1. Introduction
These terms and conditions (“Terms”) govern the agreement in respect of all services, processes, deliverables delivered, provided or executed by Create Innovate Marketing Management (“Design.Create”) to/for you (the “Client”). (“the Agreement”) Any quotations issued by Design.Create to the Client and accepted by the Client shall be deemed to be incorporated into these Terms.
2. Definitions:
Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:
2.1. “Client” means, you, the party engaging with Design.Create on any matter, including, for purposes of receiving Services from Design.Create;
2.2. “CPA” means the Consumer Protection Act 68 of 2008;
2.3. “Data” means any data, including personal information as defined in the Protection of Personal Information, Act 4 of 2013, the Electronic Communications, Act 25 of 2002 and any other applicable legislation in the jurisdiction where the Services are to be provided, supplied, stored, collected, collated, accessed, retained or processed by Design.Create on behalf of the Client, irrespective of the media or form;
2.4. “Data Protection Legislation” means the laws relating to data protection in the UAE and South Africa, including, but not limited to, the Electronic Communication and Transactions Act 25 of 2002, the Consumer Protection Act 68 of 2008 and the Protection of Personal Information Act 4 of 2013;
2.5. “Data Subject” means any person to whom the specific personal information/Personal Data relates, as contemplated in POPI;
2.6. “Deliverables” means any deliverable recorded in the Services provided by Design.Create to the Client including any designs, software, programs, creative work, copy, documents, data or other materials developed by Digit Lab expressly, specifically and exclusively at the request and instance of for the Client in terms of these Terms of Service;
2.7. “Design.Create” means Create Innovate Marketing Management with registration number 986210 who carries on business at Villa 649, Hayat Townhouses, Town Square, Dubai UAE, 0000;
2.8. “ECTA” means the Electronic Communication and Transactions Act 25 of 2002;
2.9. “IP Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, trade, business and domain names, rights in trade dress or get-up, rights in designs, proposals, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
2.10. “Parties” means the Client, and Design.Create;
2.11. “Party” means the Client or Design.Create;
2.12. “Personal data” means all personal data including, inter alia-
2.12.1. Race, sex, gender, sexual orientation, pregnancy, marital status, nationality, ethnic or social origin, colour, age, physical or mental health, well-being, disability, religion, conscience, belief, cultural affiliation, language and birth;
2.12.2. Education, medical, financial, criminal or employment history;
2.12.3. Names, identity number and/or any other personal identifier, including any number(s), which may uniquely identify a data subject, account or client number, password, pin code, customer or data subject code or number, numeric, alpha, or alphanumeric or configuration of any nature, symbol, e-mail address, domain name or IP address, physical address, cellular phone number, telephone number or other assignment;
2.12.4. Blood type, fingerprint or any other biometric information;
2.12.5. Personal opinions, views or preferences;
2.12.6. Correspondence that is implicitly or expressly of a personal, private or confidential nature (or further correspondence that would reveal the contents of the original correspondence); and
2.12.7. Corporate structure, composition and business operations (in circumstances where the Data Subject is a juristic person) irrespective of whether such information is in the public domain or not.
2.14. “POPI” means the Protection of Personal Information Act 4 of 2013;
2.15. “Processing” means the collection, receipt, recording, organisation, collation, storage, updating or modification, testing of, retrieval, alteration, consultation or use;
2.15.1. Dissemination by means of transmission, distribution or making available in any other form by electronic communications or other means; or
2.15.2. Merging, linking, blocking, degradation, erasure or destruction; and “Process” has a corresponding meaning.
2.16. “Project Contract” means the specific services rendered by Design.Create to the Client;
2.17. “Service Level Information Document” means the document in which the Client has inserted all of the Client’s contact information which forms part of these Terms.
2.18. “Services” means the performance of the services, functions, responsibilities, development and delivery of Deliverables by Design.Create including but not limited to:
2.18.1. Creative/Strategy/Consulting Services– digital business consulting, creative direction, strategy, art direction, video production/storyboarding, user experience design and general consulting;
2.18.2. Social/Content– Copywriting/content writing or editing, blog writing/editing, community management;
2.18.3. Online Marketing Services – the promotion of product and services through online marketing channels including but not limited to search engine optimisation (SEO) advertising, research, backlinking, design and copywriting.
