DIGITAL KUNGFU TERMS OF SERVICE
1.1 The Client hereby appoints Digital Kungfu to render the Services and to make available,
where relevant, the Products, the resources, skills and expertise with effect from the
Commencement Date and Digital Kungfu accepts such appointment on the terms and
conditions contained in this Agreement.
1.2 STRUCTURE OF THE AGREEMENT
1.3 This Main Agreement is intended to operate as a master or framework agreement applicable
to all Services rendered and all Products provided by Digital Kungfu and recorded in the
relevant Campaign Document. All Campaign Documents shall be governed by this Main
Agreement and the provisions of this Main Agreement shall apply in respect of each
Campaign Document as if fully included within the body of the Campaign Document.
1.4 This Main Agreement shall apply to all Services rendered and Products provided by Digital
Kungfu to the Client or to an Affiliate of the Client, and where applicable, to Services
rendered and Products provided by an Affiliate of Digital Kungfu to the Client or an Affiliate
of the Client, in each instance where the Parties have concluded a Campaign Document.
Where appropriate, all references to “the Client” or “Digital Kungfu” in this Main Agreement
shall be a reference to the Client Affiliate or Digital Kungfu Affiliate, as the case may be,
which has concluded a Campaign Document.
1.5 Each Campaign Document read with this Main Agreement shall become “the Agreement”
between Digital Kungfu or Digital Kungfu Affiliate and the Client or the Client Affiliate, as the
case may be, in respect of the Services as described in that Campaign Documents.
1.6 Where the Parties enter a Campaign Document which has varying terms to any of the terms
of the Agreement, then the varying terms of that Campaign Document shall prevail and shall
be binding, but only with respect to the particular Campaign Document. The varying terms
in the Campaign Document will however not otherwise result in the terms in the Agreement
being amended in general and the equivalent terms in the Agreement shall continue to
apply outside of the aforesaid varying Campaign Document.
1.6.1 Notwithstanding any contrary provision the Parties shall be responsible for the acts and
omissions of any of their Affiliates or for the failure of an Affiliate to comply with a
1.7 As at the Commencement Date, the following Annexures form part of this Agreement:
1.7.1 Annexure “A”: Definitions; and
1.7.2 Campaign Documents.
2 DEFINITIONS AND INTERPRETATION
2.1 In this Agreement, unless otherwise specified or inconsistent with the context, the
definitions set out in Annexure “A” shall apply.
2.2 Subject to clause 2.4 , the Parties shall be entitled to insert additional definitions in
2.3 If any provision in Annexure “A” or any definition inserted in a Campaign Document is a
substantive provision conferring rights or imposing obligations on any Party, effect shall be
given to it as if it were a substantive provision in this Agreement.
2.4 References to:
2.4.1 the masculine includes the feminine and the neuter;
2.4.2 the singular includes the plural and vice versa;
2.4.3 “persons” are to natural persons and juristic persons, including bodies corporate, firms,
other unincorporated associations and governmental or supra-national authorities;
2.4.4 the words “include”, “includes”, “including” and any derivations of them shall be construed to include the words “but not limited to” after them;
2.4.5 statutory provisions shall be construed as references to those provisions as respectively
amended, consolidated, extended or re-enacted from time to time and shall be construed
as including references to the corresponding provisions of any earlier legislation directly
or indirectly amended, consolidated, extended or replaced by those statutory provisions
or re-enacted and shall include any orders, ordinance, regulations, instruments or other
subordinate legislation made under the relevant statute; and
2.4.6 “days” are references to normal calendar days unless specifically stipulated as being Business Days.
2.5 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 Business Day.
2.6 Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
2.7 Where the approval or consent of any Party is required in terms of this Agreement, the
Parties hereby agree that such approval or consent shall not, unless expressly provided to
the contrary, be unreasonably withheld or delayed by the Party who is required to give
2.8 Any Party shall, where relevant, be deemed to be references to, or to include, as
appropriate, their respective successors in title or permitted assigns.
2.9 The rule of construction that the Agreement shall be interpreted against the Party
responsible for the drafting or preparation of the agreement shall not apply.
2.10 Terms other than those defined within the Agreement will be given their plain English
meaning and those terms, acronyms and phrases known in general commercial or industry-
specific practice will be interpreted in accordance with their generally accepted commercial
or industry-specific meanings.
3 COMMENCEMENT AND DURATION
3.1 This Main Agreement shall commence on the Commencement Date and shall, subject to
clause 4.2 and 23 , endure indefinately.
3.2 All retained / subscription services and or Products are terminable on 30 days notice from
the subscription service renewal date and subject to same being received prior to the end of
the then current term of the subscription service or as otherwise agreed and recorded in the
relevant Campaign Document.
3.3 Each Campaign Document shall, irrespective of the Commencement Date, commence on
the Commencement Date stipulated on the relevant Campaign Document and shall, subject
to clause 23 , endure for the Duration stipulated therein.
4 NATURE OF RELATIONSHIP
4.1 The relationship between the Parties shall be that of independent contractors and nothing in
this Agreement shall be interpreted as constituting a partnership, employment or an agency
relationship between the Parties or between either Party and any of the the other Party’s
4.2 Neither Party shall have any authority to bind the other in any way whatsoever, including,
but not limited to:
4.2.1 entering into contractual obligations on behalf of the other Party;
4.2.2 incurring any liability on behalf of the other Party;
4.2.3 settling or waiving any claim against or by the other Party;
4.2.4 entering into any oral arrangements, thereby binding either Party to such arrangements;
4.2.5 making any promises, representations, warranties or guarantees in respect of the Services other than those contained in this Agreement.
5 RELATIONSHIP MANAGEMENT
5.1 The Parties shall each nominate a Relationship Manager who shall be accessible,
contactable and authorised to resolve issues and assigned with the duty to ensure that the
obligations in terms of the Agreement are properly fulfilled.
5.2 A Party may change its Relationship Manager at any time by notifying the other Party
thereof in Writing.
5.3 Digital Kungfu's Relationship Manager and the Client’s Relationship Manager will meet at
intervals as agreed between the Parties from time to time, or as recoded in the relevant
Campaign Document. Unless otherwise agreed by Digital Kungfu's Relationship Manager
and the Client’s Relationship Manager, meetings shall take place at a location agreed to by
both Parties. Such meetings may be held by conference call between them, if they are in
5.4 The Parties acknowledge that further provisions may be agreed in a Campaign Document
regarding reporting, meetings and other general governance matters relating to the
particular Services being rendered by Digital Kungfu.
6 GOOD FAITH
6.1 The Parties undertake in favour of each other to do all such things, perform all such acts
and take all steps to procure the doing of all such things and the performance of all such
acts, as may be necessary or incidental to give or be conducive to the giving of effect to the
terms, conditions and import of this Agreement.
6.2 The Parties shall at all times during the continuance of this Agreement observe the
principles of good faith towards one another in the performance of their obligations in terms
of this Agreement. This implies, without limiting the generality of the foregoing, that they –
6.2.1 shall at all times during the term of this Agreement act reasonably, honestly and in good faith;
6.2.2 shall perform their obligations arising from this Agreement diligently and with reasonable care, skill and expertise; and
6.2.3 shall make full disclosure to each other of any matter that may affect the execution of this Agreement.
7 PROCESS TO REQUEST SERVICES
7.1 The Parties shall negotiate the details of the Products and/or Services in good faith with the
aim of reaching consensus on the material terms of a binding Campaign Document.
8 SERVICES AND PERFORMANCE MANAGEMENT
8.1 Digital Kungfu shall perform the Services and/or provide the Products in accordance with
the terms of the relevant Campaign Documents from time to time.
8.2 In the discharge of its duties, Digital Kungfu shall comply with all reasonable directions of
the Client as may be notified to Digital Kungfu in Writing from time to time as to the nature
and scope of the Services and/or Products to be provided.
