PART B: SERVICES TO BE PROVIDED TO THE CLIENT BY ROIKINGS
Roikings will provide the following Services to the Client in terms of this Agreement:
BY SELECTING “I ACCEPT”, “I AGREE”, “OK”, “CONTINUE”, “YES” OR BY INSTALLING OR USING OUR SERVICES IN ANY WAY, YOU ARE INDICATING YOUR COMPLETE UNDERSTANDING AND ACCEPTANCE OF THE TERMS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS DO NOT INSTALL OR ACCESS THE SOFTWARE OR OTHERWISE INDICATE REFUSAL, MAKE NO FURTHER USE OF THE SOFTWARE
By using the roikings.services, roikings.io web site (“Service” or “Software” owned by Roikings) you are agreeing to be bound by the following terms and conditions (“Terms of Service”).
We reserves the right to update and change the Terms of Service from time to time without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Software after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: https://www.roikings.services
Violation of any of the terms below will result in the termination of your Account. You agree to use the Software at your own risk.
You must be 13 years or older to use this Software. If you are less than 18 years of age, you cannot use the Roikings Services without the consent of your parent or guardian, who agrees, on your behalf, that you will comply with the Terms of Service.
You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
You must provide your legal full name, a valid email address, and any other information requested in order to complete the signup process.
Your login may only be used by one person – a single login shared by multiple people is not permitted. You may create separate logins for as many people as your plan allows.
You are responsible for maintaining the security of your account and password. We cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
You are responsible for all Content posted and activity that occurs under your account (even when Content is posted by others who have accounts under your account).
One person or legal entity may not maintain more than one account.
You may not use the Software for any illegal or unauthorized purpose. You must not, in the use of the Software, violate any laws in your jurisdiction (including but not limited to copyright laws).
Payment, Refunds, Upgrading and Downgrading Terms
A valid credit card or PayPal account is required for paying accounts.
The Software is billed in advance on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
For any upgrade or downgrade in plan level, your credit card that you provided will automatically be charged the new rate on your next billing cycle.
Downgrading your Service may cause the loss of Content, features, or capacity of your Account. We do not accept any liability for such loss.
Cancellation and Termination
You are solely responsible for properly cancelling your account. An email or phone request to cancel your account is not considered cancellation. You can cancel your account at any time by clicking on provided cancellation link within your account.
If you cancel the Service before the end of your current paid up month, your cancellation will take effect immediately and you will not be charged again.
Roikings, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Software, or any other Roikings service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. Roikings reserves the right to refuse service to anyone for any reason at any time.
Modifications to the Service and Prices
Roikings reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice.
Prices of all Services, including but not limited to monthly subscription plan fees to the Software, are subject to change. Such notice may be provided at any time by posting the changes to the Roikings (Roikings.io) or the Software itself.
Roikings shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
1. Copywriting for all campaigns
1.1. New scripts are developed for each outreach service provided.
1.2. Notes and exclusions:
1.2.1. Social media scripts development are subject to 1 intro message and a follow up.
1.2.2. Email outreach scripts campaigns are subject to 1 intro message and 3 follow ups. Each script will also have a new subject-line.
2. Social Media Campaigns
2.1. Notes and exclusions:
2.1.1. We recommend that new Social Media accounts needs to be created for outreach by the Client. Roikings will not be held responsible for any Social Media accounts getting blocked or any limitations caused to any accounts during outreach or for any reason whatsoever. The new suggested accounts are created as a safety measure. No logins are permitted by the Client due to IP trackers during the duration of the Agreement. New Social Media accounts will also be registered for alternative platforms to protect the client’s original accounts if requested.
2.1.2. Outreach campaigns are limited to the package selected in A6 per month. The prospect criteria will be changed to the availability of prospects in the geographical area or on limitations in a specific industry or field requested by the client.
2.1.3. Roikings may create a logo reveal for the clients company logo. This logo video may be used or reused for other clients except for the clients company logo.
2.1.4. All Social Media adverts will be limited to a total maximum spending of $0.00 USD for all platforms combined. The spending could be less depending on the amount of impressions received and if Roikings want to invest into advertising at the time.
2.1.5. All content posted will be subject to approval by the client.
2.1.6. Landing pages may be requested at an additional cost to the client.
3. Weekly reports on statistics and pipeline
3.1. Weekly reports will be given to the Client on the Roikings dashboard to deliver the success rate of the campaign.
3.2. Notes and exclusions:
3.2.1. Only one call per month will be held unless requested otherwise.
4. Prospect Appointment Setting
4.1. All positive responses to the campaign will be contacted within 48 hours.
4.2. All calls will be booked with a 3rd party software and will be setup on the new domain’s email address.
4.3. Notes and exclusions:
4.3.1. All calls booked must be transparent as well as all deals made.
5. Outreach Services & Software
Roikings use third party service providers for the provision of some or all of its Services. All accounts set up with these third party service providers will be set up in the name of the Client, for and on behalf of the Client.
