- Your use of the Website as of the Effective Date will signify your acceptance of, and agreement to, this SLA. We may modify this SLA without giving prior notice to you. Any revisions to this SLA will take effect when such revisions are posted on the Website, unless otherwise stated in the revised SLA. Please attend to checking the Delvv Website often for such updates. Capitalised terms not defined in this SLA are defined in the Terms of Service.
- In this SLA, unless the context indicates otherwise:
- the singular includes the plural and vice versa;
- any reference to one gender includes the other gender;
- a reference to a natural person includes their personal representatives, successors and permitted assigns, and a reference to a company includes its successors and permitted assigns;
- a reference to Delvv includes its associates, and related entities, or other entity forming part of Delvv;
- a reference to the Creative includes its associates, and related entities, or other entity forming part of the Creative.
- WHEREAS Delvv wishes to utilise the Creative to provide all or some of the Services required by the Projects posted by Clients on the Website or otherwise; and
- WHEREAS Delvv may disclose certain Confidential Information to the Creative, as defined below, in the tasking and other dealings in respect of a Project; and
- WHEREAS Delvv and/or the Clients require the cession, and or retention, of any and all intellectual property developed by the Creative during the tenancy of any Project;
- THEREFORE, the Parties wish to record the above terms in this SLA.
- “Agency” means an entity that offers a combination, or any element of, creative strategy, design, technology and advertising services on behalf of it clients;
- “Clients” mean the entities or person which/who has submitted the Project to Delvv, and which requires the Services to be rendered by the Creative. Client shall have a corresponding meaning;
- “Confidential Information” means:
- all information relating to or incidental to any Project which is provided, obtained or accessed, whether in writing, pictorially, in machine readable (software) form or orally or by observation during the Creative’s works and attendances, in connection with any Project including but without limitation, Delvv’s and/or the Clients’ project designs, marketing material, financial information, know-how, processes, ideas, trade secrets, technology, customer lists (potential or actual), sales and relationship notes, customer calendars, and other customer-related information, supplier information, sales and ordering statistics (whether historical or pending), market intelligence, contracts, other marketing, information technology processes or systems, and other business strategies and other commercial information of a confidential nature of Delvv and/or the Clients and associates; and
- this SLA and the fact that the tasking and dealings with the Creative in respect of any Projects are taking (and in the event of termination, have taken) place and the content of the tasking and dealings with the Creative; but
- does not include information which is or becomes publicly available, other than as a result of a breach of this SLA, or becomes lawfully available to either Party from a third party free from any confidentiality restriction or any information required to be disclosed under any relevant law or any binding judgment or order of court.
- “Declaration” means the declaration made by the Creative in writing on a per Project basis pursuant to clause 5 herein;
- “Intellectual Property” means, but shall not be limited to, software (including object and/or source code), underlying data, artistic or other work authored or produced by the Creative rendering the Services and embodied in the drawings, renderings, written text, graphic designs, trademarks, trade names, registered designs, service marks, patent rights, trade secrets, know how or other industrial or intellectual property rights;
- “Moral Rights” mean the Creative’s rights to claim authorship of the Project IP and to object to any distortion, mutilation or other modification of the Project IP which would be prejudicial to its/his/her honour or reputation;
- “Project IP” means any and all Intellectual Property created as a result of the Services being rendered in accordance with, or in relation to, a Project;
- “Parties” mean collectively Delvv and the Creative. Party shall refer to either Delvv or the Creative according to the context.;
- “Project” means the creative brief, which has been submitted to Delvv, through the website located at www.delvv.io or otherwise received, in respect of which, the Creative is required to render the Services to a Client. Projects shall have a corresponding meaning;
- “Services” means the creative and/or research services as required by each Project.
- “SLA” means this Agreement;
- “Website” means the website located at www.delvv.io.
- In order to become a Creative of Delvv, a prospective candidate is required to provide all required individual and/or business information to Delvv.
- Admission as a Creative is [K1] run, regulated and organised in the sole and absolute discretion of Delvv. Delvv explicitly reserves its rights to amend the conditions of Creative membership, to terminate, cancel or suspend any Creative membership.
- In the event that Delvv exercises its right to cancel or suspend a membership at any time.
- Delvv reserves the right to change our requirements for Creative membership at any time.
- Delvv will require, in respect of each Project, a written confirmation from the Creative that the Creative is not conflicted to render the Services in respect of a given Project;
- In order to satisfy itself of compliance with clauses 5.1 above, Delvv shall be entitled to call upon such documentation which it may reasonably require for inspection, in addition to a list of clients to which comparable services have been rendered to by the Creative in the past 6 (six) months.