8.3 Nothing in this clause 9 shall affect Digital Kungfu's right to exercise its own judgment and
to utilise its skill as it considers most appropriate in order to achieve compliance with the
said directions or otherwise to comply with its obligations under this Agreement.
8.4 The Parties agree that the Services and/or Products will be subject to amendments from
time to time to meet the specific requirements of the Client, provided that such amendments
shall only be effective once recorded in Writing.
8.5 Digital Kungfu shall render the Services and provide the Products in a professional manner
with due care, skill and diligence.
9 VARIATION PROCEDURES
9.1 No Variation. Subject to the provisions of this clause 10 , no variation, addition or
consensual cancellation of this Agreement or any Campaign Documents shall be of any
force or effect unless reduced to Writing and signed by the Parties or their duly authorised
representatives. For the purposes of clarity, no amendment or variation to this Agreement
may be concluded via email.
9.2 Amendments to Services. Further, post any campaign Services go-live but during the
currency of this Agreement and/or any Campaign Documents, events may occur which
require an amendment to the nature or scope of Services provided by Digital Kungfu to the
Client. Digital Kungfu will accordingly make variations, which it considers, in its sole
discretion, to be essential to meet Services objectives, during the currency of the Services.
9.3 In the event that lead generation or awareness targets projected in the proposal or
subsequent Campaign Documents prove unattainable due to circumstances not envisaged
by Digital Kungfu and or the Client, Digital Kungfu shall inform the Client of same and the
Parties shall agree on revised targets. Should the Parties be unable to agree, Digital Kungfu
shall be entitled to terminate this Agreement and/or the Campaign Documents and refund a
portion of the unused Media Budget.
9.4 In the event that a material variation of the Services is required, such amendments shall be
implemented on the following basis:
9.4.1 Party desiring amendment. Should either Party wish to propose any amendment to the
nature or scope of Services, such amendment shall be requested in the formal manner
by way of a written proposal to the other Party, detailing the desired amendments.
9.4.2 Proposal. Should such proposal be made by: –
184.108.40.206 the Client, it shall specify the reasons for that amendment and describe the
amendment in sufficient detail to enable Digital Kungfu to formulate a response.
Digital Kungfu shall investigate the likely impact of any proposed amendments upon
the Services and the provision thereof and shall provide the Client with a document
setting out such impact, including amended pricing and timeframes, on the relevant
services and campaign targets, in respect thereof (a “Variation Note”); or
220.127.116.11 Digital Kungfu, it shall detail in a Variation Note the reasons for and impact of the
amendment, if such amendment is material and falls outside of the realm of agile
methodology applied to the Services as agreed in the Campaign Documents, the
services required to implement the amendment and the effect that the amendments on
the relevant services and campaign targets, if implemented, will have on the relevant
Services, setting out sufficient detail to enable the Client to formulate a response.
9.4.3 Sign-off. The Parties shall discuss the proposed amendments and shall affect such
amendments to Digital kungfu Variation Notes as may be agreed. The Variation Notes
shall then be considered by the Client and approved or rejected in its discretion,
provided that if a Variation Note: –
18.104.22.168 is accepted by the Client, it shall be signed off by duly authorised representatives of the Parties and incorporated into this Agreement; or
22.214.171.124 is rejected by the Client, the Services shall continue to be provided by Digital Kungfu
on the existing terms of this Agreement and the relevant Campaign Documents,
provided that, if Digital Kungfu recommends a variation, which it considers in its sole
discretion, to be essential to meet Services and campaign objectives, the Client shall
not be entitled to reject the variation without the Parties agreeing to amended
Services and campaign deliverables and targets.
9.4.4 No amendment effective until sign-off. Neither Digital Kungfu nor the Client shall be
entitled to proceed or require the implementation of any amendment to the Services
pursuant to this clause 10 until such amendment and all matters relating thereto have
been agreed in Writing between the Parties in accordance with the provisions of this
clause 10 . Pending sign-off as aforesaid, the Parties will continue to perform their
obligations without taking account of the proposed amendments. Neither Party shall be
obliged to agree to any amendment proposed by the other Party, but the Parties will not
unreasonably delay or withhold their agreement to a proposed amendment.
10 GENERAL OBLIGATIONS OF DIGITAL KUNGFU
10.1 In addition to the specific responsibilities and obligations of Digital Kungfu set out in the
Campaign Documents and elsewhere in the Agreement, Digital Kungfu shall:
10.1.1 have all material licences, approvals, certificates, authorisations and consents required for the provision of the Services;
10.1.2 comply with Data Protection laws;
10.1.3 promptly consider and respond within a reasonable time to all communications,
proposals, documents and other information relating to the Services and/or Products
submitted to Digital Kungfu by the Client;
10.1.4 advise the Client Relationship Manager should (i) the Client Relationship Manager fail to
provide information that is necessary for the fulfilment of the Services and/or provision
of the Products; or (ii) the non-compliance by the Client or the Client Relationship
Manager with its duties and responsibilities be likely to result in a situation where the
Fees payable by the Client may need to be increased;
10.1.5 as soon as reasonably possible, inform and advise the Client in Writing of any
information or circumstances of whatsoever nature that may affect the Services to be
delivered and/or the Products to be provided, or have been provided, or the feasibility of a Project.
10.1.6 Any target commitments are subject to the market conditions present at the time of
entering into a Campaign Document prevailing as well as the the Client’s continued
standard operation, for the course of the term agreed to in the Campaign Documents.
11 FEES AND PAYMENT TERMS
11.1 In consideration for the Services to be rendered, and/or Products to be provided, and/or the
Projects to be conducted by Digital Kungfu for the Client, the Client shall pay Digital Kungfu
the Fees, disbursements and costs in the manner and frequency as set out in the relevant
11.2 Digital Kungfu shall forward a valid Written tax invoice to the Client Relationship Manager in
the format required by the Value Added Tax Act 1991.
11.3 All amounts shall separately reflect VAT. Digital Kungfu shall indicate on each tax invoice
all amounts as follows:
11.3.1 net of VAT;
11.3.2 VAT; and
11.3.3 total inclusive of VAT.
11.4 Unless stated to the contrary in the relevant Campaign Documents, and subject to the terms
of this Agreement, Services shall be invoiced on acceptance of quotation or the
Commencement date recorded in the relevant Campaign Document. Unless otherwise
agreed in the relevant Campaign Document, full payment will be required upfront and prior
to commencement of the Services, Production and campaign launch.
11.5 The Client shall be liable for any incidental expenses incurred by Digital Kungfu in the
rendering of the Services, subject to Digital Kungfu obtaining the Client’s prior written consent.
11.6 The Fees due in repect of any Products provided shall be paid monthly in advance, in
accordance with the terms agreed in the relevant Campaign Document.
11.7 The Client shall make payment to Digital Kungfu by means of electronically based payment
on the bank information supplied to the Client by Digital Kungfu from time to time.
11.8 The Client shall not be entitled to set-off any amount due to it by Digital Kungfu against any
amount due to Digital Kungfu by the Client, unless it is in possession of a valid court order
requiring an amount equal to such set-off to be paid by Digital Kungfu to the Client.
11.9 Should the Client dispute any amount appearing on an invoice submitted to the Client
pursuant to this Agreement (“the affected invoice”), the Client shall, within 5 (five) Business
Days of receipt of the affected invoice, notify Digital Kungfu, in Writing, of such dispute,
11.9.1 the affected invoice;
11.9.2 the specific amount in dispute; and
11.9.3 the reasons or grounds for such dispute.
11.10 Any amount so disputed shall be regarded as "due and payable" as contemplated above,
despite the dispute. The affected invoice shall be resolved between the Parties' respective
Relationship Managers and Relationship Managers (or their duly authorised
representatives) within 10 (ten) Business Days of such dispute being notified by the Client
to Digital Kungfu. Failing resolution, the provisions of clause 22.1 shall apply.