On concluding this Agreement, and before setting up the third party service provider accounts, Roikings will not provide the Client with the details of the third party service providers to be used to protect the company’s trading methods. The Client acknowledges that the use of these third party service provider accounts is required in order to provide it with Outreach Services, and it agrees to be bound by and accept the provisions of all these third party service provider’s terms and conditions and privacy notices.
The client warrants that he is the legal owner of the device and he have all the legal rights to create his account.
The client must accept and allow any permissions required by the supported Social Media Platforms to use the Roikings services.
The client is responsible for maintaining the security of all his Social Media accounts and passwords. Roikings cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
PART C: AGREEMENT TERMS
1.1 Roikings is an outsourced, International Business to Business (“B2B”) sales and lead generation business that assists companies in soliciting, marketing, and selling their products and/or services to prospects and customers.
1.2 The Client wishes to appoint Roikings to render the Services, as more fully described in Part B: Services to be provided to the Client by Roikings above, and Roikings accepts such appointment.
1.3 The Parties have agreed to the terms and conditions on which Roikings will render the Services, which are set out below.
2 DEFINITIONS AND INTERPRETATION
2.1 In this Agreement, unless the context indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings:
2.1.1 “Agreement” means this Agreement (Part A, Part B and this Part C) and any annexure(s) or addenda attached hereto;
2.1.2 “Client” means the company referred to in A1 of Part A: Agreement Schedule;
2.1.3 “Commencement Date” means notwithstanding the Signature Date, the date set out in A2 of Part A: Agreement Schedule;
2.1.4 “Contract Duration” means the duration of this Agreement, as agreed by the Parties and set out in A3 of Part A: Agreement Schedule;
2.1.5 “Data Controller” will have the meaning ascribed to the term “Responsible Party” in PoPIA, as amended from time to time;
2.1.6 “Data Privacy Laws” means any and all applicable Laws relating to the privacy and protection of Personal Information, including but not limited to PoPIA, as amended from time to time;
2.1.7 “Data Processor” will have the meaning ascribed to the term “Operator” in PoPIA, as amended from time to time;
2.1.8 “Fixed Monthly Fee” means the fixed monthly fee billed by Roikings to the Client for the provision of the Services, as set out in A4 of Part A: Agreement Schedule;
2.1.9 “Intellectual Property” means all patents, registered and unregistered trademarks, trading names, logos, brands, service marks, copyright, designs and applications for any of the aforegoing in any part of the world, and any know-how, trade secrets and data associated with any of the aforegoing owned by either Party and used in or in connection with the provision of the Services;
2.1.10 “Laws” means any and all applicable laws, regulations, by-laws, rules, directives, orders, codes of practice and other requirements of any government or any government agency, body or authority, or any regulator or court, of the country in which Roikings is domiciled and registered and, where applicable, in any other country in which this Agreement be effective between the Parties;
2.1.11 “Parties” means the Client and Roikings and “Party” means either one of the Parties, as the context requires;
2.1.12 “Personal Information” means personal information as defined and protected under PoPIA and any other applicable Data Privacy Laws, including but not limited to Prospect Data collected and Processed by Roikings for and on behalf of the Client;
2.1.13 “PoPIA” means the Protection of Personal Information Act, No 4 of 2013, of the Republic of South Africa;
2.1.14 “Process” or “Processing” will have the meaning as ascribed to the term in PoPIA, as amended from time to time;
2.1.15 “Prospect Data” means all data and information, including Personal Information, of prospects and existing customers of the Client, collected and/or Processed by Roikings on behalf of the Client in providing the Services to the Client;
2.1.16 “Services” means the provision of lead generation, marketing and sales services by Roikings to the Client, as set out more specifically in Part B: Services to be provided to the Client by Roikings, in accordance with the provisions of this Agreement;
2.1.17 “Signature Date” means the date of signature of this Agreement by the last Party signing;
2.1.18 “Roikings” means Roikings Proprietary Limited (Registration Number: 2013/143324/07), a private company with limited liability, duly incorporated, registered and domiciled in the Republic of South Africa, with its principal place of business situated at West Tower, 2nd Floor, Nelson Mandela Square, Maude Street, Sandown, Johannesburg, South Africa, 2146;
2.1.19 “VAT” means Value Added Tax, as defined in the Value-Added Tax Act, No 89 of 1991 of the Republic of South Africa.
2.2 In this Agreement:
2.2.1 clause headings are for convenience only and are not to be used in its interpretation;
2.2.2 an expression which denotes i) any gender includes the other genders, ii) a natural person includes a juristic person and vice versa; and iii) the singular includes the plural and vice versa.
2.3 Any substantive provision, conferring rights or imposing obligations on a Party and appearing in any of the definitions in this clause 2 or elsewhere in this Agreement, will be given effect to as if it were a substantive provision in the body of the Agreement.