2.18.4. Development– App/mobile development, senior web development, junior web development, web/app content uploads.
2.19. “The Design.Create Proprietary Material” means any product, software, document, business process, text, artwork, trade mark, branding, logo, slogan, design, still, graphic, video, photograph, sound recording, script, music, picture, proposal, document and/or other data or material of any nature whatsoever, and all right, title and interest therein (including but not limited to, the underlying copyright in any source code or business methodology associated therewith and all other IP Rights therein) which is used, owned, developed and/or created by or for, or licensed to, Design.Create at any time, (including without limitation any of the aforementioned data or material which is created by Design.Create for its own use and/or which existed prior to the execution of any Services.
2.20. “VAT” means Value-Added Tax.
3. Appointment & Duration
3.1. The Client shall be bound by these Terms the moment you acknowledge acceptance of these Terms and subject to Clause 14, will terminate once Design.Create has delivered the Services to the Client, the Client has paid for such Services in full or the Terms are terminated in line with Clause 9 below.
4. Services
4.1. Design.Create shall deliver the Services to the Client as listed in the quotation issued by Design.Create to the Client, which quotation has been duly accepted by the Client.
5. Hourly Rate Charges
5.1. In consideration for its Services, Design.Create will charge for its Services as per its hourly rates set out in Design.Create’s quotation/s issued to the Client.
5.2. The Client acknowledges that it accepts Design.Create’s rates.
5.3. The Client acknowledges that Design.Create’s rates exclude VAT, which shall also be payable by the Client to Design.Create.
5.4. The Client acknowledges that Design.Create’s rates shall be billed in 15 (fifteen) minute increments or part thereof.
5.5. The Client further acknowledges that Design.Create’s hourly rates are subject to revision on an annual basis from 1 January of each year.
5.6. Design.Create shall provide the Client with a written notice of its updated rates however the failure of Design.Create to do so will not release the Client from its obligations to compensate Design.Create for its Services.
6. Payment Terms
6.1. Design.Create shall issue an invoice for the services rendered and the Client shall pay the total fee specified upon presentation of the invoice.
6.2. Should any fees not be paid upon presentation of the invoice unless otherwise agreed to in writing, Design.Create will not release or share any Deliverables. Design.Create retains the right to, including but not limited to, take any web-site, social media platform, digital advertising platform or any other digital asset offline and suspend the delivery of the Services for the period the fees remain unpaid;
6.3. All amounts payable by the Client to Design.Create shall be paid into Design.Create’s banking account or such other account as Design.Create may notify the Client in writing from time to time.
6.4. Any additional costs incurred by Design.Create due to outsourcing, advertising or third party suppliers contracted for Client work, will be for the Clients account.
7. Retainers and Out Of Scope Project Work
7.1. Subject to the quotation and Services agreed on between the Parties, the Client may be required to provide Design.Create with monthly retainer fees to the number of hours set forth in these Terms.
7.2. Payment of retainer fees by the Client are payable in advance of the Services and payable on presentation of the invoice.
7.3. Retainer fees shall be reviewed 2 months prior to the expiration of a retainer duration as agreed between Design.Create and the Client.
7.4. In the event that the Client requires additional Services, beyond the scope of the Project Contract, the additional Services shall be negotiated separately to these Terms and may require an additional quotation or a new Agreement being entered into between the Parties.
7.5. Out of scope work beyond the Project Contract and rendered beyond the retained number of hours will be billed at Design.Create’s full hourly rate according to the Service Category, or unless otherwise agreed to in writing by the Parties.
7.6. Advertising spend that is under or over utilised will carry over to the next month accordingly
8. Further Disbursements/Expenses
8.1. The Client shall compensate Design.Create for all disbursements reasonably incurred and properly vouched by Design.Create in the performance of its duties under these Terms, provided that such disbursements have been pre-approved by the Client in writing. Design.Create shall issue invoices for any such disbursements in arrears in the month in which the disbursement was incurred and Client shall make payment thereof upon presentation of the invoice.
8.2. Disbursements/expenses incurred by Design.Create on behalf of the Client are not included in Design.Create’s hourly rates and will be billed by Design.Create to the Client. These expenses/disbursements may include, but are not limited to stock photography, video editing, voice over recordings, studio fees, photography and/or hosting fees.
8.3. Subject to clause 8.4 below, the disbursements/expenses referred to in 8.1. above will incur a 20% (twenty percent) mark-up payable to Design.Create for the administration and co-ordination of any third party suppliers.
8.4. Design.Create shall be entitled to 16.5% of the value of any advertising placed for Google, Facebook, Twitter, Instagram and LinkedIn.
9. Service Charges and Payments for Once-off Projects
9.1. Unless otherwise agreed to in writing, the Client shall pay Design.Create a 50% (fifty percent) deposit prior to each Project Contract commencement. Once the Project Contract is complete, the balance outstanding shall be paid outside of the retainer.
