This website is made available to you by us conditional upon your acceptance, without modification, of the terms of this agreement, and all services supplied by Flume Communications (Pty) Ltd registration number 2012/213644/07 (“the Company”).
Your access to and use of this website constitutes your agreement to and acceptance of this agreement. If you do not agree with any provision contained in this agreement, please do not use this website.
No term or provision contained in this agreement is to be interpreted or construed so as to exclude any rights granted by Chapter VII of the Electronic Communications and Transactions Act 25 of 2002 to any natural person who enters or intends entering into an electronic transaction with us on this website.
We reserve the right, in our sole discretion, to amend (including without limitation, by the addition of new terms and conditions) this agreement at any time and from time to time without notice to you.
Any such amendments shall come into effect immediately and automatically. You agree to review this agreement whenever you visit the website for any such amendments.
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” means the Party accessing the Website and/or receiving or to receive services from the Company;
2.4.2 “The Company’s Associates” means the Company’s officers, servants, agents or contractors or any other persons in respect of whose actions the Company may be held to be vicariously liable;
2.4.3 “Parties” means the Company and the Client;
2.4.4 “Services” means strategy, design, digital and community management, advertising and brand partnerships, as proposed and/or rendered by the Company to the Client;
2.4.5 “Transactional Document” means any cost estimate, quotation, order, scope of work, document, proposal or correspondence from the Company to the Client describing the Services proposed or actually rendered by the Company to the Client;
2.4.6 “Website” means www.flume.co.za;
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 the 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 “business hours” shall be construed as being the hours between 08h30 (eight hundred hours and thirty minutes) and 17h00 (seventeen hundred hours) on any Business Day. 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.
3.1 This Agreement governs all and any access to the Website, and in the absence of a signed MSA, any Services provided by the Company. The operation of these terms and conditions may only be amended by the Company 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.
4. Appointment and Duration
4.1 This Agreement commences once there has been access to the Website or engagement between the Company and the Client.
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.
5. The Services
5.1 The Company offers, amongst others the following services: web development, digital and communication strategies, content creation, community management, public relations, media buying, animation, social media filters and illustrative design Technical Consultation;
5.2 The Company shall render such Services as agreed between the Parties in a Transactional Document.
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 the Company to render all such Services as a single, indivisible service.
6. Service Levels
The Company 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.
7.1 The Client shall, as consideration for the Services to be rendered by the Company in terms of this Agreement, effect payment to the Company of fees at the rates set out in the Transactional Document.
7.2 The Company shall provide the Client with the Transactional Document, in advance, for all Services to be performed by the Company as set out in same.
7.3 The Client shall pay the fees, to the Company, in the amounts and on the terms stated in the Company’s interim and final invoices issued to the Client from time to time. In the event that the Company’s invoices do not state the Company’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 a rate to be confirmed in writing by the Company prior to the increase, per annum on the 1st of January of every year.
7.5 In the event of the Client failing to timeously effect payment of any amount due to the Company in terms of this Agreement, the Company 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 2% per month.
7.6 The Company 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 the Company’s expenses in recovering any amounts the Client owes the Company, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
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 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”) for the Bank to take informed decisions regarding that Party, provided that such Party shall use its reasonable endeavors to procure that the Bank shall keep such information confidential.
9. Protection of Personal Information
9.1. The Company shall:
9.1.1. only process Personal Information (as defined in the PAI Act) in accordance with applicable laws, in terms of this Agreement and in accordance with any instructions, requirements or specific directions of the Information Officer (as defined in the PAI Act);
9.1.2. The Company 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 the Company 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 organizational 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 the Company;
9.1.7. generally accepted information security practices and procedures which apply to the Company’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 organizational 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. The Company shall assist the Client to comply with any requests for access to Personal Information received by the Client from Data Subjects (as defined in the PAI Act) and, at the request of the Client, the Company shall promptly provide the Client with a copy of any Personal Information held by the Company in relation to a specified Data Subject. The Company agrees that notwithstanding the confidentiality provisions of this Agreement, the Client may disclose to a Data Subject that the Company has been or is involved in Processing (as defined in the PAI Act) such Data Subject’s Personal Information;
9.3. The Company 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 (as defined in the PAI Act) to the Company.
9.4. The Company 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 Company is entitled to undertake in accordance with the Client’s instructions) without the express prior written consent of the Information Officer, save that the Company may carry out reasonable further Processing strictly in order to comply with an obligation which is imposed on it by law.
10. Prohibition on Solicitation or Interference
10.1 The Client shall not solicit, offer work to, or contract with, whether as a partner, employee or independent contractor, directly or indirectly, any of the Company’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 The Client shall not 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 Company to terminate his employment with the Company 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 Company.
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.
11.1 To the fullest extent permissible by law, the Company disclaims all warranties of any kind, whether express or implied in respect of the Services, and the Client utilizes the Services at its own risk.
11.2 The Client agrees that the Company is unable to, and is not required to guarantee a particular result or set of results.
11.3 The Client agrees that neither the Company nor the Company’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 In the event that the Company is found to be liable to the Client for a particular act or omission then the Company’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.
12.1 The Client hereby indemnifies the Company and the Company’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, willful misconduct and/or gross negligence.