2.4 Words and expressions defined in any clause will, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout this Agreement.
2.5 Defined terms appearing in this Agreement in title case will be given their meaning as defined, while the same terms appearing in lower case will be interpreted in accordance with their plain English meaning.
2.6 Reference to “days” will be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic of South Africa from time to time.
2.7 Where figures are referred to in numerals and in words, and there is any conflict between the two, the words will prevail, unless the context indicates a contrary intention.
2.8 No provision in this Agreement will be interpreted to the disadvantage of a Party due to that Party having or being deemed to have structured, drafted or introduced such provision.
2.9 The words “include” and “including” mean “include without limitation” and “including without limitation”. The use of the words “include” and “including” followed by a specific example or examples will not be construed as limiting the meaning of the general wording preceding it.
The Client hereby appoints Roikings to render the Services in accordance with the terms and conditions set out in this Agreement, and Roikings hereby accepts the appointment.
4.1 This Agreement will commence on the Commencement Date, and will run for the Contract Duration as set out in A3 of Part A: Agreement Schedule.
4.2 Where the Contract Duration is for a Fixed Period, this Agreement may be renewed or extended by the Parties. Any renewal or extension of the Contract Duration must be recorded in writing and signed by the Parties.
5.1 Roikings will provide the Services, as set out in Part B: Services to the Client.
6 ROIKINGS OBLIGATIONS
6.1 Roikings undertakes:
6.1.1 to provide the Services in accordance with the provisions of this Agreement, with due care and diligence, and in accordance with all applicable Laws relating to the performance of their obligations under this Agreement;
6.1.2 not use any employees of the Client or any materials referencing the Client or the Client’s products and/or services being marketed through the Services, without the Client’s approval;
6.1.3 not to make any representations or warranties relating to the Client’s products and/or services being marketed through the Services, without the Client’s approval;
6.1.4 not use any deceptive, illegal, misleading or unethical practices in performing the Services and not make any false or misleading representations regarding the Client and/or the Client’s products and/or services being marketed through the Services;
6.1.5 to only quote or market prices for the Client’s products and/or services which have been provided by the Client to Roikings.
6.2 Roikings will only be identified as an authorized marketing and sales agent of the Client in respect of the Client’s products and/or services that are being marketed through the Services, and will otherwise be identified as an independent business from the Client.
7 THE CLIENT’S OBLIGATIONS
7.1 The Client undertakes to:
7.1.1 timeously furnish Roikings with sufficient and correct information to allow it to carry out the Services in term of this Agreement;
7.1.2 comply with all applicable Laws relating to the Client’s performance of its obligations in terms of this Agreement;
7.1.3 pay for the Services timeously and when due, in accordance with the provisions of clause 8 below.
7.2 The Client will be solely responsible for:
7.2.1 the accuracy, quality, integrity and legality of all content used by Roikings in providing the Services for and on behalf of the Client;
7.2.2 any third party products and/or services used by it in connection with the content to be used for the Services;
7.2.3 all activities that occur within, through or as a result of its use of the Services, and the Client agrees that it will not use the Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including the violation of any third party privacy rights or other rights;
7.2.4 ensuring that any prospects provided to Roikings by the Client, for the purposes of the Services, have consented to receive correspondence from the Client.
7.3 The Client undertakes and warrants that it is the owner of, or has permission from the rightful owner of, all content that it provides to Roikings for or in connection with the Services (the “Content”), and the Client hereby grants Roikings a non-exclusive, royalty-free, transferable licence to use and display the Content as necessary to provide the Services.
7.4 The Client reserves the right to reject, for any or no reason, any orders solicited for or on behalf of the Client by Roikings. The Client further reserves the right to solicit orders directly from and sell directly to its customers or any other purchasers of its products and/or services which are being marketed through the Services.
8 FIXED MONTHLY FEE AND PAYMENT TERMS
8.1 With effect from the Commencement Date, the Client will pay Roikings the Fixed Monthly Fee, as set out in A4 of Part A: Agreement Schedule, for the Services.
8.2 The Fixed Monthly Fee recorded in this Agreement is exclusive of VAT (Value Added Tax). VAT will be invoiced and payable in addition to the Fixed Monthly Fee (where applicable).
8.3 Payment of the Fixed Monthly Fee must be made to Roikings monthly in advance, on or before the 1st (first) day of each month of this Agreement. Roikings reserves the right not to provide any Services to the Client until the Fixed Monthly Fee for the month has been received.
8.4 Payments must be made to Roikings by Electronic Funds Transfer (EFT) by using swift code or TransferWise. Proof of payment must be sent to firstname.lastname@example.org.
8.5 Payment for the Services is fixed and non-refundable.
8.6 The Fixed Monthly Fee will be fixed for the Fixed Term or the Initial Period of this Agreement (whichever is applicable to the Contract Duration). In the event that this Agreement is running on a month to month basis, the Fixed Monthly Fee may be increased by Roikings on 30 Calendar Days prior written notice to the Client.