9.2. All project contracts include 2 (two) Client reverts. Any further changes required thereafter shall be charged at Design.Create’s hourly rate as per Design.Create’s quotation/s.
10. Design.Create’s Obligations
10.1. Design.Create shall perform the Services for and on behalf of the Client to the highest expertise, skill, ability, know-how and standard possible.
10.2. Design.Create shall ensure that the Services are supervised by competent and qualified personnel.
10.3. Design.Create will make sufficient personnel available to the Client between 08h30 to 17h00 (GMT +2) from Monday to Friday, excluding public holidays.
10.4. Should the Client require Services on an after-hours basis, weekends or public holidays, the Client shall communicate such request seven days in advance. After-hours services shall be charged x1.5 times Design.Create’s normal rates and x 2 Design.Create’s normal rates on Sundays and public holidays.
10.5. Design.Create shall administer and comply with all statutory or other legal provisions relating to the provision of the Services including, without limitation to the CPA, ECT and POPI.
10.6. Design.Create agrees and undertakes that it shall, at its sole expense, for the duration of the Agreement:
10.6.1. Refrain from acting in any manner that could adversely affect the Client’s goodwill and reputation;
10.6.2. Not give any warranty or undertaking, other than with the Client’s express written consent; and
10.6.3. Keep full and proper records pertaining to its obligations arising from the Agreement.
10.6.4. The risk of loss or damage to, and ownership on and to each Deliverable shall only pass to the Client on either, acceptance by the Client of a Deliverable in writing, alternatively, payment by the Client of the Service charges for such Deliverables, whichever occurs first.
11. Community Management Service Delivery
11.1. Design.Create shall notify the Client Marketing Department in writing of all complaints related to the Services performed within 24 (Twenty-four) hours of receipt of a complaint though a channel managed by Design.Create on behalf of the Client;
12. Client’s Obligations
12.1. The Client shall for the purpose of facilitating performance by Design.Create of the Services allow
Design.Create and its employee’s access to Client’s systems and data, and timeously disclose to Design.Create all information which Design.Create requires from time to time to carry out the Services.
12.2. Unless specified otherwise, the Client shall provide Design.Create with all content, outlines, photographs, project images or any other required material in the format requested by Design.Create, and complete information necessary for Design.Create to perform or complete the agreed Services in respect of the Project Contract.
12.3. The Client acknowledges that the accuracy of the information supplied to Design.Create is the sole responsibility of the Client, and that Design.Create shall not be held responsible and shall not be held liable for the results of Services performed based on inaccurate, incomplete, or untruthful information furnished by the Client.
12.4. The Client undertakes to respond to any questions, requests, and/or communications from Design.Create within 24 hours of receiving any question, request and/or communication from Design.Create.
13. Proofing & Accuracy
13.1. While Design.Create does have stringent quality control and proof-reading process, the Client shall assume full responsibility for acceptance of Services performed and agreed upon, as well as final proofing and accuracy. The Client shall provide written approval of all Services incurred before any implementation occurs. If further amendment or changes are required after a final written approval is made by the Client, the Client shall incur additional costs according to Design.Create’s hourly rates.
14. Liaison Between Parties
14.1. The Client shall communicate requests by e-mailing Design.Create’s appointed representative as detailed in Design.Create’s quotation.
14.2. The Client shall nominate a representative through whom all communications between the Parties shall be directed.
14.3. Design.Create and the Client may change its representative within 2 week’s written notice to the other Party.
15. Third Party Service Providers/Freelancers
15.1. Design.Create may use third-party service providers/freelancers to carry out the Services for the Client.
15.2. The Client agrees to Design.Create’s use of third-party service providers/freelancers.
15.3. Design.Create may include in their quotations the setup, maintenance and/or cost of such third-party services.
15.4. Design.Create will not be liable to the Client for any interruption, non-performance or cancellation of the provision by third parties of any such services.