12.1 The Parties agree that reporting requirements shall be addressed in each Campaign
13 GENERAL OBLIGATIONS OF THE CLIENT
13.1 In addition to the specific responsibilities and obligations of the Client set out in the
Campaign Documents and elsewhere in this Agreement, the Client shall:
13.1.1 act in all respects with due care and diligence and in good faith towards Digital Kungfu;
13.1.2 comply with all Data Protection Laws and treat the Personal Information that comes to
their knowledge or into their possession as confidential and not disclose it without the
prior Written consent of Digital Kungfu;
13.1.3 ensure that all necessary information that is relevant for the purposes of rendering the
Services is provided to Digital Kungfu, and the Client hereby agrees that Digital Kungfu
shall not be liable for any delay in providing, or failure to provide, the Services as a result
of the Client failing to provide such necessary information;
13.1.4 promptly consider and respond to all communications, proposals, requests, documents
and other information relating to the Services and/or Products submitted by Digital Kungfu to the Client;
13.1.5 notify Digital Kungfu, in Writing, of any performance concerns and allow sufficient time for Digital Kungfu to respond and correct areas of concerns;
13.1.6 inform Digital Kungfu of any information or developments which may come to the
Client’s attention while this Agreement remains in force, which might have a bearing on
or be relevant to the Services and/or Products; and
13.1.7 procure that Digital Kungfu’s Staff are afforded reasonable access to the Client website
domain where necessary and to such other amenities, resources and infrastructure as
are reasonably necessary to enable Digital Kungfu to provide the Services and/or
Products and/or conduct the Projects in accordance with the terms of the Campaign
14.1 Digital Kungfu shall be entitled to subcontract the performance of the Services and/or Products.
14.2 Digital Kungfu shall remain fully responsible for the proper performance of the Services
and/or products in accordance with the terms of this Agreement and Digital Kungfu shall
ensure that all parties engaged in the provision of the Services and/or Products render such
Services and provide such Products in accordance with the terms of this Agreement.
15 PROTECTION OF PERSONAL INFORMATION
15.1 Both Parties warrant that they will abide the provisions of the Data Protection Legilstaion in
the execution of this Agreement.
15.2 The Parties warrant that they shall:
15.2.1 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 Data Subjects;
15.2.2 only Process the Personal Information of Data Subjects obtained in compliance with the provisions of the Acts;
15.2.3 obtain and maintain all necessary Data Subject consents;
15.2.4 ensure that the Personal Information Processed is up to date;
15.3 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 the Processor is entitled to undertake in
accordance with this Agreement) without the express prior written consent of the Data
Subject, save that the Processor may carry out reasonable further Processing strictly in
order to comply with an obligation which is imposed on them by law.
16 PERSONAL INFORMATION INDEMNITY
16.1 The Client hereby indemnifies and holds Digital Kungfu, its Affiliates and their respective
staff, successors, cessionaries, delegatees and assigns, harmless from any and all Losses
of both a patrimonial and non-patrimonial nature, all costs, expenses and damage, including
consequential Losses and damage as well as penalties and fines arising from the Client’s
non-compliance with the provisions of this Agreement and any relevant data protection
legislation regardless of whether any such loss or damage occurred as a result of a force
majeure event. The aforementioned indemnity shall also extend to, without limitation –
16.1.1 any reputational damage to Digital Kungfu;
16.1.2 any costs, fines and expenses directed by the Data Protection Regulator or any court of law; and/or
16.1.3 all Losses and damage relating to the publication of any Personal Information security
breach and related call centre and other costs incurred to support the affected Data
17 INTELLECTUAL PROPERTY RIGHTS
17.1 Ownership and title of all Intellectual Property rights in all works either first developed or
created by Digital Kungfu prior to the Commencement Date, except those developed or
created by Digital Kungfu in terms of a predecessor to this Agreement or a Campaign
Document executed in terms of such predecessor to this Agreement, and ownership and
title of all Intellectual Property rights in all works developed by Digital Kungfu independently
from or not directly in relation to the performance of its obligations under this Agreement,
shall remain vested in Digital Kungfu.
17.2 Notwithstanding clause 18.3 , ownership and title of all Intellectual Property rights in all
works developed or created by Digital Kungfu during the term of this Agreement but not
directly pursuant to performing its obligations under this Agreement (e.g. such as part of
Digital Kungfu’s own research and development activities), shall remain vested in Digital
Kungfu even if handed to the Client pursuant to this Agreement.
17.3 Ownership and title of all Intellectual Property rights in all trademarks, present and future
rights of copyright, developed or created during the term of this Agreement as an agreed
deliverable in terms of a Campaign Document, shall vest in the Client once fully paid for by
the Client. This does not include stock images licensed to Digital Kungfu. The provisions of
this clause 18.3 shall apply whether or not such works are used by the Client. Insofar as
may be necessary, and subject to the Client having paid all Fees and other amounts and not
otherwise being in material breach of this Agreement or any applicable Campaign
Documents, Digital Kungfu shall provide the Client with high resolution pngs and where
applicable pdf’s. The Client grants Digital Kungfu a non-exclusive, non-transferable, non-
sublicensable, royalty free and perpetual licence to use such Intellectual Property for the
purposes of performing its obligations under this Agreement and any Campaign
17.4 The assignment of Intellectual Property rights by Digital Kungfu to the Client as envisaged
in clause 18.3 shall be deemed to take place on full payment of all Fees due to Digital
Kungfu in respect of such work and shall not include the assignable moral rights in the
Intellectual Property so as to allow Digital Kungfu to show case any work created for the
Client. Such assignment shall be free of any additional consideration of whatsoever nature
except for all Fees, disbursements and costs incurred, it being recorded that the Fees paid
to Digital Kungfu by the Client for the Services in this Agreement constitute a fair and
reasonable consideration for such assignment.
17.5 Digital Kungfu shall procure that all Intellectual Property rights in all materials and works
that are commissioned by Digital Kungfu from any third party shall vest in Digital Kungfu,
so that Digital Kungfu, in turn, will be placed in a position to assign such rights to the
Client. To the extent that Digital Kungfu is unable to ensure that third party Intellectual
Property rights vest in Digital Kungfu, it shall ensure that such rights vest in the Client. The
aforegoing shall not preclude Digital Kungfu from acquiring Intellectual Property rights that
are in any way limited due to commercial reasons to be agreed with the Client.
17.6 Intellectual Property rights in all works developed or created solely by the Client or its Staff
and imparted to or handed over by the Client or its Staff to Digital Kungfu, whether prior to
or after the Commencement Date, shall remain vested in the Client. Digital Kungfu shall use
the Client Intellectual Property imparted to or handed over by the Client or its Staff to Digital
Kungfu strictly in accordance with the terms of this Agreement and only for the purposes of
providing the Services, and shall specifically not be permitted to use the Client Intellectual
Property for the benefit of any person outside the the Client Group or without the prior
Written consent of the Client, which may be withheld at the Client’s sole discretion.
17.7 Subject to this clause 18 and clause 19.9 , neither Party shall acquire any rights, title or
interest of any kind in any Intellectual Property owned by the other Party.
17.8 Each Party shall:
17.8.1 not do or permit any acts to be done which are calculated to prejudice, affect, impair or
destroy the right, or interest of the other Party’s Intellectual Property rights; and
17.8.2 forthwith notify the other Party in Writing of any actual or threatened infringement of the
other Party’s Intellectual Property rights which may come to its attention, and it shall, at
the request and cost of the other Party, take all steps as the other Party shall from time to
time consider necessary for the protection of the other Party's Intellectual Property
17.9 Subject to each Party’s compliance with clause 18.10 , each Party (“the Indemnifying Party”)
indemnifies the other Party (“the Indemnified Party”) against all claims for Losses instituted
by a third party against such Indemnified Party and pay the amounts finally awarded against
such other Party by a court of law (or similar forum) or agreed in settlement negotiations
between the third party and the Indemnifying Party, to the extent that such claims arise out
of any infringement of a third party’s Intellectual Property supplied by the Indemnifying
Party to the Indemnified Party (each a “Third Party IP Claim”), unless such claim arose as a
result of the Intellectual Property being used other than in accordance with this Agreement
and/or any Campaign Documents and/or the Indemnifying Party’s reasonable instructions
and unless the Intellectual Property has been modified in any way by anyone other than the
Indemnifying Party or its Staff.
