Service Level Agreement
ENTERED INTO BY AND BETWEEN THE CLIENT AND LEAD LOUD MARKETING
WHEREAS Lead Loud renders social media marketing and related services; and
WHEREAS the client is desirous of employing the services offered by Lead Loud; and
WHEREAS Lead Loud is desirous to provide the client with the services as more fully set out in annexure "A" to the service level agreement; and
WHEREAS the parties formalised its business relationship by concluding a service-level agreement that regulates all aspects of the parties' relationship.
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
These terms and conditions shall take precedence over any other terms and/or agreements that may have been discussed and/or entered into by and between the parties.
2.1. These definitions may contain a number of terms and phrases which have a specific meaning in this agreement. In these terms, headings are for convenience and shall not be used in interpretation.
2.2. Unless it is indicated to the contrary in these terms, any references to any gender includes the other genders, a natural person includes an artificial person and vice versa, the singular includes the plural and vice versa.
2.3. The words "include" and "including" shall mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
2.4. The rule of construction that this agreement shall be interpreted against the party responsible for the drafting of this agreement, shall not apply.
2.5. Any reference in this agreement to "this agreement" or any other agreement or document shall be construed as a reference of the agreement or, as the case may be, such other document, as amended, varied, novated or supplemented from time to time.
2.6. In the event of any conflict between the provisions of this agreement and any schedule to it, the provisions of this agreement shall prevail.
2.7. The following expressions shall bear the meanings assigned to them below and related expressions shall bear similar meanings:
3.1. "Agreement": means the service level agreement, which specifically includes these terms and conditions together with all annexures thereto as may be amended from time to time.
3.2. "Approval": means verbal and/or written consent by the client. If the client does not raise any queries or objections within the specified timeline, the content will be deemed as approved. "Business day": means any day other than a Saturday, Sunday or official public holiday in the Republic of South Africa.
3.3. "Commencement date": means, notwithstanding the signature date, the date of commencement as per the service level agreement.
3.4. "Lead Loud": means a private company duly incorporated in terms of the Company Laws of the Republic of South Africa, namely:- [ELAGRAPH (PTY) LTD t/a LEAD LOUD MARKETING] with registration number [2022/530463/07] and registered address situated at [Unit 34, 355 Glenwood Road, Faerie Glen, Pretoria, Gauteng Province].
3.5. "Month": means a calendar month.
3.6. "Parties": means Lead Loud and the client as defined on the cover page of the service level agreement.
3.7. "Services": means the services provided by Lead Loud to the client in terms of annexure "A" to the service level agreement as selected by the client.
3.8. "Signature Date": means the date upon which the client signed the service level agreement.
3.9. "Trial period": means a three-month period that will initiate on the commencement date and during which either party may not cancel the agreement and/or trial period.
3.10. "The Client": means the natural or juristic person as defined in the service level agreement.
4.1. Upon the commencement date, the trial period will initiate.
4.2. Once the trial period had been dispensed with, a meeting will be scheduled between the parties for purposes of electing whether to continue with the business relationship, or to terminate same by mutual consent, in accordance with the remaining provisions of this agreement.
4.3. Notwithstanding the signature date, and subject to the remaining provisions of this agreement, this agreement will commence on the commencement date, and after the three-month trial period will continue for a fixed period of 12 months.
4.4. Should either party elect to terminate this agreement after the fixed period started, then it shall be obliged to give the other party at least 2 (TWO) calendar months prior, written notice of its intention to do so. It is specifically recorded that Lead Loud tenders to continue providing services to the client during the two-month' notice period.
5.1. Lead Loud shall provide the services listed in schedules "A" attached to the service level agreement as agreed upon between the parties and on the terms and condition as outlined herein.
6.1. The fees levied by Lead Loud in terms of this agreement shall be in accordance with the package as recorded in annexure "A" to the service level agreement.
6.2. All fees in this agreement are inclusive of Value Added Tax at a rate of 15%.
6.3. For purposes of web and graphic design clients and/or packages, Lead Loud will require an upfront payment of 50% of the price as outlined in annexure "A" of the service level agreement. The balance will be payable once the applicable work has been completed – but before the website is made "live".
6.4. In the event of Lead Loud exceeding the hours included in the package as per annexure "A" to the service level agreement, it will communicate same to the client before conducting further work.
7.1. Lead Loud shall render monthly invoices to the client as agreed upon in annexure "A" to the service level agreement between the 25th and the 27th day of each succeeding month.