15.5. The Client waives and abandons any claim they may have of whatsoever nature and howsoever arising out of any act and/or omission of the third-party service providers/freelancers,
16. Third Party Services/Hosting
16.1. Design.Create use high performance web servers hosted by first class Hosting Provider Companies
16.2. By agreeing to these Terms, you also acknowledge that you have read the terms and conditions, and privacy policies of our Hosting Provider Companies and our third-party services providers (which the Client can access by clicking the links provided) these include:
16.2.1. Website Hosting and Web Services Terms;
16.2.2. Design.Create hosts its clients websites on two service providers whose terms of service and privacy policies impact the Design.Create Terms and Conditions;
16.2.3. Hosting Privacy Policy and Terms;
16.2.4. AWS Privacy Policy and Terms;
16.2.5. AWS Data Privacy FAQ;
16.2.6. Heroku Privacy and Terms of Service;
16.2.7. Mailchimp Privacy and Terms of Service;
16.2.8. SendGrid (Twilio) Privacy and Terms of Service;
16.2.9. Vimeo Privacy and Terms of Service;
16.2.10. Clickit Email Privacy and Terms of Service;
16.2.11. Moz Privacy and Terms of Service;
16.2.12. Sproutsocial, Terms, Security, Responsible Disclosure and Privacy Policies;
16.2.13. Microsoft 365 Terms of Service;
16.2.14. Gravity Forms Terms of Service;
16.2.15. Elementor Terms of Service; and
16.2.16. Google Marketing Suite Terms of Service.
17. Advertising Terms
17.1. As suppliers of Google, Facebook. Twitter and Instagram Advertising, Design.Create are bound by the following terms and the Client agrees to be bound by these terms to:
17.1.1. Google Advertising Policies;
17.1.2. Facebook Advertising Policies;
17.1.3. Twitter Advertising Policies; and
17.1.4. Instagram Advertising Policies.
18. Intellectual Property Rights
18.1. All copyright, title and interest in and to any document produced, content created, system developed or process designed, devised or modified by Design.Create in the course of performing the Services under this Agreement shall vest exclusively in Design.Create and shall remain so vested during and post termination of this Agreement. All the Client’s Intellectual Property shared with Design.Create during the term of this Agreement will also remain the Client’s property and nothing contained herein should be interpreted as providing transfer thereof to Design.Create.
18.2. The Design.Create Proprietary Material may not be used with any other product or service without Design.Create’s prior written consent.
18.3. Design.Create’s trademarks and/or copyrights may not be used in any way that may cause confusion, or in a way that prejudices or discredits Design.Create.
19. Data & Security
19.1. Design.Create has security measures in place and data retention with third parties who are POPI compliant.
19.2. Design.Create hard drives are encrypted and we have applied multi-factor authentication (MFA) on all 365 accounts.
20. Confidentiality & Non-disclosure
20.1. The Parties acknowledge that any information supplied in connection with these Terms or in connection with Design.Create or with each other’s technical, industrial or business affairs which has or may in any way whatsoever be transferred or come into the possession or knowledge of any other of them (“Receiving Party”) may consist of confidential or proprietary data, disclosure of which to or use by third parties might be damaging to the party concerned.
20.2. The Receiving Party therefore agrees to hold such material and information in the strictest confidence, to prevent any use thereof other than for the purposes of these Terms and to release it only to such properly authorised directors, employees or third parties requiring such information for the purposes of these Terms or the ordinary, proper and bona fide conduct of the affairs of Design.Create.
20.3. The undertakings and obligations contained in this clause do not apply to information which:
20.3.1. is publicly available at the date of disclosure or thereafter becomes publicly available from sources other than the Parties;
20.3.2. the Receiving Party demonstrates that it was already in its possession prior to its receipt by or disclosure to such Receiving Party;
20.3.3. is required by law or any regulatory authority to be disclosed;
20.3.4. after being disclosed to the Receiving Party is disclosed by any other person to the Receiving Party otherwise than in breach of any obligation of confidentiality.
20.4. The Parties shall take such precautions as may be necessary to maintain the secrecy and confidentiality of such material and information, its shareholders, directors, employees, agents, and/or the directors or employees or agents of any assignee, sub-contractor or distributor or any other person to whom any such confidential or proprietary data may have been or will be disclosed. The Parties shall during the period of this Agreement and in perpetuity thereafter, and regardless of the reason for termination of this Agreement, not use for its own benefit or for the benefit of any other person, or divulge or communicate to any person or persons, except to the extent required by law, any of the confidential information which it may receive or obtain in relation to the other party’s affairs, clients, suppliers and service providers.
20.5. The Client shall not discuss the merits or demerits of Design.Create with its other suppliers, and Design.Create shall not discuss the merits or demerits of Client with its other clients.
21. Protection of Personal Information (“POPI”)
21.1. Design.Create will only Process or disclose Personal Data in accordance with applicable laws, in terms of these Terms and in accordance with any written instructions, requirements or specific directions from the Client.
21.2. Design.Create will ensure that all staff members of Design.Create and any other persons that has access to the Client’s Personal Data are bound by the appropriate legally binding obligations in relation to the Client’s Personal Data.
