-contract or otherwise deal with your rights and/or obligations under these terms and conditions.

Severability

If a provision of these terms and conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.  If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

Entire agreement

These terms and conditions constitute the entire agreement between you and Onyx Digital in relation to your use of this website, and supersede all previous agreements in respect of your use of this website.

Law and jurisdiction

These terms and conditions will be governed by and construed in accordance with The Electronic Communications Transactions Act, and any disputes relating to these terms and conditions will be subject to the [non-]exclusive jurisdiction of the courts of South Africa