17.10 The Indemnified Party shall as soon as is reasonably possible give the Indemnifying Party
notice of receipt of a Third Party IP Claim and shall provide the Indemnifying Party and its
professional advisers with all reasonable assistance and information that may be required
by them in relation to such Third Party IP Claim. The Indemnified Party shall not make any
admission of liability, agreement or compromise in relation to the Third Party IP Claim
without the prior written consent of the Indemnifying Party (such consent not to be
unreasonably conditioned, withheld or delayed).
17.11 The Indemnified Party shall have the right, at its own cost and expense, to participate in the
settlement negotiations to protect its interests. Any settlement of the Third Party IP Claim
reached between the Indemnifying Party and the third party shall not, without the prior
Written approval of Indemnified Party (which approval shall not be unreasonably withheld
or delayed), obligate or impose liability of any kind on Indemnified Party.
17.12 Once a Third Party IP Claim is brought against the Indemnified Party, or if in the
Indemnifying Party’s reasonable opinion a Third Party IP Claim is likely to be brought, the
Indemnifying Party shall, with the Written approval of Indemnified Party (which shall not be unreasonably withheld), promptly:
17.12.1 procure for Indemnifying Party the right to continue using the infringing Intellectual Property;
17.12.2 modify the infringing Intellectual Property so as to render the same non-infringing; or
17.12.3 replace it with Intellectual Property which is functionally equivalent to the infringing Intellectual Property so as to render the same non-infringing.
18.1 The Receiving Party acknowledges the importance of the Confidential Information to the
Disclosing Party and, where applicable, third party proprietors of such information, and
recognises that the Disclosing Party and/or third party proprietors may suffer irreparable
harm or loss in the event of such information being disclosed or used otherwise than in
accordance with this Agreement.
18.2 The Receiving Party agrees and undertakes:
18.2.1 except as permitted by this Agreement, not to disclose or publish any Confidential
Information in any manner, for any reason or purpose whatsoever without the prior
Written consent of the Disclosing Party and provided that in the event of the Confidential
Information being proprietary to a third party, it shall also be incumbent on the Receiving
Party to obtain the consent of such third party;
18.2.2 except as permitted by this Agreement, not to utilise, employ, exploit or in any other
manner whatsoever use the Confidential Information for any purpose whatsoever without
the prior Written consent of the Disclosing Party and provided that in the event of the
Confidential Information being proprietary to a third party, it shall also be incumbent on
the Receiving Party to obtain the consent of such third party; and
18.2.3 to take all practical steps, both before and after disclosure, to impress upon the Staff that
are given access to Confidential Information the secret and confidential nature thereof.
18.3 All Confidential Information disclosed by the Disclosing Party to the Receiving Party or
which otherwise comes to the knowledge of the Receiving Party, is acknowledged by the
18.3.1 to be proprietary to the Disclosing Party or where applicable, the relevant third party proprietor; and
18.3.2 not to confer any rights of whatsoever nature in such Confidential Information on the
18.4 The Receiving Party shall protect the Confidential Information in the manner, and with the
endeavour, of a reasonable person protecting his/her own Confidential Information. In no
event shall the Receiving Party use less than reasonable efforts to protect the
confidentiality of the Confidential Information.
18.5 The Disclosing Party may at any time on Written request to the Receiving Party, require that
the Receiving Party immediately returns to the Disclosing Party any Confidential
Information and may, in addition, require that the Receiving Party furnish a Written and
Signed statement to the effect that upon such return, it has not retained in its possession or
under its control, either directly or indirectly, any such Confidential Information or material.
Alternatively, the Receiving Party shall, as and when required by the Disclosing Party on
Written request to the Receiving Party, destroy all such Confidential Information and furnish
the Disclosing Party with a Written and Signed statement to the effect that the same has
been destroyed. The Receiving Party shall comply with any request in terms of this clause
19.5 within 7 (seven) days of receipt of such request.
18.6 Digital Kungfu may retain Confidential Information to the extent required by, and for the
duration of any Services performed in terms of this Agreement, subject to the right of the
Client to recover the Confidential Information at any time in terms of clause 19.5 .
18.7 Each Party shall ensure that its Staff who have access to the other Party’s Confidential
Information sign a confidentiality undertaking containing substantially the same terms and
conditions as those set out above, unless Staff has Signed a confidentiality undertaking as
part of their employment contract.
18.8 The Parties record that this clause 19 shall not prevent the Receiving Party from disclosing
Confidential Information to its Affiliates, attorneys, professional advisers or auditors,
provided that such:
18.8.1 disclosure is reasonably required by the Receiving Party for the purposes of conducting its business activities or rendering the Services; and
18.8.2 Affiliates, attorneys, professional advisers or auditors are obliged to maintain the confidentiality of the Confidential Information.
18.9 Nothing contained in this Agreement will restrict the Receiving Party from the use of any
generic ideas, concepts, know-how, or techniques developed or learned by such Party in
the course of performing any Services under this Agreement, provided that in doing so the Receiving Party does not disclose the Disclosing Party’s Confidential Information to third parties or infringe the Intellectual Property rights of the other Party or third parties who
have licensed or provided materials to the other Party.
18.10 Each Party agrees not to make any public announcements or any disclosures in respect of
this Agreement or the contents thereof without the other Party’s prior Written approval,
except to the extent required by law or by order of any court or tribunal of competent
jurisdiction, provided that:
18.10.1 reasonable Written notice is given to the other Party prior to such disclosure to enable
the affected Party to take whatever steps it deems necessary to protect its interests in
this regard; and
18.10.2 a Party discloses only that portion of the Agreement which it is legally required to disclose.
18.11 The provisions of this clause 19 shall survive the expiration or termination of this Agreement.
19 REPRESENTATIONS AND WARRANTIES
19.1 Each Party represents and warrants that:
19.1.1 by Signing this Agreement it is acting as principal and not as agent for an undisclosed principal;
19.1.2 the execution and performance of this Agreement has been duly authorised by the requisite corporate action on the part of such Party; and
19.1.3 it has not violated any Applicable Law or policies of the other Party of which it has been
given Written notice, regarding the offering of unlawful inducements in connection with
19.2 Each of the warranties and undertakings set out in this clause 20 shall be read separately
from and without prejudice to and without derogation from the others.
19.3 Disclaimer of warranties. Digital Kungfu hereby excludes and disclaims all warranties,
whether express or implied, statutory or otherwise, except those warranties expressly made
in this clause 20 . Without limiting the a foregoing Digital Kungfu hereby disclaims all
warranties of fitness for purpose and any guarantee for a particular result or set of results.
The Parties hereby specifically agree that Digital Kungfu cannot and is not required to
gurantee any such result pursuant to this Agreement.
19.4 The Client warrants that it has not been induced to enter into this Agreement by any prior
representations, warranties or guarantees, whether oral or in Writing, except as expressly
contained in this clause 20 .
20 LIMITATION OF LIABILITY
20.1 Notwithstanding anything to the contrary in this Agreement, the maximum aggregate
amount that either Party shall be entitled to recover from the other Party for any and all
claims under or in relation to this Agreement (other than in respect of a claim relating to
payment of monies owed by the Client to Digital Kungfu, which shall be unlimited) shall be
equal to the Fees (excluding all third party or other costs) that have become due and
payable within the previous 12 (twelve) months.