6.nature of the relationSHIP:
- It is specifically agreed that:
- this SLA is not a contract of employment, but an agreement between 2 (two) independent parties for the provision of Services in accordance with the requirements pertaining to the Projects; and
- the Creative is not an employee of Delvv, and any termination of this SLA, for whatsoever reason, shall not constitute unfair dismissal, nor shall the Creative be entitled to the payment of any redundancy or other compensatory payments on occurrence of such termination by virtue of any relief in terms of the laws regulating employment relationships which may find application.
- The Creative shall not be entitled to any employee fringe benefits of any nature whatsoever including, without limitations, leave pay, medical aid, sick leave, or pension contributions.
- Furthermore, it is acknowledged by the Creative that neither the Creative nor any of the Creative’s employees (where applicable) will have the authority to bind Delvv to any agreement of any nature whatsoever, nor may the Creative or his/her/its employees describe themselves in any way, directly or indirectly, as a being an employee, agent or representative of Delvv.
- The Creative acknowledges and agrees that the continual or intermittent nature of this SLA does not give rise to the doctrine of legitimate expectation, and even where Delvv makes regular use of the Creative’s Services, subject to the termination provisions as contained herein, Delvv is not obliged to continue to make use of the Creative’s work.
- It is specifically recorded that the intention of the parties is not to create a master and servant relationship or an indefinite term of employment as between the Parties, but rather an agreement that constitutes the letting and hiring of work as between the Parties, in addition to the assignment to Delvv of the Project IP.
7.obligations WHEN performing the services:
- The Creative agrees that the Creative will be bound to, and comply with, the following guidelines when effecting the Services required by each Project:
- The Services shall be rendered to the best of the Creative’s ability;
- The Creative agrees to operate in accordance with the requirements of the Project;
- The Creative agrees that without the prior written consent of Delvv, the Creative, or any of the Creative’s employees (where applicable), will not, directly or indirectly, engage in any activities, which could detract from the proper performance of the Services in terms of this SLA or which may result, directly or indirectly, in a conflict of interest between the Creative and Delvv or one of Delvv’s Retailers.
- The Creative agrees to display a high duty of care and good faith in the performance of the Services. The Creative agrees to strive for a standard of excellence in as far as his/her Services are concerned, and the Creative hereby expressly represents to Delvv that he is qualified and experienced to do so.
- The Creative acknowledges that, since the Distributor is not an employee of Delvv, the Creative or any of the Creative’s employees (where applicable) are not covered by any insurance policies taken out by Delvv.
- The Creative shall obtain a written undertaking from each of his employees (if applicable) whereby that employee agrees to be bound by the terms of this SLA and to carry out the Services in terms of this SLA.
8.INDEMNITIES AND liability
- The Creative hereby indemnifies and holds Delvv harmless against all claims, demands, fines, penalties, actions, injury to person or property, proceedings, judgements, damages, losses, costs, expenses, or other liabilities of whatsoever nature caused, whether negligently or otherwise, whether arising at common law or by statute, by the Creative or the Creative’s employees (where applicable) or suffered by Delvv, arising out of actions by the Creative or the Creative’s employees (where applicable) as a result of the provision of the Services.
- The Creative acknowledges that neither the Creative nor any of the Creative’s employees or any estate, heir, successor, partner or business associates (claimants), will have any claim of whatsoever nature against Delvv or any of the Delvv’s employees, shareholders, directors or successors in title arising out of any injury or damages of whatsoever nature which the claimants may sustain.
- It is your responsibility to determine what, if any, taxes apply to the payments you make or receive, and it is your responsibility to collect, report and remit the correct tax to the appropriate tax authority.
- Delvv is not responsible for determining whether taxes apply to your transaction, or for collecting, reporting or remitting any taxes arising from any transaction.
11.duration of agreement and terms herein
11.1 This SLA shall remain in effect for a period of 6 (six) years (subject to a 1 (one) year extension should the parties still be discussing and/or considering the Project at the end of the sixth year). Notwithstanding the foregoing, the parties’ duty to hold in confidence Confidential Information, as canvassed below, that was disclosed during the term of this SLA shall remain in effect indefinitely.
12.breach and termination
- If the Creative commits a breach of this SLA and fails to remedy such breach within 5 (days) of receipt of written notice requiring the breach to be remedied, then the Delvv shall be entitled, at its option, either to cancel this SLA and claim damages or, alternatively, to claim specific performance of all the Creative’s obligations, together with damages, if any, whether or not such obligations have fallen due for performance.
- Notwithstanding what has been set out in clause 12 above, Delvv may, for any reason whatsoever, terminate this SLA with immediate effect with no notice being required[K3] .
- The Creative may, for any reason whatsoever, terminate this SLA on 7 (seven) days’ written notice to that effect.