8.7 Should any additional or out of scope services be provided by Roikings to the Client which fall outside of the Fixed Monthly Fee in terms of this Agreement, the Client will be liable for payment of these additional or out of scope services in addition to the Fixed Monthly Fee. Roikings will not provide any additional or out of scope services to the Client, without obtaining the Client’s prior written approval.
9.1 The Parties undertake that during the operation of, and after the expiration, termination or cancellation of, this Agreement for any reason, they will keep confidential:
9.1.1 any and all information which one Party (“Disclosing Party”) discloses or communicates to the other Party (“Recipient”) and which is stated to be or by its nature is intended to be confidential, proprietary or secret;
9.1.2 all data, reports, records and other information of any kind whatsoever developed or acquired by any Party in connection with this Agreement;
9.1.3 all other information of the same confidential nature concerning the business of the Disclosing Party which is disclosed to or which comes to the knowledge of the Recipient while it is engaged in negotiating the terms of this Agreement, during the operation of this Agreement or after its conclusion,
(herein defined as “Confidential Information”).
9.2 If a Recipient is uncertain about whether any information is to be treated as Confidential Information in terms of this clause 9, it will be obliged to treat it as such until written clearance is obtained from the Disclosing Party.
9.3 The Parties may not reveal or otherwise disclose any Confidential Information to any third party without the prior written consent of the other Party and must take all reasonable steps and precautions to ensure that the Confidential Information remains strictly confidential and secure and that any third party does not obtain access thereto or knowledge thereof.
9.4 The abovementioned restrictions do not apply to the disclosure of necessary Confidential Information to employees, agents, sub-contractors and third party service providers of Roikings in relation to the provision of the Services, provided that appropriate confidentiality undertakings are in place between Roikings and its employees, agents, sub-contractors and third party service providers prior to them obtaining such information.
9.5 The obligations of confidentiality placed on the Parties in terms of this clause 9 will cease to apply to the Recipient in respect of any Confidential Information which:
9.5.1 is or becomes generally available to the public other than by the negligence or default of the Recipient or by the breach of this Agreement by the Recipient;
9.5.2 the Disclosing Party confirms in writing has been disclosed on a non-confidential basis;
9.5.3 has lawfully become known by or come into the possession of the Recipient on a non-confidential basis from a source other than the Disclosing Party having the legal right to disclose same, provided that such knowledge or possession is evidenced by the written records of the Recipient existing at the Signature Date; or
9.5.4 is disclosed pursuant to a requirement or request by operation of law, regulation or court order, to the extent of compliance with such requirement or request only and not for any other purpose.
9.6 The Disclosing Party owns all rights, title and interest in and to all of its Confidential Information. Except as explicitly stated in this Agreement or otherwise agreed between the Parties in writing, the Recipient is not granted any licence or right of conveyance of the Confidential Information or any Intellectual Property or intangible rights therein. All rights, title and interest in and to the Confidential Information will remain solely with the Disclosing Party.
9.7 On termination of this Agreement, for any reason whatsoever, the Recipient will immediately cease using all of the Disclosing Party’s Confidential Information and, at the Disclosing Party’s discretion and election, on written request to the Recipient, either:
9.7.1 require that the Recipient immediately return to the Disclosing Party all of the Disclosing Party’s Confidential Information in its possession or under its control; or
9.7.2 require that the Recipient immediately destroy all of the Disclosing Party’s Confidential Information in its possession or under its control, by shredding, erasing or otherwise modifying the data to make it unreadable or indecipherable through any reasonable means;
and may, in addition, require that the Recipient furnish a written statement to the effect that on such return or destruction, it has not retained in its possession or under its control, either directly or indirectly, any such Confidential Information or material or any copies thereof; Provided that, in either instance, the Recipient shall be entitled to retain a record or copies of such Confidential Information that it is required or authorised to retain by Law.
10 INTELLECTUAL PROPERTY
10.1 All Intellectual Property owned by either Party at the Commencement Date will remain the property of that Party.
10.2 All Intellectual Property created or developed by either Party after the Commencement Date will belong to the Party so creating or developing it, unless otherwise agreed between the Parties in writing.
10.3 In the event of the termination of this Agreement, the Parties will return any form of Intellectual Property to the owner of such Intellectual Property and will refrain from using and/or copying such Intellectual Property from that point onwards.
10.4 Copyright, Ownership and Right of Use
10.4.1 The Client agrees that Roikings is the author of any work commissioned from Roikings, and that Roikings will retain ownership of the copyright subsisting in such work, unless otherwise agreed between the Parties in writing.
10.4.2 The parties record that Copyright of all work that was commissioned from Roikings and developed specifically for the Client will be retained by Roikings for the duration of this Agreement. On termination of this Agreement, and provided that all amounts due and payable by the Client to Roikings in terms of this Agreement have been paid in full, Copyright in such works will automatically be transferred to and vest in the Client.