12.2 The Client indemnifies and shall keep the Company indemnified against any claim for infringement of intellectual property rights in connection with any information supplied by the Client to the Company and against any and all costs, expenses and damages which the Company may incur or become liable for as a result of such infringement.
12.3 The Company shall give the Client prompt notice in writing of any claim being made or action threatened or brought against the Company 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.
12.4 The Client accepts and understands that they are required to approve all works prior to publication or printing. The Client indemnifies the Company for the approval of any works that it has approved which subsequently may not be correct or not to the Client’s standards.
13.1 This Agreement applies to all engagements with the Company and/or Services performed by the Company.
13.2 The Client may terminate this Agreement, or any particular Services, upon written notice giving 2 (two) months notice of intended cancellation of the Services.
13.3 The Client shall pay the Company for all work-in-progress, Services already performed, and expenses incurred by the Company up to and including the effective date of the termination of this Agreement.
13.4 The respective confidentiality and prohibition on solicitation obligations under this Agreement shall continue for a period of 2 (two) years following the termination of this Agreement. The other provisions of this Agreement that give either Party rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement.
14. Force Majeure
14.1 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.
14.2 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.
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 Party.
16. The Web Site
16.1.1 The Company Website is the registered property of the Company.
16.1.3 The Company 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.
16.1.4 Nothing on the Website shall be construed as an offer by the Company to you, the user, but merely an invitation to do business.
16.1.5 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. The Company reserves the right to remove or edit such content in its sole discretion.
16.1.6 You hereby represent and warrant that you own or otherwise control all 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 the Company or its affiliates from all and any claims resulting from content you supply to the Company. The Company shall not be held responsible or liable for any content posted on the Company Websites.
16.2 Intellectual Property
16.2.1 All content on the Website (unless explicitly stated), and any work submitted to clients or potential clients, including but not limited to, text, graphics, logos, button icons, images, clips, digital downloads, data compilations, and software, is the property of the Company or licensed to the Company and as such, is protected from infringement by domestic and international laws, legislation and treaties. The Company expressly reserves all rights pertaining to such content.
16.2.2 The Company 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.
16.2.3 All content, trademarks and data on this web site and any work submitted to clients or potential clients, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or are licensed to the Company, and as such are protected from infringement by domestic and international laws, legislation and treaties.
16.2.4 “The Company” and other marks indicated on the Company Website are the trademarks or trade dress of the Company. These and other Company graphics, logos, page headers, button icons, scripts, product and service names are trademarks or trade dress of the Company.
16.2.5 The Company trademarks and trade dress may not be used in connection with any product or service without the written consent of the Company.
16.2.6 The Company 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 the Company.
16.2.7 All other trademarks not owned by the Company 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 the Company.
16.2.8. The Company may use your name and/or logo and/or works publicly to identify you as a client, and hereby consent to the use of your name and/or logo and/or works being displayed on the Website.
16.3 Licenses And Web Site Access
16.3.1 The Company 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 the Company. You are expressly prohibited from modifying any portion of this Website, whether in part or whole, except with the express written consent of the Company.
16.3.2 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.
16.3.3 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 the Company and/or our affiliates without its express written consent.
16.3.4 It is expressly prohibited to use any meta tags or any other “hidden text” utilizing the Company’s name or trademarks without the express written consent of the Company.
16.3.5 Any unauthorized use of this web site, its content or applications terminates the permission or license granted by the Company. You are granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page of the Company provided the link does not portray the Company, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner.
16.3.6 You may not use any the Company logo or other proprietary graphic, trademark, or material as part of the link without express written permission from the Company.
16.4 Disclosures Required By Section 43 Of The South African Electronic Communications And Transactions Act (ECTA):
16.4.1 The full name and legal status of the web site owner is: Flume Communications (Pty) Ltd registration number 2012/213644/07
16.4.2 The full address of the website owner is: 68 Hobart Road, Bryanston, Gauteng, South Africa.
16.4.3 Members: Ruaan Oosthuizen, Jacques De Bruyn.
16.4.4 Physical address for receipt of legal service: 68 Hobart Road, Bryanston, Gauteng, South Africa.
16.5 Disclaimer of Warranties and Limitation of Liability:
Subject to the provisions of sections 43(5) and 43(6) of the ECTA, the Company 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, the Company 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.
17.1 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 –
17.1.1 cancel this Agreement, provided the breach in question is a material breach going to the root of this Agreement; or
17.1.2 claim specific performance of all the Offending Party’s obligations whether due for performance or not,
17.1.3 in either event without prejudice to the Aggrieved Party’s right to claim damages.
17.2 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.
18. Governing Law
These terms and conditions shall be governed and interpreted in accordance with the laws of the Republic of South Africa.
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.
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.
21. Domicilium And Notices
21.1 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:
21.1.1 The Company – 68 Hobart Road, Bryanston, Gauteng, South Africa.
21.1.2 The Client – as stated in Transactional Document.
21.2 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.
21.3 Any notice given by either party to the other (“the Addressee”) which:
21.3.1 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;
21.3.2 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.
21.3.3 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.
22.1 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.
22.2 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.
22.3 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.
22.4 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.
22.5 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.
23. ACCEPTANCE BY YOU OF THESE TERMS AND CONDITIONS SHALL BE DEEMED TO HAVE TAKEN PLACE IN THE EVENT THAT THE CLIENT ENGAGES WITH THE COMPANY 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.