21.3. Design.Create will take appropriate, reasonable and technical measures to ensure that the integrity of the Client’s Personal Data in possession or under control of Design.Create is secure and the Client’s Personal Data in possession or under control of Design.Create remains available to the Client as and when the Client needs it.
22. Notification of Personal Data Security Breach
22.1. Design.Create will notify the Client immediately when upon becoming aware that the Personal Data of a Data Subject has been accessed or acquired by an unauthorised person and take all appropriate steps to limit the compromise of Personal Data and to restore the integrity of the affected information systems as quickly as possible. Design.Create will assist the Client to report all relevant facts relating to the compromise and provide the Client with details of the Personal Data affected by the compromise.
22.2. If Design.Create or any third-party to which the Personal Data has been disclosed pursuant to these Terms, is required by law, regulation or court order, to disclose or process any Personal Data, Design.Create will advise you thereof prior to disclosure or Processing.
22.3. Subject to clauses 15, 16 and 17, Design.Create will not transfer Personal Data provided by the Client outside the Republic of South Africa or United Arab Emirates unless the Client authorises such transfer in writing.
22.4. On condition that undertakings provided by Design.Create and if content was approved or assumed to have been approved by the Client and was actually implemented, presented, published and/or communicated by Design.Create in such approved format, Design.Create will not be liable for any loss or damage of whatsoever nature and howsoever arising, including but not limited to, loss of profit and direct, indirect, incidental, special or consequential loss or damage, whether arising under contract, delict or otherwise, which may be suffered or incurred by the Client or any third-party as a result of the provision of the Services in terms of these Terms.
22.5. Both Parties undertake to use Design.Create’s reasonable endeavours to procure that any of the other’s data operators (as defined in POPI), agents and contractors comply with the Data Protection Legislation and all other applicable data protection legislation and regulations about the performance of the others obligations and exercise of their rights under these Terms.
22.6. Both Parties undertake-
22.6.1. to treat the Personal Data as confidential information;
22.6.2. not to use or knowingly permit any third-party to use, or have access to, the Personal Data for any purpose other than as is expressly permitted by these Terms;
22.6.3. that Design.Create will not use Personal Data held by Design.Create pursuant to these Terms for any purpose that is inconsistent with those purposes notified to the relevant Data Subject on or before the time of collection of that Personal Data.
23. Retention & Destruction
23.1. Design.Create will store all Personal Data which it processes for the minimum time periods stipulated by POPI in writing and shall be required to destroy all Personal Data relating to the Data Subject in compliance with the destruction time periods stipulated by POPI.
24. Termination
24.1. Subject to 23.2 and 23.3 below, Design.Create or the Client may terminate the Agreement and/or Project Contract for any reason with one calendar months written notice will all amounts owing to Design.Create becoming immediately due and payable. Retainer fees shall be due in full for the intended month of given notice.
24.2. Design.Create and/or the Client shall have the right to terminate this Agreement immediately, with all amounts owing becoming immediately due and payable, and without notice, in the following circumstances:
24.2.1. if the other party commits any act of insolvency if committed by a natural person, would be an act of insolvency in terms of the Insolvency Act, 24 of 1936, as amended.
24.2.2. if the other party is placed under business rescue, curatorship, liquidation or under a winding-up order, whether provisionally or finally, voluntarily, or compulsorily.
24.2.3. if the other party takes any steps to be wound-up, liquidated or placed under business rescue whether provisionally or finally and whether compulsorily or voluntarily, other than any steps taken by such Party to be wound-up or liquidated pursuant to any bona fide restructuring where such Party remains solvent;
24.2.4. if the other party takes any steps to be deregistered in terms of the Companies Act 71 of 2008 (“Companies Act”);
24.2.5. if any affected person in relation to the other party, takes any steps in terms of Chapter VI of the Companies Act, and for this purpose “affected person” shall bear the meaning ascribed to this term in section 128(1)(a) of the Companies Act;
24.2.6. if the other party is unable to pay its debts;
24.2.7. if such party enters into or proposes any composition or arrangement with its creditors generally; and/or
24.2.8. if anything, analogous to the foregoing occurs in any applicable jurisdiction, which is not dismissed in 20 (twenty) days.
24.3. In the event that the Client “frustrates” the progress of the Project Contract with Design.Create then Design.Create will be entitled to give 14 days’ written notice to the Client of the Agreement being terminated. If the Client does not satisfactorily remedy the cause(s) of the frustration, within the 10 (ten) business day notice period, then Design.Create will have the right to terminate the Agreement. Design.Create will invoice the Client for the full value of the Services carried out to-date.