10.4.3 Any rights that have not expressly been granted to the Client remain the exclusive property of Roikings.
10.4.4 Roikings reserve the right to use the Client’s name as a reference for marketing and/or promotional purposes on the Roikings website and in any other communication with existing or potential Roikings customers.
11 DATA PRIVACY
11.1 Each Party will be responsible for complying with its respective obligations under the applicable Data Privacy Laws governing the collecting, Processing, storing and sharing of Personal Information, as defined in the relevant Data Privacy Laws.
11.2 The Client will be regarded as the Data Controller and Roikings as the Data Processor for all Prospect Data and Personal Information collected and Processed by Roikings in providing the Services to the Client in terms of this Agreement.
11.3 When collecting and Processing Prospect Data in terms of this Agreement, Roikings undertakes that:
11.3.1 it will comply with all applicable Data Privacy Laws;
11.3.2 it will keep Prospect Data and all Personal Information received from the Client confidential, and only use, Process and/or hold such information for the purpose of providing the Services and performing its obligations in terms of this Agreement;
11.3.3 it will take appropriate and reasonable technical and organization measures to:
220.127.116.11 secure and protect the integrity and confidentiality of Prospect Data;
18.104.22.168 prevent any loss, damage or unauthorized destruction of Prospect Data;
22.214.171.124 prevent any unauthorized access to, use of and/or Processing of Prospect Data;
in its possession and/or under its direct control, and which has been collected and/or Processed for and/or on behalf of the Client in terms of this Agreement;
11.3.4 it will immediately or as soon as reasonably possible, report to the Client any use or disclosure of Prospect Data which is not specifically provided for in this Agreement, of which Roikings becomes aware, including any data breaches or security incidents of which Roikings becomes aware;
11.3.5 it will immediately notify the Client of any accidental or unauthorized use of or access to Prospect Data;
11.3.6 on the occurrence of any incident referred to in 11.3.4 or 11.3.5 above, it will:
126.96.36.199 comply with all reasonable and lawful instructions and directions given by the Client in relation thereto;
188.8.131.52 take all measures reasonably necessary to determine the scope of the compromise and to restore the integrity of the Prospect Data compromised;
184.108.40.206 provide all information which may be requested by the Client, co-operate fully with the Client in relation to any notifications which may be made by the Client to any Data Privacy regulator, prospects or any other person; and
220.127.116.11 co-operate with the Client in relation to any investigations that the Client may initiate, or which may be initiated by an investigator or other authority in relation to any applicable Data Privacy Laws;
11.3.7 it will forward to the Client all Personal Information access requests received by prospects and/or third parties in relation to the Prospect Data collected and/or Processed by Roikings in terms of this Agreement;
11.3.8 it will, on the reasonable written request from the Client, and at the Clients own cost and expense, supply all reasonable information and data required by the Client to investigate the steps being taken by Roikings to comply with the applicable Data Privacy Laws;
11.3.9 it will, on termination of this Agreement for any reason whatsoever, subject to the provisions of clause 11.5 below, and at the written request of the Client, either:
18.104.22.168 return all of the Prospect Data and Personal Information being Processed in terms of this Agreement, which is in its possession or under its control, to the Client; or
22.214.171.124 destroy all of the Prospect Data and Personal Information in its possession or under its control, by shredding, erasing or otherwise modifying the data to make it unreadable or indecipherable through any reasonably foreseeable means;
and may, in addition, furnish a written statement to the effect that upon such return or destruction, it has not retained in its possession or under its control, either directly or indirectly, any such Prospect Data or Personal Information or any copies thereof; Provided that, in either instance, Roikings shall be entitled to retain a record or copies of all such Prospect Data and Personal Information that it is required or authorized to retain by Law.
11.4 The Client acknowledges and agrees that, in order for Roikings to provide the Services to it in terms of this Agreement, it is necessary for the Client to grant, and the Client hereby grants, Roikings certain rights with respect to the Prospect Data, including but not limited to the right to collect, Process, store and retain Prospect Data, and the right to share Prospect Data and Personal Information with third party service providers that are required for the provision of the Services and/or are necessary for the provision of the Services. Where necessary and/or required for the provision of the Services, the Client further consents and agrees to the Prospect Data being transferred outside of the country in which it has been collected and/or Processed, for Processing for the purposes of providing the Services to the Client in terms of this Agreement.
11.5 The Database of Prospect Data that is collected by Roikings during the provision of the Services will be collected by Roikings for both the Client and Roikings use. The parties will become the owners of this collected database of Prospect Data, individually in their own right. Roikings will accordingly be entitled to use and process the Prospect Data and to recontact any Prospects from the Prospect Data base, but will only be permitted to do so after a period of 3 (three) months following the termination of this Agreement, for any reason whatsoever. Roikings will be responsible for the lawful processing of all Prospect Data that it processes for its own purposes and which is not processed for or on behalf of the Client and/or in connection with the provision of the Services for or on behalf of the Client.
11.6 Once the Prospect Data has been handed over to the Client on completion of the Services, the Client undertakes to Process the Prospect Data in accordance with the applicable Data Privacy Laws, and hereby indemnifies, defends and holds Roikings harmless in respect of any and all claims brought by any third party for loss, damage, liability, costs and/or expenses (including attorneys’ fees and costs on the maximum permitted scale of recovery) of any nature whatsoever incurred as a consequence of, arising from and/or attributable to any use of and/ Processing of Prospect Data which is done by the Client in contravention of any such Data Privacy Laws.
11.7 As the Prospect Data is being collected, used and Processed by Roikings for and/or on behalf of the Client for the provision of the Services, the Client as the Data Controller hereby indemnifies, defends and holds Roikings harmless in respect of any and all claims brought by any third party for loss, damage, liability, costs and/or expenses (including attorneys’ fees and costs on the maximum permitted scale of recovery) of any nature whatsoever incurred as a consequence of, arising from and/or attributable to the collection, Processing and/or use of the Prospect Data by Roikings in providing the Services for and on behalf of the Client.
11.8 The provisions of this clause 11 will survive the termination of this Agreement for any reason whatsoever.
12 COMPLIANCE WITH THE CAN-SPAM ACT OF 2003 (AS APPLICABLE – UNITED STATES OF AMERICA)
12.1 The Services to be provided by Roikings in terms of this Agreement, may not be used for the sending of unsolicited emails or communications that are in violation of any applicable laws or for the transmission of illegal or prohibited Content.
12.2 The provisions of this clause apply to all electronic mail messages (“email message\s”) sent by Roikings on behalf of the Client in providing the Services, where the Client and/or the recipient of the email message is within the United States of America and the provisions of the CAN-SPAM Act of 2003 (the “CAN-SPAM Act”) apply.
12.3 The Client will be regarded, for all purposes as both the Initiator and the Sender of any email message in terms of the provisions of the CAN-SPAM Act.
12.4 Roikings, in providing the Services to the Client, undertakes to comply with the provisions of the CAN-SPAM Act, in relation to any email messages sent for and on behalf of the Client. In this regard, Roikings will ensure that:
12.4.1 the Client is recorded as the sole and designated sender of any e-mail messages sent through the provision of the Services;
12.4.2 any unsolicited bulk email messages sent for and on behalf of the Client will not be sent in violation of the CAN-SPAM Act;
12.4.3 the “from” line of any email message sent for or on behalf of the Client will accurately and in a non-deceptive manner identify the Client and/or the Client’s product and/or service;
12.4.4 the “subject” line of any email message sent for or on behalf of the Client will not contain any deceptive or misleading content regarding the overall subject matter of the email message. In this regard it will be the Client’s responsibility to ensure that the content of all email messages approved for any email outreach campaign does not contain any deceptive or misleading content;
12.4.5 all email messages sent on behalf of the Client will contain a clear and distinctive opt-out notice advising the recipient on how he/she can opt-out of receiving future email messages and the opt-out mechanisms used will be functional;
12.4.6 the Client’s physical and/or postal address (in the United States of America) will be included in all email messages. In this regard, the Client must provide Roikings with a valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service, for inclusion in the email messages;
12.4.7 all email messages sent on behalf of the Client will be identified as, and contain a clear notice that it is an advertisement or solicitation (unless the recipient has previously opted-in to receive these email messages);
12.4.8 all Opt-out requests received by Roikings for the Email outreach campaign will be processed and honoured by Roikings.
13 EMAIL OUTREACH CAMPAIGNS AND OPT-OUT DATABASES
13.1 Before Roikings commences any email outreach campaign on behalf of the Client, the Client must give Roikings a list of all prospects that have previously opted-out of receiving email messages or marketing communications from the Client (the Client’s “Opt-out database”), to ensure that Roikings does not contact prospects who have previously opted-out and are recorded on the Client’s Opt-out database. The Client warrants that the Opt-out database provided to Roikings is complete and accurate.
13.2 On completion of the email outreach campaign, Roikings will provide the Client with a full prospects data-base, which will include a list of those prospects that have opted-out of receiving email messages from the Client during the campaign. In accordance with the provisions of the CAN-SPAM Act (where applicable), and any applicable Data Privacy Laws, the Client is not permitted to contact a prospect once that prospect has opted-out.
13.3 Roikings does not accept any liability for, and the Client hereby indemnifies and hold Roikings harmless against any and all claim/s brought against the Client and/or Roikings by any third party for loss, damage, liability, costs and/or expenses (including attorneys’ fees and costs on the maximum permitted scale of recovery) of any nature whatsoever incurred as a consequence of, arising from or attributable to:
13.3.1 the Client’s non-compliance with the provisions of the CAN-SPAM Act;
13.3.2 the Client’s non-compliance with any applicable Data Privacy Laws;
13.3.3 non-compliance with any Laws that may be applicable to the sending of email messages and/or marketing communications in the country where the email messages and/or marketing communications are received;
13.3.4 the Client contacting a prospect who has opted-out of receiving any email messages during the email outreach campaign, as recorded on the prospects data-base received from Roikings at the end of the campaign, in contravention of the CAN-SPAM Act (where applicable), any other applicable Laws and/or any applicable Data Privacy Laws;
13.3.5 the Client providing Roikings with a prospects list or prospects data-base for the email outreach campaign which contains prospects that have previously opted-out of receiving email messages from the Client; and/or
13.3.6 the Opt-out database received from the Client in accordance with clause 13.1 above being incomplete or inaccurate.
14 LIABILITY AND INDEMNITY
14.1 Notwithstanding anything to the contrary contained herein, Roikings will not be liable for any direct or indirect (including any consequential, punitive, incidental or special) loss, damages, costs and/or expenses of any nature or legal basis whatsoever, which the Client may suffer or incur as a consequence of, arising from or attributable to, i) the provision of the Services or any other services performed by Roikings for on behalf of the Client, and/or ii) any act or omission on the part of Roikings in relation to the provision of the Services.
14.2 The Client hereby indemnifies, defends and holds Roikings harmless in respect of any claim brought by any third party for loss, damage, liability, costs and/or expenses (including attorneys’ fees and costs on the maximum permitted scale of recovery) of any nature whatsoever incurred as a consequence of, arising from or attributable to, i) the provision of the Services or any other services performed by Roikings for on behalf of the Client, and/or ii) any act or omission on the part of Roikings in relation to the provision of the Services.
14.3 If, notwithstanding the provisions of 14.1 and/or 14.2 above, a court of competent jurisdiction or an arbitrator in terms of clause 18, as the case may be, finds that Roikings, its employees or officers, are liable to the Client or to any third party that the Client has indemnified Roikings against in terms hereof, such liability will be limited to a maximum of 3 (three) monthly payments of the Fixed Monthly Fee paid by the Client for the rendering of the Services in terms of this Agreement. In the event that the exclusion of liability contained herein is not permitted, for any reason whatsoever, the liability of Roikings will be limited to the greatest extent permitted by Law.
14.4 The indemnification and limitation of liability provided for in this clause 14 will survive the termination of this Agreement.
15 INDEPENDENT CONTRACTOR
15.1 This Agreement will not constitute an employment, agency, franchise, partnership or joint venture arrangement between the Parties. Roikings will at all times remain an independent contractor of the Client for the duration of this Agreement.
15.2 This Agreement does not establish Roikings as the Client’s representative or agent for any purpose other than for the purpose of providing the Services for and on behalf of the Client.
15.3 Neither Party will be entitled to make any express or implied agreements, guarantees or representations on behalf of the other Party or incur any debt in the name of, or on behalf of the other Party, save in the ordinary course of the provision of the Services.
16.1 If a Party (the “defaulting party”) breaches any of the terms or conditions of this Agreement and fails to remedy that breach within 10 (ten) days of receipt of a written notice of demand from the other Party (the “aggrieved party”) calling on it to do so, or where 10 (ten) days is insufficient for the nature of the breach, then within a reasonable period as determined and stated by the aggrieved party in the written notice of demand, then the aggrieved party will have the right (notwithstanding any previous waiver, relaxation or indulgence granted to the defaulting party), without prejudice to any of its rights at Law, to cancel this Agreement and/or to claim specific performance of the terms and conditions of this Agreement.
16.2 Notwithstanding the provisions of clause 16.1 above, and subject to the provisions of A3 of Part A: Agreement Schedule, either Party will be entitled to terminate this Agreement by giving the other Party 1 (one) calendar month’s prior written notice of their intention to do so.
17 CIRCUMSTANCES BEYOND ROIKINGS CONTROL
17.1 Roikings will be entitled to postpone, suspend or cancel the performance of any Services to be provided by it, in the event that such postponement, suspension or cancellation is brought about by circumstances beyond the reasonable control of Roikings and/or any third party service providers required for the provision of the Services. For the purposes of this clause the term “circumstances beyond the reasonable control” will mean any event which Roikings or the provider in question could not foresee or avoid even after taking all reasonable care. Such circumstances will usually include, but not be limited to war, terrorist activity, civil unrest, riots, industrial actions, acts of government or other authorities, acts of God, bad weather conditions (actual or threatened), or unavailability of or interruption in the supply of Services.
17.2 Roikings will not be in breach of this Agreement or accept any liability for any delays, damages or failure to perform any of its obligations under this Agreement in the event that such delay, damage or failure to perform arose as a result of circumstances beyond the reasonable control of Roikings and/or any third party service providers required for the provision of the Services.
18 DISPUTE RESOLUTION
18.1 Should any dispute arise between the Parties regarding the interpretation of, the effect of, the Parties’ respective rights or obligations under, a breach of, the termination of, any matter arising out of the termination of this Agreement, the Parties will meet (in person or via teleconference or videoconference) as soon as reasonably possible for the purposes of resolving the dispute on mutually acceptable terms within 7 (seven) days after meeting.
18.2 If the dispute cannot be resolved in accordance with clause 18.1 above, then the dispute must be referred to mediation. The Parties will attempt in good faith to resolve the dispute within 5 (five) days before a mediator agreed to between the Parties or if the Parties are unable to agree to a mediator, a mediator will be appointed through the Arbitration Foundation of Southern Africa (“AFSA”).
18.3 Should either Party disagree with the mediator’s findings, then the dispute must be referred to arbitration for resolution. The arbitration will be held in Johannesburg, South Africa (or in such other location as is agreed between the Parties in writing), in English, with only the Parties and their representatives (including any legal representatives) present.
18.4 The arbitrator must be an impartial admitted attorney, advocate or retired judge of not less than 10 (ten) years standing jointly appointed by the Parties or, failing agreement by the Parties within 5 (five) days after the arbitration has been demanded, at the request of either of the Parties will be nominated by AFSA (or its successor body), whereupon the Parties will immediately appoint such person as the arbitrator.
18.5 The arbitration must be held in accordance with the Rules of AFSA, or if AFSA is not in existence at the time, then in accordance with the formalities and procedures settled by the arbitrator, which must be in an informal and summary manner, that is, it will not be necessary to observe or carry out either the usual formalities or procedure or the strict rules of evidence, and otherwise subject to the Arbitration Act, 1965 (the “Arbitration Act”), as amended from time to time.
18.6 The arbitrator’s decision will, in the absence of manifest error, be final and binding on the Parties, who hereby agree to give effect to the award. Any Party may make such decision an order of court.
18.7 The provisions of this clause 18 are severable from the rest of this Agreement and will remain in effect even if this Agreement is terminated for any reason.
18.8 Nothing contained in this clause will be deemed to prevent or prohibit either Party from applying to an appropriate court of competent jurisdiction for urgent interim relief.
19 DOMICILE ADDRESS
19.1 The Parties hereby choose their Domicile Address (domicilium citandi et executandi), for all purpose in terms hereof, at the following addresses:
20.1.1 ROIKINGS: Physical address: Unit 10-18, 32/F, Tower 1, Millennium City 1, 388 Kwun Tong Road, Kwun Tong, Kowloon, Hong Kong
Attention: Ike Bekker
20.1.2 CLIENT: As set out in A5 of Part A: Agreement Schedule above.
20.3 Any notice or communication required or permitted to be given in terms of this Agreement will be valid and effective only if in writing, but it will be competent to give notice by e-mail.
20.4 Either Party may by notice to the other Party change the physical address chosen as its Domicile Address to another physical address, provided that the change will become effective on the 7th (seventh) business day from the deemed receipt of the notice by the other Party.
20.5 Any notice to a Party delivered by hand to a responsible person during ordinary business hours will be deemed to have been received on the day of delivery, or sent by email to its chosen email address will be deemed to have been received on the date of dispatch (unless the contrary is proved).
20.6 Notwithstanding anything to the contrary stated herein, a written notice or communication actually received by a Party will be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen Domicile Address.
20.1 This Agreement constitutes the whole of the agreement between the Parties relating to the matters dealt with herein and, save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement will be binding on either of the Parties.
20.2 No addition to or variation, deletion, or agreed cancellation of any and all clause/s and/or provision/s of this Agreement will be of any force or effect unless in writing and signed by or on behalf of the Parties.
20.3 No waiver of any of the terms and conditions of this Agreement will be binding or effectual for any purpose unless in writing and signed by or on behalf of the Party giving the same. Any such waiver will be effective only in the specific instance and for the purpose given. No failure or delay on the part of either Party in exercising any right, power or privilege hereunder will constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
20.4 All provisions and the various clauses of this Agreement are, notwithstanding the way they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is held invalid, void, illegal or unenforceable by a court of competent jurisdiction will, only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement will remain valid and enforceable. The Parties will thereafter negotiate in good faith, a substitute, valid and enforceable provision which most nearly puts into effect the Intention of the Parties.
20.5 This Agreement will be governed by and interpreted in accordance with the Laws of the country in which Roikings is domiciled and registered and all disputes, legal actions and any other matters relating thereto shall be determined in accordance with such Law. Any reference to the term “Law” or “Laws” in this Agreement shall, unless otherwise stated in this Agreement, refer to the Laws of the country in which Roikings is domiciled and registered.
I have read all pages of this contract and agree to the terms and conditions by or on behalf of the Parties as set out on the registration page by ticking the box agreement box, each signatory hereto warranting that he or she has due authority to do so.