20.2 Subject to the provisions of this clause 21 , in the event of a Party being in breach of any
provision of this Agreement, that Party (“the Defaulting Party”) shall be liable to the other
Party (“the Aggrieved Party”) for any actual and proven Losses incurred by the Aggrieved
Party as a result of the Defaulting Party’s failure to perform its obligations as described in
20.3 Subject to the provisions of clause 21.4 :
20.3.1 should the Defaulting Party be in breach of any provision of this Agreement, the
Defaulting Party shall be liable to the Aggrieved Party for the payment of all Losses
arising out of such breach which are regarded in Applicable Law as being Losses of a
20.3.2 neither Party shall be liable to the other Party for any consequential damages, punitive
damages, loss of income, loss of profit, loss of goodwill, loss of reputation or business
or business opportunity, irrespective of cause of action and howsoever arising.
20.4 Nothing in this Agreement shall exclude or in any way limit the Defaulting Party’s liability to
the Aggrieved Party for direct or indirect Losses suffered by the Aggrieved Party in respect of:
20.4.1 fraud, theft, death or personal injury caused by the Defaulting Party’s wilful misconduct or gross negligence; or
20.4.2 any liability to the extent that it may not be excluded or limited as a matter of Applicable Law.
20.5 The limitation of liability set out in clause 21.1 shall not apply to a breach of clauses 18 and
21 DISPUTE RESOLUTION
21.1 The Parties shall initially attempt in good faith to promptly resolve any dispute arising out of
or relating to this Agreement through negotiations between the respective Relationship
Managers and Relationship Managers (or their duly authorised representatives) within 10
(ten) Business Days after the dispute was notified in Writing by one to the other.
21.2 If the dispute is not resolved through negotiations as described in clause 22.1 , within the
aforementioned 10 (ten) Business Day period, either Party may elect on Written notice to the
other Party to have the dispute finally resolved in accordance with the Rules of the
Arbitration Foundation of Southern Africa (“AFSA”) by an arbitrator appointed by AFSA,
provided that there shall be no right of appeal.
21.3 The arbitration shall be held –
21.3.1 with only the Parties and their representatives present thereat; and
21.3.2 at Sandton, South Africa, unless specifically provided otherwise in a Campaign
21.4 The decision of the arbitrator shall be final and binding on the Parties, who shall summarily
carry out that decision and either of the Parties shall be entitled to have the decision made
an order of any court with competent jurisdiction.
21.5 This clause 22 shall not be interpreted to mean that either of the Parties shall be precluded
from obtaining interim relief on an urgent basis from a court of competent jurisdiction
pending the decision of the arbitrator. In such event, the Parties consent to the jurisdiction
of the High Court of South Africa Gauteng Local Division, Johannesburg.
22 BREACH AND TERMINATION
22.1 Any Party shall be entitled to cancel this Agreement by written notice if the other Party
commits a material breach of its obligations and, provided the breach is capable of being
remedied, fails to remedy the breach within 10 (ten) Business Days of receiving written notice to do so.
22.2 For the avoidance of doubt it is specifically recorded that should any Party breach any of its
obligations in terms of any of the Campaign Documents, such breach shall constitute a
material breach of its obligations in terms of this Agreement.
22.3 The remedies in clause 23.1 shall not be exhaustive and each such remedy shall be in
addition and without prejudice to any of the remedies which that Party may have whether or
not expressly provided for in this Agreement.
22.4 The cancellation or termination of this Agreement for any reason shall be without prejudice
to any obligation by either party to the other which shall have accrued and become owing at
the time of the cancellation or termination.
22.5 Once the Services have been ordered and a Campaign Documents has been concluded they
are not cancellable and are only terminable in accordance with this clause 23 .
23 CONSEQUENCES OF TERMINATION
23.1 Any termination of this Agreement shall not affect the rights of either of the Parties:
23.1.1 that accrued before the termination of this Agreement; or
23.1.2 which specifically or by their nature survive the termination thereof.
23.2 Upon termination of this Agreement, and subject to the provisions of clause 16 , each Party
shall return all Confidential Information in its possession, as well as any materials
containing, pertaining or relating to the Personal Information disclosed pursuant to this
Agreement and all documents, storage media, drawings and any other medium containing
the Confidential Information (as well as all copies, notes or reproductions thereof) of the
other Party, to the other Party and, if requested, shall delete and remove the Confidential
Information from its electronic data bases.
24 AUDIT RIGHTS
24.1 Digital Kungfu shall keep and maintain complete and accurate records of such financial and
non-financial Campaigns, records and information relating to the performance of the
Services, the Fees, information technology, infrastructure, security, and any other
information relating to this Main Agreement and the relevant Campaign Documents (“Audit
Records”) during the term of this Agreement and until the later of:
24.1.1 5 (five) years after the date of expiry and/or termination of a Campaign Documents and any Termination/Expiration Assistance as described in clause; or
24.1.2 the date when any such Audit Records are no longer required to comply with any Applicable Law.
24.2 The Audit Records shall be maintained in an orderly, reasonably auditable and accessible manner.
24.3 Upon expiry of the period referred to in clause 25.1 , any destruction of Audit Records by
Digital Kungfu shall be carried out in a controlled and secure manner and in accordance
with Applicable Law.
25 PROHIBITION AGAINST SOLICITATION OF STAFF
25.1 The Parties agree that they shall not during the Duration and for a period of 12 (twelve)
months after the termination or expiration of the Duration of a specific Campaign Document
in any capacity, whether directly or indirectly, without the Written consent of the other Party
offer employment to or cause employment to be offered to or cause to be employed any
person employed or contracted by the other Party and engaged by the last-mentioned Party
in the provision or receipt of the Services and/or Products.
25.2 In the event that of a breach of this clause, the breaching Party shall be liable for a penalty
equal to the annual cost to company of the solicited employee. A statement provided by the
first employer, evidencing the annual cost to company of the solicited employee, shall be
prima facie proof of the penalty amount owed by the Client.
25.3 The Parties further agree that the aforesaid provisions are fair and reasonable and go no
further than is necessary to protect the interests of the Parties in respect of their Staff.
26 FORCE MAJEURE
26.1 Neither Party shall have any claim against the other Party (“the Affected Party”) for any
delay or failure of the Affected Party to carry out any of its obligations under this
Agreement, other than a payment obligation, arising from or attributable to acts of God, war,
terrorism, government, labour action or unrest, failure of third party suppliers or any other
cause whatsoever beyond the reasonable control of the Affected Party (“force majeure”).
26.2 The performance of the obligations of the Affected Party shall be suspended for the
duration of the force majeure, which shall be deemed to commence only upon the date of
written notice by the Affected Party to the other Party. Upon cessation of the force majeure,
this Agreement shall again become fully operative and the Affected Party shall immediately
resume its performance.
27 EXCUSING CAUSES
27.1 In the event of an Excusing Cause arising:
27.1.1 Digital Kungfu will notify the Client, in Writing, of the Excusing Cause within a reasonable period of becoming aware of such Excusing Cause;
27.1.2 the time for Digital Kungfu performance shall be extended on a reasonable basis in
proportion to the prejudice caused by the Excusing Cause and Digital Kungfu may
charge for any additional hours required to execute the Services or remedy the Excusing
27.1.3 any deliverables affected by the Excusing Cause (hereinafter referred to as "the Affected
Service Deliverable"), as well as all other service deliverables on the affected critical path
of the Affected Service Deliverable, if any, shall be extended by a period equal to the
period by which the Affected Service Deliverable is de facto impacted as agreed by the
Parties in Writing, or, failing agreement as determined in terms of the Dispute Resolution Procedure;
27.1.4 if an amount would have been payable to Digital Kungfu by the Client had it not been due
to an Excusing Cause, Digital Kungfu shall be entitled to invoice the Client for work
actually completed at an Affected Service Deliverable date, notwithstanding the fact that
a milestone has not been achieved; and
27.1.5 Digital Kungfu shall not be liable for any failure to provide any Services in terms of this Agreement where such failure is a result of any Excusing Cause.