25. Breach
25.1. If a Party (the “Defaulting Party”) commits any material breach of these Terms and fails to remedy such breach within 10 (ten) Business Days, (the “Notice Period”) of written notice requiring the breach to be remedied, then the Party giving the notice (the “Aggrieved Party”) will be entitled, at its option:
25.1.1. claim immediate specific performance of all or any of the Defaulting Party’s obligations under these Terms, with or without claiming damages, whether or not such obligation is falling due for performance; or
25.1.2. cancel this Agreement as between itself and the Defaulting Party, with or without claiming damages, in which case written notice of the cancellation shall be given to the Defaulting Party, and the cancellation shall take effect on the date on which the notice is given. No party shall be entitled to cancel this Agreement unless the breach is a material breach going to the root of this Agreement, and:
25.1.2.1. is incapable of being remedied by payment of money; or
25.1.2.2. if it is capable of being remedied by a payment of money, the Defaulting Party fails to pay the amount concerned within the Notice Period.
26. Arbitration
26.1. Should any dispute arise between the Parties (“Dispute”) concerning the interpretation of this Agreement, or which relates to rights or obligations under this Agreement or any matter arising out of this Agreement in respect of a mechanism for the resolution of which is not provided for elsewhere in this Agreement, the Parties shall endeavour to resolve the Dispute by negotiation.
26.2. This shall entail one of the Parties inviting the other in writing to meet and to attempt to resolve the Dispute within 10 Business Days.
26.3. If the Dispute has not been resolved by such negotiation within 10 Business Days, then the Parties or any one of them shall submit the Dispute to mediation to be administered by the Federal Law No. 6 of 2018 on Arbitration, upon such terms as agreed between the Parties. The result of the mediation shall be the conclusion of a written settlement between the Parties, countersigned by the mediator, or failing that, a written recommendation by the mediator.
26.4. The written recommendation of the mediator shall become final and binding within 10 Business Days of delivery thereof to the Parties, unless any of the Parties disputes the mediator’s recommendation by written notice to the other Parties within the aforesaid 10 Business Day period, in which event the Dispute shall be referred to arbitration in accordance with the provisions below.
26.5. Failing agreement as referred to above or in the event of either of the Parties furnishing a notice of dispute of within 10 Business Days of the mediator’s recommendation as envisaged above, the Dispute shall be submitted to arbitration by either party for final resolution in accordance with the rules of this federal law by an arbitrator appointed by the Dubai government, whose decision shall be final and binding.
26.6. Unless otherwise agreed in writing by all the Parties, any such mediation or arbitration shall be held at a venue as agreed between the parties
26.7. Any written settlement agreement, undisputed mediator’s written recommendation or arbitrator’s award may be made an order of the High Court.
26.8. Notwithstanding anything to the contrary contained in this clause 18, any party shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent Court having jurisdiction. For the purposes of this clause and for the purposes of having any settlement, undisputed mediator’s recommendation or arbitrator’s award made an order of Court, each of the Parties hereby submits themselves to the High Court.
26.9. An undisputed mediator’s recommendation and an arbitrator’s award shall not be capable of appeal or review and shall be final and binding. In the event that a dispute between the parties is no resolved by negotiation then it shall be resolved by arbitration.
27. Non-solicitation
27.1. Unless otherwise agreed in writing between the Parties, no Party shall, for the duration of the Agreement and for a period of 12 (twelve) months after the expiration or termination thereof, for its own benefit or as a representative of, or agent for, any third party, persuade, induce, encourage, procure, or solicit (or procure such persuasion, inducement, encouragement, procurement or solicitation) the employees of the other Party to:
27.1.1. terminate his/her employment with the other Party with the intention to provide employment to said employee; or
27.1.2. disclose any Intellectual Property of the other Party to any person not authorised by the owner of the Intellectual Property to receive it.
27.2. Design.Create undertakes either during, or after termination of, this Agreement, not to engage, market to, encourage, induce or otherwise solicit, whether directly or indirectly, any person who, at any time during the duration of this Agreement, was a Customer without the prior written consent of the Client. Notwithstanding the foregoing, Design.Create agrees that all information pertaining to the Client is the Client’s Confidential Information, and therefore any use by Design.Create of such information in a manner not authorised by this Agreement shall constitute a breach by the Design.Create of the provisions of these Terms.
28. Domicilium & Notices
28.1. The Client chooses the physical address and e-mail address inserted in the Service Level Information Document as its domicilia citandi et executandi for all purposes arising from or pursuant to these Terms.