13.terms of Disclosure OF confidential information
- In consideration of the Parties’ relationship, the confidentiality undertaking that Delvv has, will, in turn, provide to the Clients, and any access that the Creative may have to the Confidential Information of Delvv and/or the Clients, the Creative agrees to the following terms and conditions:
- That the Creative shall use the Confidential Information only for the Purposes of the specific Project to which the Confidential Information relates. The Creative shall treat the Confidential Information with at least the same degree of care and protection as it would use with respect to its own confidential information.
- That the Creative shall not disclose any of the Confidential Information to any person, nor shall it use the Confidential Information for any purpose other than the Project to which the Confidential Information relates, and except to the extent required by law, without the prior written consent of Delvv. The Creative will not utilise in any way, either Delvv’s or the Clients’ project designs, job specific tenders, marketing material, including but not limited to Delvv’s or any Client’s brand, or any material related to their products and/or services, for advertising or utilisation to external clients and third parties, without prior written consent from Delvv.
- The Creative shall not copy or reproduce in any way (including without limitation, store in any computer or electronic system) any Confidential Information or any documents containing Confidential Information without the prior written consent of Delvv.
- The Creative does not acquire any intellectual property rights through any disclosure hereunder, except the limited right to use such information in accordance with this SLA. No warranties of any kind are given with respect to the Confidential Information disclosed under this SLA or any use thereof, except as may be otherwise agreed to in writing.
- The Creative agrees not to contact any parties introduced to it by Delvv who would not otherwise have been introduced to the Creative, in respect of any Project or similar undertaking, without the prior written consent of Delvv.
- The Creative will notify Delvv in writing immediately upon the occurrence of any unauthorised release or other breach of this SLA.
- The Creative shall take all necessary steps and precautions to protect the Confidential Information against any unauthorised access and not to divulge any such Confidential Information or any information derived from any Project to any third person.
- The Creative shall limit the use of and access to information to only those employees of the Creative which are involved in discussions or work relating to the Project, and shall cause such employees to comply with the obligations set forth herein.
- The Creative shall immediately, upon request by Delvv, deliver to Delvv all material, including all copies (if any) made, which comprise any Confidential Information.
- The Creative shall not, without the consent of Delvv, disclose to any person that any works, tasking, or other dealings have taken or are taking place concerning any Project, nor that the Creative has requested or received any Confidential Information in relation to the Project.
- The Creative hereby expressly represents and warrants that:
- the Project IP is original and its making does not constitute an infringement of any Intellectual Property right;
- original Intellectual Property rights subsist in the Project IP; and
- the Creative is the owner of any and all Intellectual Property rights, without encumbrance, in and to the Project IP, at the date of submission to Delvv, and that the Creative has not assigned, ceded, transferred or made over any Intellectual Property rights or Rights of Use, to any other party.
- The Creative agrees that the Creative is hereby ceding, assigning or otherwise making over to Delvv, all Intellectual Property rights in respect of any and all Project IP of which the Creative, or any of the Creative’s employees (where applicable), will be the author, joint author, commissioner, or otherwise creator thereof, and which is directly or indirectly the product of the Creative’s Services rendered in terms of the Project. All such Project IP shall be deemed to have been written, produced or otherwise created by the Creative, or any of the Creative’s employees (where applicable) while in the course and scope of the Creative Services to Delvv unless prior written approval to the contrary is obtained from Delvv.
- The Creative hereby agrees to disclose to Delvv all such Project IP and deliver to Delvv all documents and other materials relating to such works.
- The Creative hereby agrees to disclose, as and when created, to Delvv all such matter and deliver to Delvv all documents and other materials relating to such Project IP.
- The Creative, and/or the Creative’s employees (where applicable) hereby waive, in favour of Delvv, or Delvv’s successor in title, any Moral Rights which may vest in the Project IP.
- To the extent that this Agreement is in any manner insufficient, the Creative agrees, at the request and expense of Delvv, to do all such things and sign all such documents reasonably necessary to confirm or vest in Delvv the rights assigned or otherwise transferred to Delvv under this SLA and to the extent that the Creative fails to do any such thing, then a Delvv representative is hereby authorised, as the Creative’s duly appointed representative, to do such things and to sign such documents necessary for the purpose of confirming and vesting the rights referred to in clause 14.
- The Creatives agree that Delvv has invested significant time, money and effort developing the Delvv service offering, accordingly, the Creative agrees to abide by the following terms and conditions:
15.intellectual property protection
- The Creative acknowledges and agrees that Delvv products, services, trademarks, designs, or other Intellectual Property and all related documents and information, not forming the Project IP, are the Intellectual Property of Delvv, alternatively, that of the Clients. Furthermore, the Creative agrees to take all reasonable precautions to protect and keep confidential Delvv and Client Intellectual Property in the course of its business, except to the extent required by the Creative to give effect to the commercial objectives of the Project to which the Intellectual Property pertains.
- The Creative irrevocably agrees not to attempt to circumvent, avoid or bypass Delvv, directly or indirectly for the purpose of avoiding payment of fees or commissions, or otherwise, individually, by way of any corporation, trust, partnership or other entity, or in conjunction with transaction or transactions of business involving said the Creative and any Client;
- It is understood that, without the previous written consent Delvv, the Creative will not enter, either directly or indirectly, into any discussions, solicit or accept offers, enter into any agreements, conduct negotiations with or otherwise engage in any other independent communications with:
- any third party to whom the Creative was introduced to by any member, shareholder, officer, director, employee, agent, or other representative of Delvv or any Client as the case may be;
- any third party to whom the Creative was “informed of” by any member, shareholder, officer, director, employee, agent, or other representative of Delvv or the Client as the case may be; or
- any employee, financial partner, investor, contractor, consultant or other business partner of Delvv or the Client.
- The obligation conferred in terms of clause 16.2, shall subsist for a period of 12 months after the termination of this SLA.
- The Creative agrees that it will not make any contact, deal, or otherwise be involved with the Clients of Delvv, unless otherwise authorised by Delvv.
- No attempt, or suggestion of circumvention, will be permitted by Delvv, and the Creative agrees and understands that any overt, or covert act in circumvention shall constitute a fraudulent act against Delvv, and will be subject to judicial action, recompense for damages, possible punitive damages and interdictory relief.
- The Creative further agrees not to circumvent this SLA through the use of any subterfuge involving any third parties.
- It is further understood that where the Creative contravenes the integrity of this non-circumvention provision, it shall:
- Identify fully, and pay over all commissions, fees, or monies obtained by the Creative as a result of such circumvention directly or indirectly, to Delvv; and
- Indemnify and be liable for all legal fees for Delvv, which may be incurred in the course of adjudication of said violation;
17.Domicilium Citandi Et Executandi and Contact Information
- The Parties choose as their respective domicilium citandi et executandi for the purpose of legal proceedings and for the purpose of giving or sending any notice provided for or necessary of this SLA, the following:
- Delvv: 44 Stanley, Office G3B, Johannesburg, facsimile number : (XXX[K4] ) XXX; email : XXX[K5] ;
- Creative: The address and contact details as reflected upon signing up to the Website.[K6]
- A Party may change its domicilium to any other physical address, fax number or email address by written notice to the other party to that effect. Such change of address will be effective 7 (Seven) days after receipt of notice of change of domicilium.
- All notices to be given in terms of this SLA will:
- be given in writing;
- be delivered or sent by email; and
- be presumed to have been received on the date of delivery.
- Notwithstanding the above, any notice actually received by the Party to whom notice is addressed will be deemed to have been properly given and received, notwithstanding that such notice has not been given in accordance with the provisions of this clause.
18.DISPUTE, applicable law and jurisdiction
- This SLA and the relationship between the parties hereto shall be regulated entirely by the laws of the Republic of South Africa.
- Every attempt shall be made to resolve any dispute arising from intended or inadvertent violation of this SLA, as informally as possible. If informal resolution between the parties cannot be achieved, the process shall be referred for resolution to an arbitration tribunal in accordance with the rules of the Arbitration Foundation of Southern Africa, to be decided upon in the Republic of South Africa.
- Notwithstanding the above, at Delvv’s sole and exclusive discretion, it may submit any dispute for adjudication, falling with in such jurisdiction, to the Randburg Magistrate’s Court, or if beyond such jurisdiction, the South Gauteng High Court.[K7]
- No failure or delay by either Party in exercising or enforcing any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise or enforcement of any right, remedy or power preclude any further exercise or enforcement thereof or the exercise or enforcement of any other right, remedy or power.
- Save for as otherwise stipulated herein, this SLA supersedes all prior discussions and writings with respect to the subject matter hereof, and constitutes the entire agreement between the Parties, read with any Project specific agreements, with respect to the subject matter hereof.
- No waiver, modification or variation of this SLA will be binding upon either Party unless made in writing and signed by a duly authorised representative of each Party and no failure or delay in enforcing any right will be deemed a waiver.
- This SLA shall be legally binding on the Parties hereto, their principals, employees, representatives, agents, assignees and all other business associates now, or in the future, in all countries around the world.
- If any clause of this SLA is found by a court of law to be unlawful, or unenforceable, the SLA shall be interpreted as though that clause did not form part of the SLA. Under such circumstances the Parties shall re-negotiate the offending clause to confirm with their intent and the law.
- This SLA shall inure to the benefits of the heirs, assigns and successors of the Parties hereto.
20 Previous AGREEMENTS
20.1 The Parties acknowledge and agree that this SLA in no way limits, or operates as a waiver of any rights that Delvv may have against the Creative in respect of any previous agreement with the Creative.