28 ANTIBRIBERY AND CORRUPTION
28.1 Digital Kungfu agrees to comply with such anti-bribery and corruption policies as the Client
may communicate to Digital Kungfu from time to time as well as all relevant laws applicable
to the prevention and combating of bribery and corruption. In addition, Digital Kungfu shall
ensure that it shall not:
28.1.1 engage in bribery or corrupt activities;
28.1.2 offer gifts to any of the Client Staff, whether directly or indirectly through third parties, in an attempt to influence the person receiving the gift;
28.1.3 make improper payments to governments or regulatory authorities with the view to
facilitating or expediting the performance of governmental or regulatory action which are
in any way related to the Services; or
28.1.4 accept from the Client, its Third Party suppliers, Affiliates, or Staff, gifts/hospitality,
whether directly or indirectly, that are aimed at influencing the person receiving the
29.1 The Parties select as their respective domicile address the physical addresses set out in the
Campaign Documents. Likewise, the Parties choose all the addresses and contact details
set in the Campaign Documents for the purposes of giving or sending any notice or
communication provided for or required in terms of this Agreement, or such other
addressor email address as may be substituted by Written notice given as herein allowed.
29.2 Any notice or communication to be given by a Party to the other shall be deemed to have
been duly received, unless the contrary is proved, by the other Party:
29.2.1 if addressed to the addressee at its domicile or postal address and posted by prepaid
registered post, on the 7th (seventh) Business Day after the date of posting thereof; or
29.2.2 if delivered to the addressee’s domicile address by hand, on the date of delivery thereof,
provided such date is a Business Day or otherwise on the next Business Day; or
29.2.3 if sent by email to the addressee, on the 1st (first) Business Day following the date of
sending thereof, in the absence of any administrator or mail server error messages.
29.3 Each Party shall be entitled to change its address and contact details by giving 7 (seven)
Business Days’ Written notice to the other Party’s Relationship Manager.
30 CESSION OR DELEGATION
30.1 Neither Party may cede its rights or delegate its obligations in terms of this Agreement,
without the prior Written consent of the other Party which consent shall not be
31.1 No indulgence which either Party may grant the other shall constitute a waiver of or
prejudice the rights of the Party granting the indulgence.
32 WHOLE AGREEMENT
32.1 This Agreement constitutes the entire Agreement between the Parties with regard to the
subject matter hereof.
32.2 No addition to, variation, deletion, consensual termination or novation of this Agreement
(including this clause 33.2 ), and no waiver of any right arising from this Agreement or its
breach or termination shall be valid or enforceable unless it is in Writing and Signed on
behalf of both Parties.
33.1 In the event that any of the terms of this Agreement are found to be invalid, unlawful or
unenforceable, such terms will be severable from the remaining provisions, which shall
remain of full force and effect as if such invalid provisions had not been included herein.
33.2 If any invalid term is capable of amendment to render it valid, the Parties agree to negotiate
in good faith an amendment to remove the invalidity.
34.1 The Parties shall each pay their own costs of negotiating, drafting, preparing and
implementing this Agreement.
35 APPLICABLE LAW
35.1 This Agreement is governed by and shall be construed in accordance with the laws of the
Republic of South Africa.
36.1 Any provision of the Agreement, which contemplates performance or observance
subsequent to any termination or expiration of the Agreement, shall survive any termination
or expiration of the Agreement and continue in full force and effect.
36.2 Without limiting the generality of the aforesaid, the provisions of clauses 16 (Intellectual
Property Rights), 19 (Confidentiality), 16 (Protection of Personal Information), 17
(Representations and Warranties), 17 (Personal Identity Indemnities), 21 (Limitation of
Liability), 22 (Dispute Resolution), 23 (Termination and Breach), 24 (Consequences of
Termination), 25 (Audit Rights) and 26 (Prohibition against Solicitation of Staff) as well as
this clause 37.2 shall survive any termination, cancellation or expiration of this Agreement.
37 STIPULATIO ALTERI
Any provision in this Agreement which is stipulated for the benefit of any Affiliate of a Party
shall be capable of acceptance by such Party or any of its Affiliates at any time without
notice to any person.
38 ACCEPTANCE OF THESE TERMS AND CONDITIONS SHALL BE DEEMED TO HAVE TAKEN
PLACE IN THE EVENT THAT THE CLIENT ENGAGES WITH DIGITAL KUNGFU FOR THE
RECEIPT OF ANY SERVICES. EVERY INSTANCE OF THE SERVICES SHALL BE SUBJECT TO
THE ABOVE TERMS AND CONDITIONS.
ANNEXURE “A” – DEFINITIONS
1 In this Agreement, unless clearly inconsistent with or otherwise indicated by the context, the
following terms shall have the meaning assigned to them hereunder:
1.1 “Affiliates” mean any person, partnership, joint venture, corporation or other form of
enterprise, domestic or foreign, including but not limited to Subsidiaries and associates that
directly or indirectly, Control, are Controlled by, or are under common Control with a Party.
For purposes of this Agreement, the term “Subsidiaries” shall have the meaning ascribed
thereto in the Companies Act 71 of 2008, as amended;
1.2 “Agreement” means each Campaign Documents read with the Agreement, as each may be
amended in Writing by both Parties from time to time;
1.3 “Annexure” means an annexure attached to the Agreement;
1.4 “Applicable Law” means all law, as amended from time to time and applicable in the
Republic of South Africa, and includes, if applicable, Data Protection Laws;
1.5 “Business Day” means any day, except a Saturday, Sunday or official South African public
1.6 “Business Hours” means the hours between 08h00 (eight hundred hours) and 17h00
(seventeen hundred hours) on any Business Day;
1.7 “Call Down” means a direct telephonic presales engagement with a Market Qualified Lead
or Enriched Stakeholder by a Digital Kungfu Pre-Sales Agent, which may result in a Sales
1.8 “Campaign Documents” means accepted proposals, quotations, sales orders, invoices,
story brands and or Variation Notes together with any appendices thereto entered into
between Digital Kungfu and the Client in accordance with the terms of this Agreement. A Campaign Documents may specify, inter alia –
1.8.1 the contracting parties to the specific campaign / Services;
1.8.2 the Relationship Managers' details;
1.8.3 the description and objectives of the Project;
1.8.4 the particulars of any subscription product purchased
1.8.5 the scope and description of the Services to be rendered by Digital Kungfu (including,
where relevant, the approach, activities and Lead Vetting Criteria with associated target
dates and outcomes) and any agreed performance measurement standards described in this Agreement;
1.8.6 the Commencement Date and Duration thereof,
1.8.7 the termination or expiration provisions; and
1.8.8 any other content which the Parties agree is relevant to the specific Campaign
Documents being executed, including any legal terms specific to that Campaign
Documents or terms varying the terms of this Agreement.