28.2. Design.Create chooses as their domicilia citandi ex executandi for all purposes arising from or pursuant to these Terms as follows:
28.2.1. Address: Villa 649, Hayat Townhouses, Town Square, Dubai, UAE, 00000
28.2.2. E-mail: caryn@designcreate.me
28.3. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing.
28.4. A party shall be entitled to change its domicile address from time to time, by way of written notice to the others specifying its new domicile address provided always, however, that the new address is within the United Arab Emirates and is not a post office or post restante address.
28.5. Any notice to a party:
28.5.1. sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its domicile address shall be deemed to have been received on the 5th Business Day after posting (unless the contrary is proved)
28.5.2. delivered by hand to a responsible person during ordinary business hours at its domicilium address shall be deemed to have been received on the day of delivery;
28.6. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium address.
29. Liability
29.1. Design.Create disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client uses such Services at your own risk.
29.2. The Client understands and agrees that Design.Create will not be able to guarantee a specific set of results and there is accordingly no warranty as to fitness for purpose.
29.3. Design.Create will not be liable for any loss or damages arising, whatever the cause, in accordance with these Terms.
29.4. Should Design.Create be found to be liable to you for a particular act or omission then Design.Create liability will be limited to fees already paid by you on the Project Contract forming the subject of the dispute.
30. Indemnity
30.1. The Client hereby indemnifies Design.Create from any loss, damage (either general, special or consequential), liability, claim, expense, costs or demand which may arise due the Client’s unlawful conduct, wilful misconduct and / or gross negligence.
30.2. You indemnify and will keep Design.Create indemnified against any claim for infringement of intellectual property rights regarding any information given by you to Design.Create and against all costs, expenses and damages Design.Create may incur or become liable for because of such infringement.
30.3. Design.Create will inform you, in writing, as soon as Design.Create have been made aware of any claim being made or action threatened or brought against Design.Create and will allow the Client, at the Client’s own expense, to continue with any litigation or negotiations that may follow for a settlement of the claim.
31. Force Majeure
31.1. If either Party is prevented or restricted from carrying out all or any of their obligations under these Terms because of a strike, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, shortage or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labours government interference (“the event”), the Party who is affected by this event will be relieved of their obligations under these Terms during the time the event carries on and shall not be liable for any delay or failure in the performance of any obligations under these Terms or loss or damage either general, special or consequential which the other Party may suffer due to the event.
31.2. Once the event has ended the Party who is affected by the event must give notice to the other Party that such event has ended. Should the event continue for a period of more than 90 (ninety) days, the other Party will be allowed to immediately cancel these Terms.
32. General
32.1. These Terms shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the laws of Dubai, UAE.
32.2. These Terms constitutes the whole Agreement between the Parties relating to the subject matter hereof and supersedes all other discussions, agreements and/or understandings regarding the subject matter hereof.
32.3. No amendment or consensual cancellation of these Terms or any provision hereof, and no settlement of any disputes arising out of these Terms, and no extension of time, waiver or relaxation or suspension of or agreement not to enforce or to suspend or postpone the enforcement of any of the provision of these Terms, shall be binding unless first recorded in writing and signed by the Parties.
32.4. Any provision in these Terms which is or may become illegal, invalid or unenforceable, shall be ineffective to the extent of such prohibition or unenforceability and shall be treated as if it had not been drafted and severed from the balance of these Terms, without invalidating the remaining provisions of these Terms.
32.5. The rights and obligations in these Terms may not be ceded or assigned without the prior written permission of the Parties.
Website Agreement Between User and Design.Create
The Design.Create Website is comprised of various Web pages operated by Design.Create.
The Design.Create Website is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. Your use of the Design.Create Website constitutes your agreement to all such terms, conditions, and notices.
Modification of these Terms of Use
Design.Create reserves the right to change the terms, conditions, and notices under which the Design.Create Website is offered, including but not limited to the charges associated with the use of the Design.Create Website.
Links to Third Party Sites
The Design.Create Website may contain links to other Websites (“Linked Sites”). The Linked Sites are not under the control of Design.Create and Design.Create is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. Design.Create is not responsible for webcasting or any other form of transmission received from any Linked Site. Design.Create is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Design.Create of the site or any association with its operators.
No Unlawful or Prohibited Use
As a condition of your use of the Design.Create Website, you warrant to Design.Create that you will not use the Design.Create Website for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Design.Create Website in any manner which could damage, disable, overburden, or impair the Design.Create Website or interfere with any other party’s use and enjoyment of the Design.Create Website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Design.Create Websites.