7.2. Service fees are payable monthly in advance and payment thereof must be reflected in the bank account of Lead Loud no later than the 1st day of the succeeding month, failing which all services rendered by Lead Loud in terms of this agreement will be suspended. Additionally, interest shall be levied a tempore morae, monthly until such time that the invoice or the balance thereof has been paid in full.
7.3. Lead Loud will not change its banking details. Should you receive a notification of any purported change in Lead Loud's banking details, it is likely to be fraudulent. In this regard, the client is implored to contact a representative of Lead Loud to verify any banking information. Lead Loud will not accept any liability for and will not give credit for payments made into any bank accounts other than the bank account nominated by Lead Loud.
8.1. The client shall be responsible:
8.1.1. for the punctual payment of monthly service fees as stipulated in clause 7 supra;
8.1.2. for submitting content to the Google link, which Lead Loud is permitted to utilise in the marketing of the client's enterprise (which includes legality, reliability, accuracy and relevance thereof);
8.1.3. to inform Lead Loud of any changes to the client's contact details and/or other relevant information;
8.1.4. to strictly adhere to deadlines;
8.1.5. to provide any "special requests" to Lead Loud in writing;
8.1.6. approve any content on the Google Drive;
8.1.7. obtain the necessary consent to photograph products and/or people, as the case may be;
8.1.8. provide the client's databases of its clients to Lead Loud for the sole purpose of Lead Loud performing its duties in accordance with the provisions of this agreement;
8.1.9. for interacting with its clients on DM's (direct messages), e-mails, messengers and enquiries, as the case may be.
8.2. Lead Loud shall be responsible for
8.2.1. not combining and/or utilising and/or distributing the client's database referred to in 8.1.8 above;
8.2.2. acknowledging the author, source, origin or owner of content;
9.1. Lead Loud, may be provided with information that may constitute personal information, as defined in the POPI Act. The client consents to Lead Loud processing (as defined in the POPI Act, which includes collecting, recording, collating, storing, and transmitting of) the personal information that the client provides to Lead Loud for any purpose as may be required in terms of this agreement and in the executing of the services.
10.1. Lead Loud confirms and warrants that it has policies and procedures reasonably designed to detect, prevent, and respond to cyberattacks. Further, the parties agree and undertake to promptly notify the other party of any cybersecurity breach which may affect either party in any way. Lead Loud will, however, not be liable for any damage caused to the client as a result of a cyberattack on Lead Loud and or on the client.
10.2. Lead Loud confirms that it has a Two-Factor Authentication (2FA) system in place in order to protect its clients to the best of its ability.
10.3. Admin of a client's Ad Centre is encouraged to enable 2FA on all accounts.
10.4. Clients are advised to not use a bank card linked to a business or personal account, but rather to create a separate bank account with a dedicated bank card specifically for ad spending. It is suggested that clients transfer only the allocated ad budget into this account to ensure that cybercriminals can never access more than a client's monthly ad budget. This remains the sole responsibility of clients.
10.5. Lead Loud further recommend that clients use a virtual card linked to the separate ad account, which continuously generate new security codes, granting clients extra protection against cybercrimes.
10.6. While Lead Loud does everything possible to prevent cybercrime and/or cyberattacks on its end, Lead Loud will not be liable for any loss or damage caused to a client by cyber criminals.
11.1. Should any party ("the defaulting party") commit a breach of any provision hereof, then the other party ("the aggrieved party") shall, if it wishes to enforce its rights hereunder, be obliged to give the defaulting party 10 (TEN) business days written notice to remedy such breach.
11.2. If the defaulting party fails to comply with such notice, the aggrieved party shall be entitled to terminate this agreement (subject to clause 4) and/or to claim specific performance from the defaulting party of all the defaulting party's obligations whether or not the due date for the payment and/or performance have arrived, in either event and without prejudice of the aggrieved party's rights to claim damages.
11.3. The foregoing is without prejudice to such other rights as the aggrieved party may have in law – provided that, notwithstanding anything to the contrary contained in this agreement, the aggrieved party shall not be entitled to terminate this agreement, for any breach by the defaulting party unless such breach is a material breach going to the root of this agreement and is incapable of being remedied by payment in money, or if it is capable of being remedied by a payment in money, the defaulting party fails to pay the amount concerned within 10 (TEN) business days after such amount has been determined.
12.1. The parties hereby irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Magistrates' Court in regard to all matters arising from this agreement.
13.1. The parties hereto choose as domicilium citandi et executandi for all notices and the service of all processes the addresses as follows:
13.1.1. Lead Loud Marketing:
5 Anton van Niekerk Street, Faerie Glen, Pretoria
Email: info@leadloudmarketing.com
13.1.2. Client address as stated in the signed document.
13.2. Any notice of any change of address must be given in writing by the party concerned and delivered by e-mail to the other party.
13.3. Every notice shall be deemed, unless the contrary is proved, to have been received, on the dated of delivery.
14.1. In the event of any act of God, strike, war, warlike operation, rebellion, riot, civil commotion, lockout, fire, accident or any action taken beyond or outside the reasonable control of the parties hereto, preventing them or any of them from the performance of any obligation hereunder, then the party affected by such Force Majeure shall be relieved of its obligations hereunder during such period.
14.2. In the event that the Force Majeure continues, 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 damage which the other party may suffer due to or resulting from the Force Majeure, provided always that a written notice shall be promptly given of any such inability by the affected party. Any party invoking Force Majeure shall upon termination of such Force Majeure give prompt written notice thereof to the other party. Should Force Majeure continue for a period of more than 90 (NINETY) days, then either party shall be forthwith entitled to cancel this agreement.
14.3. It is specifically recorded that Lead Loud will not be held liable whatsoever for any failure, down-time, black-out, disconnection of META, complete electricity failure and/or internet outage. The client acknowledges that Lead Loud has no control whatsoever over META, electricity supply and/or the provision of internet services.
15.1. No variation of this agreement will be effective unless in writing and signed by the parties (or their representatives). Any amendment to this agreement agreed to by the parties will be deemed to apply to all future agreements entered into after the date of such amendment.
16.1. No waiver, suspension or postponement by a party of any right arising out of or in connection with this agreement shall be of force or effect unless in writing and signed by such party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.
17.1. Unless the context indicated otherwise the rights and obligations of any party arising from this agreement shall devolve upon and bind its successors in title.
17.2. Prior drafts of this agreement shall not be admissible in any proceedings as evidence of any matter relating to any negotiations preceding the signature of this agreement.
17.3. Neither party may cede or assign any of their obligations in terms of this agreement to any person, without the prior written consent of the other party, which consent shall not be unreasonably withheld.
18.1. The client warrants that:
18.1.1. by the undersigning of the service level agreement, it gives its express authorisation may disseminate, reproduce and use the content on the client's website, social media platform, e-mail marketing (as the case may be – and without limitation);
18.1.2. it accepts full responsibility for the content which it submits to Lead Loud and/or approves;
18.1.3. that Lead Loud cannot be held liable for direct and/or indirect and/or special damages and /or consequential damages or loss resulting from the late submission of digital advertising material;
18.1.4. it accepts that once content is submitted to Lead Loud, it is provided to Lead Loud on a non-exclusive, royalty-free license to the intellectual property pertaining to such content;
18.1.5. it warrants and acknowledges that Lead Loud cannot be held liable for errors contained in content (written or otherwise) after the client has approved same and/or same has been published;
18.1.6. none of the content submitted to Lead Loud contravenes any Act or constitutes an infringement of the intellectual property rights or any other rights of third parties and you indemnify Lead Loud, its directors and employees against any claims resulting from any such content submitted;
18.1.7. it understands and acknowledges that Lead Loud does not in any way manner or form guarantee more sales and/or enquiries – merely an increase in brand awareness and brand image;
18.1.8. both parties and the persons signing on behalf of the parties, warrant their authority to conclude this agreement;
18.1.9. both parties further warrant that there is nothing contrary to this agreement, which may influence, or prevent any of the provisions of this agreement from being enforced.
19.1. In the event of any one or more of the clauses contained in this agreement being held for any reason to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any of the provisions of this agreement, and this agreement shall be construed as if such invalid, illegal or unenforceable provision was not part of this agreement and the agreement shall be carried out as nearly as possible in accordance with its original terms and intent.
20.1. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, all of which together shall constitute one and the same agreement as at the date of signature of the other party that signs its counterpart last in time.
21.1. This Agreement constitutes the whole agreement between the parties and no alteration or variation of neither this agreement nor any representations or warranties of whatsoever nature shall be of any force or effect unless reduced to writing and signed by the parties hereto.
22.1. The parties unconditionally and irrevocably agree, confirm and undertake that the business relationship between them will be delivered and conducted in accordance with the best business practices at all material times.
22.2. It is specifically recorded between the parties that the client will not solicit or attempt to solicit the employees of Lead Loud for any reason whatsoever.