1.9 “Commencement Date” means the date of first engagement between the Client and Digital
Kungfu and subsequently the start date or acceptance of proposal Campaign Documents
whichever comes first;
1.10 “Confidential Information” means Personal Information and any information or data which
by its nature or content is identifiable as sensitive, confidential and/or proprietary to the
Disclosing Party and/or any third party and/or any Third Party supplier, or which is provided
or disclosed in confidence and which the Disclosing Party or any person acting on its
behalf may disclose or provide to the Receiving Party or which may come to the knowledge
of the Receiving Party by whatsoever means. Disclosing Party’s Confidential Information
shall include (i) information relating to strategic objectives and planning for both its existing
and future needs; (ii) information relating to either Party’s business activities, business
relationships, products, services, clients and Staff; (iii) technical, scientific, commercial,
financial and market information and trade secrets; (iv) Intellectual Property that is
proprietary to a Party or that is proprietary to a third party and in respect of which the
Disclosing Party has rights of use or possession; (v) Disclosing Party’s plans, designs,
drawings, functional and technical requirements and specifications; (vi) information
concerning faults or defects in either Party’s systems, hardware and/or software or the
incidence of such faults or defects; (vii) agreements to which either Party is a party;
Confidential Information excludes information or data which (a) is lawfully in the public
domain or already in the possession of the Receiving Party from a source other than the
Disclosing Party at the time of disclosure to the Receiving Party; or (b) subsequently
becomes lawfully part of the public domain by publication or otherwise; or (c) subsequently
becomes available to the Receiving Party from a source other than the Disclosing Party
which is lawfully entitled, without any restriction on disclosure, to disclose such
Confidential Information; or (d) is disclosed pursuant to a requirement or request by
operation of law, regulation or court order; provided that the onus shall at all times rest on
the Receiving Party to establish that such information falls within such exclusions and
provided further that the information disclosed in terms of this Agreement will not be
deemed to be within the foregoing exclusions merely because such information is
embraced by more general information in the public domain or in a Party’s possession. The
determination of whether information is Confidential Information shall not be affected by
whether or not such information is subject to, or protected by, common law or statute
related to copyright, patent, trade or otherwise;
1.11 “The Client” means the Party receiving the Services and described in the Campaign
1.12 “Control” means in relation to a Party:
1.12.1 having, directly or indirectly, the power to direct, or cause the direction of, the
management and policies of that party, whether through the ownership of voting
securities in that or any other Party, by contract or otherwise; or
1.12.2 holding, directly or indirectly, such securities (or other rights) as confers on the holder
thereof the right to exercise more than 50% (fifty percent) of all votes exercisable in a
general meeting of the members of such Party;
1.13 “Data Protection Laws” means any and all laws relating to the protection of data or of
Personal Information relevant to a Party and shall include the protection of Personal
Information principles agreed to in this Agreement, including POPI and ECTA;
1.14 “Data Subject” means any living individual who is the subject of personal data whether in a
personal or business capacity;
1.15 “Digital Kungfu” means Matt Brown Media t/a Digital Kungfu (Proprietary) Limited, a
company with registration number 2016/490938/07 its holding company (Black Swan
Technology Holdings (Proprietary) Limited (registration number: 2020/571449/07)),
subsidiaries, affiliated companies and successors in title, with its registered address at 2 Addo Road, Morningside Manor, Sandton, 2196, South Africa;
1.16 “Disclosing Party” means the Party who discloses Confidential Information to the other Party in terms of this Agreement;
1.17 “Duration” means the period between the Commencement Date and the completion or
expiry of the Project or the Services rendered as stated in each Campaign Document;
1.18 “ECTA” means means the Electronic Communications and Campaigns Act No. 25 of 2002;
1.19 “Excusing Cause” means:
1.19.1 a force majeure event as contemplated in clause 27 hereof; or
1.19.2 a failure by the Client, or its Staff, to provide Input to Digital Kungfu:
126.96.36.199 within the timeframes contemplated in this Agreement, or failing such contemplation
within a reasonable period stipulated by Digital Kungfu in any written request for such
Client Input or within any period agreed by the Parties in Writing; or
188.8.131.52 which is not of the required accuracy, standard or quality, including, without
limitation, where such Client Input is defective, corrupted (in the case of data) or inaccurate;
1.19.3 where the Client breaches any term of this Agreement; or
1.19.4 where any bona fide dispute arises between the Parties;
1.20 “Fees” means the fees and/or costs as specified in the relevant Campaign Documents
payable by the Client to Digital Kungfu;
1.21 “Intellectual Property” includes all current and future intellectual property rights of any kind
whatsoever and however embodied which may subsist or be capable of protection
wheresoever in the world, including (without limitation) patents, trademarks, present and
future rights of copyright, rights in and to designs, rights in and to inventions, topography
rights, rights in and to trade secrets, rights in and to trade names, business names, domain
names and logos, the right to keep information confidential and private, rights in and to
know-how, rights in and to databases (including rights of extraction), and all rights and
forms of protection of a similar nature or having equivalent effect to any of them which may
subsist or be capable of protection as at the Commencement Date or thereafter
wheresoever in the world, whether or not any of these is registered and including
applications for any such rights or registration thereof and any goodwill related to or arising
from such rights;
1.22 “Losses” means all losses, liabilities, penalties, fines, damages and claims, and related
costs and expenses (including legal fees on the scale as between attorney and client,
tracing and collection charges, costs of investigation, and interest and penalties), but
excludes any consequential damages, punitive damages, loss of income, loss of profit, loss
of goodwill, loss of reputation or business or business opportunity;
1.23 “Main Agreement” means the main body of this Master Services Agreement (its terms and
conditions), including all Annexures, but excluding the Campaign Documents;
1.24 “Market Qualified Lead (MQL)” (or “Enriched Stakeholder”) means a lead deemed more
likely to become a customer compared to other leads, by virtue of firmagraphics and or
demographics, and or activities/behaviours;
1.25 “Media Budget” means any portion of project cost allocated to the purchase of media for
the purposes of generating Market Qualified Leads and awareness;
1.26 “Parties” means the Client and Digital Kungfu, and “Party” shall mean either one of them.
Where appropriate, “Party” shall mean a reference to an Affiliate of the Client or an Affiliate
of Digital Kungfu, as the case may be, which is the contracting Party in a Campaign
Documents and “Parties” shall in such instance have a corresponding meaning;
1.27 “Personal Information” means information defined from time to time as personal
information in any Data Protection Laws, including information relating to an identifiable,
living, natural person, and where it is applicable, an identifiable, existing juristic person,
1.27.1 information relating to the race, gender, sex, pregnancy, marital status, national, ethnic
or social origin, colour, sexual orientation, age, physical or mental health, well-being,
disability, religion, conscience, belief, culture, language and birth of the person
1.27.2 information relating to the education or the medical, financial, criminal or employment history of the person;
1.27.3 any identifying number, symbol, e-mail address, physical address, telephone number,
location information, online identifier or other particular assignment to the person;
1.27.4 the biometric information of the person;
1.27.5 the personal opinions, views or preferences of the person;
1.27.6 correspondence sent by the person that is implicitly or explicitly of a private or
confidential nature or further correspondence that would reveal the contents of the original correspondence;
1.27.7 the views or opinions of another individual about the person; and
1.27.8 the name of the person if it appears with other personal information relating to the
person or if the disclosure of the name itself would reveal information about the person;
1.28 “Pipeline Generation Budget” means any portion of project cost allocated to the generation
of Market Qualified Leads – whether inbound through paid digital marketing, or outbound
through research and direct engagement;
1.29 “POPI” means means the Protection of Personal Information Act No. 4 of 2013;
1.30 “Processing” means any operation or activity or any set of operations, whether or not by
automatic means, concerning Personal Information, including—
1.30.1 the collection, receipt, recording, organisation, collation, storage, updating or modification, testing of, retrieval, alteration, consultation or use;
1.30.2 dissemination by means of transmission, distribution or making available in any other form by electronic communications or other means; or
1.30.3 merging, linking, blocking, degradation, erasure or destruction;
1.30.4 and ‘Process’ has a corresponding meaning
1.31 “Production” means the conceptualising, copywriting, design and rendering of assets by Digital Kungfu;
1.32 “Product/s” means Leads Royale and any other products provided by Digital Kungfu either
in tandem with any Service or as a standalone Product;
1.33 “Project” means a project on which Digital Kungfu may be engaged by the Client and in
respect of which skills and roles will be made available by Digital Kungfu to render the
Services to the Client, as set out in the Campaign Documents, and includes defined initiatives, engagements and/or Services;
1.34 “Rand” or “R” or “ZAR” means South African Rand, the lawful currency of the Republic of South Africa;
1.35 “Receiving Party” means the Party, other than the Disclosing Party, to the extent that it
receives disclosure of any of the Confidential Information from the Disclosing Party in terms
of this Agreement;
1.36 “Relationship Manager” means the designated representative of each Party
1.37 “Sales Qualified Lead (SQL)” means a MQL whose contact information has been verified
and who has met additional minimum qualifying requirements (“Lead Vetting Criteria”) as
agreed by the Client and Digital Kungfu;
1.38 “Services” means the service provided to the Client, including any or all of the following:
campaigns for the creation of awareness and/or Market Qualified Leads (MQLs) or Enriched
Stakeholders and/or Call Downs and/or Sales Qualified Leads (SQL) from digital marketing
content creation services (Production) via targeted sponsored social media / Google
advertisements, website development and content creation, or from data enrichment and
direct outbound telephonic engagement as described in Campaign Documents,
subscription services in respect of any Digital Kungfu Products;
1.39 “Signed” or “Signature” means a hand-written signature, excluding any type-written
signature or signature appended by electronic communication. “Electronic communication”
has the meaning assigned to it in the Electronic Communications and Transactions Act 25 of 2002;
1.40 “Staff” means any employee, Subcontractor, agent, consultant or other representative of either Party;
1.41 “Subcontractor” means a person other than Digital Kungfu or its Staff who is contracted or
appointed by Digital Kungfu to perform any part of the Services or obligations undertaken
by Digital Kungfu in terms of this Agreement;
1.42 “Third Part” means a person who is appointed by the Client and/or any Affiliate of the Client as an independent contractor;
1.43 “VAT” means value added tax in terms of the Value Added Tax Act 89 of 1991 or any similar
tax or impact of a similar nature on the supply or sale of goods and/or services; and
1.44 “Writing” means a written document and includes e-mail, and “Written” shall have a
information (“Personal Information”) and other data that is collected by Matt Brown Show
Proprietary Limited, a company iwith its registered address at WeWork Austin TX 78701
United States 66 Congress Avenue (“Matt Brown Show”) in connection with our website,
located at https://www.mattbrownshow.com (the “Site”) and our related services (together
with the Site, the “Service(s)”).
b. By using our Services you are consenting to our processing of your Personal Information
“processing” means using or accessing information in any way, including, but not limited to,
collecting, storing, deleting, combining and disclosing information.
c. Our servers are located in Johannesburg, South Africa. Accordingly, if you reside outside
South Africa, by using the Services, you acknowledge and agree that your Personal
Information will be transferred to South Africa, and processed and stored in South Africa.
d. By using our Services, you understand that your information may be transferred to our
2. Log Data
a. When you interact with the Site or use our Services, our servers automatically receive and
store certain personally non-identifiable information (“Log Data”).
b. This Log Data is collected passively and may include information such as your IP address,
browser type or the domain from which you are visiting, the Site pages you visit, the search
terms you use, and any advertisements on which you click. For most users accessing the
Internet from an Internet service provider, the IP address will be different every time you log on.
c. We use Log Data to provide you with the Services and pool it with other information to
monitor the use of the Services, and for the technical administration of the Services. We do
not associate your IP address with any other Personal Information to identify you personally,
except in cases where we are asked to comply with a subpoena or other legal demand or
where we suspect that there has been a violation of our policies, our Terms of Service and/or applicable law.
d. Matt Brown Show uses the Personal Information you provide in a manner that is consistent
access to and use of our Services, to help us improve the content and functionality of the
Services and to better understand our users.
e. If you contact us by email through the Services, we may keep a record of your contact
information and correspondence, and may use your email address, and any information that
you provide to us in your message, to respond to you. In addition, we may use your contact
information to market to you, and provide you with information about our products and
services and the products and services of our partners that we believe may be of interest toyou.
f. If you decide at any time that you no longer wish to receive such marketing information or
communications from us, please follow the unsubscribe instructions provided in any of the
3. Information Sharing and Disclosure
a. We consider your information to be a vital part of our relationship with you. There are,
however, certain circumstances in which we may share your Personal Information with
certain third parties without further notice to you, as set forth below.
4. Service Providers
a. We engage certain trusted third parties to perform functions and provide services to us,
including, without limitation, hosting and maintenance, customer relationship, database
storage and management, and direct marketing campaigns. We will share your Personal
Information with these third parties, but only to the extent necessary to perform these
functions and provide such services.
5. Personal Information
a. Furthermore, in connection with the operation, promotion, advertising or marketing of our
Services, we may provide certain of our partners (e.g., special reward providers; etc.) with
Personal Information (e.g., your name) and other content or information related to you, in
order to access such information using information already in their possession. Please note:
each time we provide any of your Personal Information to our partners, we only provide
information to these partners that is publicly available or publicly viewable.
6. Business Transfers
a. Matt Brown Show may sell, transfer or otherwise share some or all of its assets, including
your Personal Information, in connection with a merger, acquisition, reorganization or sale of
assets or in the event of winding up.
7. Disclosures for Legal Purposes
a. Matt Brown Show may disclose your Personal Information if required to do so by law or in
the good faith belief that such action is necessary to comply with a legal obligation, protect
and defend the rights or property of Matt Brown Show, act in urgent circumstances to protect
the personal safety of users of the Services or the public, or protect against legal liability.
b. Matt Brown Show employs administrative, physical and electronic measures designed to
protect your information from unauthorized access. However, no Internet or email
transmission is ever fully secure or error free. We will make any legally-required disclosures
of any breach of the security, confidentiality, or integrity of your unencrypted electronically
stored Personal Information to you via email or conspicuous posting on this Site in the most
expedient time possible and without unreasonable delay, consistent with the legitimate
needs of law enforcement or any measures necessary to determine the scope of the breach
and restore the reasonable integrity of the data system.
8. Links to Other Websites
a. Our Services may contain links to other websites. The fact that we link to a website is not an
endorsement, authorization or representation of our affiliation with that third party. We do not
exercise control over third party websites. These other websites may place their own
cookies or other files on your computer, collect data or solicit personally identifiable
information from you. Other sites follow different rules regarding the use or disclosure of the
personally identifiable information you submit to them. We encourage you to read the
privacy policies or statements of the other websites you visit.
9. Our Policy Towards Children
a. If a parent or guardian becomes aware that his or her child has provided us with Personal
Information without his/her consent, he or she should contact us at
b. We do not knowingly collect Personal Information from children under 13. If we become
aware that a child under 13 has provided us with Personal Information, we will delete such
information from our files. If you are under the age of 13, please do not submit any Personal
Information through the Services.
c. We encourage parents and legal guardians to monitor their children’s Internet usage and to
Information via the Services without their permission.
a. The Services and our business may change from time to time. As a result, at times it may be
modified from time to time for any reason without prior notice. We will notify you of any
regularly for any changes.
and similar tracking technologies, such as tags, scripts and beacons, are small pieces of
code (referred to as cookies hereafter) that are stored on a device (computer, mobile phone,
tablet etc.) and enable us to personalise our and our clients content.
sure our website contains clear and easy to find information about our cookies.
c. Our cookie table lists the cookies we use, including third party cookies. 1.1 “VAT”
means value added tax in terms of the Value Added Tax Act 89 of 1991 or any similar tax or
impact of a similar nature on the supply or sale of goods and/or services; and 1.2 “Writing”
means a written document and includes e-mail, and “Written” shall have a corresponding
Cookie Name Purpose Source Contact Type
_ga Registers a unique ID that is used to generate statistical data on how the visitor uses
Legal Name: Matt Brown Show (Pty) Limited
Physical: WeWork Austin TX 78701 United States 66 Congress Avenue
Postal: WeWork Austin TX 78701 United States 66 Congress Avenue
Contact Details: Telephone Number: 27 (0)716702209
United States HTTP
_gat Used by Google Analytics to throttle request rate.
United States HTTP
_gid Registers a unique ID that is
used to generate statistical
data on how visitors use the
United States HTTP
Ads/ga-audiences Used by Google AdWords
to re-engage visitors who
are likely to convert to
customers based on the
visitor’s online behaviour
Legal Name: Google LLC
United States Pixel
Terms of Service
Matt Brown Media (Pty) Ltd t/a Digital Kungfu
Reg. No.: 2016/490938/07 | VAT No.: 4860 278 979
T: +27(0)11 593 3249 | firstname.lastname@example.org | www.digitalkungfu.com
2 Addo Road, Morningside