Use of Communication Services
The Design.Create Website may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, “Communication Services”), you agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. By way of example, and not as a limitation, you agree that when using a Communication Service, you will not:
Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information.
Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
Upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer.
Advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages.
Conduct or forward surveys, contests, pyramid schemes or chain letters.
Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
Restrict or inhibit any other user from using and enjoying the Communication Services.
Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
Harvest or otherwise collect information about others, including e-mail addresses, without their consent.
Violate any applicable laws or regulations.
Design.Create has no obligation to monitor the Communication Services. However, Design.Create reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion. Design.Create reserves the right to terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever.
Design.Create reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Design.Create’s sole discretion.
Always use caution when giving out any personally identifying information about yourself or your children in any Communication Service. Design.Create does not control or endorse the content, messages or information found in any Communication Service and, therefore, Design.Create specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized Design.Create spokespersons, and their views do not necessarily reflect those of Design.Create.
Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination. You are responsible for adhering to such limitations if you download the materials.
Materials provided to Design.Create or Posted at any Design.Create
Website
Design.Create does not claim ownership of the materials you provide to Design.Create (including feedback and suggestions) or post, upload, input or submit to any Design.Create Website or its associated services (collectively “Submissions”). However, by posting, uploading, inputting, providing or submitting your Submission you are granting Design.Create, its affiliated companies and necessary sublicensees permission to use your Submission in connection with the operation of their Internet businesses including, without limitation, the rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your Submission; and to publish your name in connection with your Submission.
No compensation will be paid with respect to the use of your Submission, as provided herein. Design.Create is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Design.Create’s sole discretion.
By posting, uploading, inputting, providing or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.
Liability Disclaimer
The information, software, products, and services included in or available through the Design.Create website may include inaccuracies or typographical errors. Changes are periodically added to the information herein. Design.Create and/or its suppliers may make improvements and/or changes in the Design.Create website at any time. Advice received via the Design.Create website should not be relied upon for personal, medical, legal or financial decisions and you should consult an appropriate professional for specific advice tailored to your situation.
Design.Create and/or its suppliers make no representations about the suitability, reliability, availability, timeliness, and accuracy of the information, software, products, services and related graphics contained on the Design.Create website for any purpose. To the maximum extent permitted by applicable law, all such information, software, products, services and related graphics are provided “as is” without warranty or condition of any kind. Design.Create and/or its suppliers hereby disclaim all warranties and conditions with regard to this information, software, products, services and related graphics, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.
To the maximum extent permitted by applicable law, in no event shall Design.Create and/or its suppliers be liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the use or performance of the Design.Create website, with the delay or inability to use the Design.Create website or related services, the provision of or failure to provide services, or for any information, software, products, services and related graphics obtained through the Design.Create website, or otherwise arising out of the use of the Design.Create website, whether based on contract, tort, negligence, strict liability or otherwise, even if Design.Create or any of its suppliers has been advised of the possibility of damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you. If you are dissatisfied with any portion of the Design.Create website, or with any of these terms of use, your sole and exclusive remedy is to discontinue using the Design.Create website.
Termination/Access Restriction
Design.Create reserves the right, in its sole discretion, to terminate your access to the Design.Create Website and the related services or any portion thereof at any time, without notice.
General
To the maximum extent permitted by law, this agreement is governed by the laws of the State of Washington, U.S.A. and you hereby consent to the exclusive jurisdiction and venue of courts in King County, Washington, U.S.A. in all disputes arising out of or relating to the use of the Design.Create Website. Use of the Design.Create Website is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Design.Create as a result of this agreement or use of the Design.Create Website.
Design.Create’s performance of this agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of Design.Create’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Design.Create Website or information provided to or gathered by Design.Create with respect to such use. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. Unless otherwise specified herein, this agreement constitutes the entire agreement between the user and Design.Create with respect to the Design.Create Website and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between the user and Design.Create with respect to the Design.Create Website. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this agreement and all related documents be drawn up in English.
Copyright and Trademark Notices:
All contents of the Design.Create Website are Copyright. All rights reserved.
Trademarks
The names of actual companies and products mentioned herein may be the trademarks of their respective owners.
The example companies, organizations, products, people and events depicted herein are fictitious. No association with any real company, organization, product, person, or event is intended or should be inferred.
Any rights not expressly granted herein are reserved.
Notices and Procedure for Making Claims of Copyright Infringement
Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to Service Provider’s Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement.