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Privacy Policy

  1. INTRODUCTION
    1. This privacy policy is issued on behalf of the BrandsEye Group.
    2. The BrandsEye Group is made up of different legal entities, including BrandsEye (Pty) Ltd and BrandsEye Consulting (Pty) Ltd (both of which are incorporated in South Africa) and BrandsEye Limited (incorporated in England and Wales). When we mention "BrandsEye", "we", "us" or "our" in this privacy policy, we are referring to the relevant company in the BrandsEye Group responsible for processing your data.
    3. In this policy, reference to “Data Protection Laws” means any statutes, laws, legislation, or regulations or binding policy, code of any government authority that relates to the security and protection of personally identifiable information, data privacy, trans-border data flow or data protection in force from time to time in the Republic of South Africa, including but not limited to POPIA, Electronic Communications and Transactions Act 25 of 2002, Promotion of Access to Information Act 2 of 2002, and/or any equivalent legislation of other jurisdiction(s) where Personal Information is being processed or where a party is obliged to comply with, including, where applicable, EU Data Protection Laws [General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of national persons with regard to the Processing of Personal Data and on the free movement of such data, as amended, replaced or superseded from time to time.
    4. In this policy, the use of any word or expression, or terms or process of definition in this policy which has its meaning derived from the Protection of Personal Information Act 4 of 2003 (“POPIA”), including but not limited to “Personal Information”, “Responsible Party”, “Data Subject”, “Personal Information Breach”, “Information Regulator”, will be construed to mean the corresponding word or expression or term or process or definition which has its meaning derived from GDPR or any applicable Data Protection Laws, such as “personal data”, “controller", “data processor”, “process” / “processing”, “data subject”, sub-processor”, personal data breach”, supervisory authority”, ‘commission”, “member state”.
    5. We collect information, content and communications that you, a Data Subject and an “author” provide or share via a social media platform, blog, forum and/or news site. Some of this information can be personal data/information (“Personal Information”). As an example, your name in connection with the user name of your Facebook or Twitter profile along with the profile picture is set to public on your user profile privacy settings. Through rendering Services to our customers we may also gain access to our customer’s “Direct Messages” (i.e. the messages sent by Data Subjects to our customers using the channels provided or made available by the customers to us (such as, inter alia, social media platforms, bots or artificial intelligence, email or SMS). As an author, you are the source of the data and have control under the user profile privacy settings of each platform you interact with and can at any time restrict any of this information appearing in the public domain in accordance with the terms of the relevant platform. You may also restrict access to Direct Messages through the setting on the relevant platform. As an author, and under current Data Protection Laws and in addition to whatever rights you have via your relationship with any publishing platform, you also have certain rights relating to your data that we collect, process, store and retain, as set out in this policy.
    6. We are a data controller of your Personal Information. This means that we are responsible for deciding how we hold and use Personal Information about you. We aim at all times to be transparent about how we use your data and Personal Information, and to comply with applicable Data Protection Laws in making you aware of the information contained in this policy.
    7. We do not circumvent any of the personal privacy settings on any of the platforms and/or suppliers from where we collect data. Our system is intended for and focused on publicly available information and/or information that our customers have given us access to and/or have sent directly to us, such as Direct Messages.
    8. This policy will inform you about what data we collect from our data suppliers, including but not limited to various social platforms, with whom we have direct relationships for purposes of our business, how we use such data, circumstances where we may disclose this data to others, and how we keep it secure.
    9. In this policy “Services” means all services offered and/or rendered by us from time to time, to our customers, which includes providing technology and services for data processing and analysis to determine relevant, sentiment, topics and themes related to our customers’ brands, business and research interests. An integral element of the Services includes the crowd-sourced “Mention” processing service run via our platform in terms of which individuals who are registered as members of the “Crowd” (each known as a Contributor) analyse data provided to them by us and in doing so select the most applicable values for a particular Mention’s attributes that are requested by us. In this policy “Mentions” means any search results or snippets of information provided by us and which are monitored, assessed and/or analysed by such Contributors as part of the Services provided to our customers.
    10. Any questions relating to this policy and our privacy practices should be sent to us using the contact details set out below.
  2. THE INFORMATION WE COLLECT
    1. We may collect, use, store and transfer different kinds of information which you post or make publicly available online and/or via Direct Messages, including but not limited to the following platforms and sources:
      • Facebook;
      • Instagram;
      • Twitter;
      • Linkedin;
      • Youtube;
      • Vkontakte;
      • Blogs & Blog comments;
      • Mainstream news sources; and
      • Forums.
      Together referred to as “Social Media Platforms” within this policy.
    2. Such information/data may include:
      • Your name, username, handle, or other identifier;
      • The name, username, handle or other identifier of Contributors forming part of the “Crowd”;
      • The content of the information you have published via that name, username, handle, or other identifier, including comments, expressions, opinions, posts, preferences, beliefs etc.
      From the content of these above, we can sometimes infer sensitive information such as sexual orientation, race, gender etc.
      • Your profile picture or other images or videos that you post or interact with;
      • Your approximate location;
      • The content of your posts on Social Media Platforms, including your opinions, preferences and beliefs;
      • Your non-private communications with other users of Social Media Platforms on such Social Media Platforms; and
      • Any other information you publicly or directly provide to us or post on Social Media Platforms and/or information that you provide directly to our customers and which they may disclose to us, including but not limited to Direct Messages.
    3. The data that we collect (as set out above) will be referred to as “Social Data” throughout this policy.
    4. We also collect, use and share Aggregated Data such as: (i) statistical data; (ii) demographic data; and (iii) data which, if it were not anonymised, would constitute special categories of personal data, including data relating to health, political opinions and religious or philosophical beliefs, but which is anonymised and aggregated. Aggregated Data may be derived from your Social Data but is not considered personal data in law as this data will not directly or indirectly reveal your identity. For example, we may aggregate your data to calculate a political opinion, sentiment towards a specific brand or customer experience values in a specific industry or sector. However, if we combine or connect Aggregated Data with your Social Data so that it can directly or indirectly identify you, we treat the combined data as Personal Information which will be processed in accordance with this privacy policy and all applicable Data Protection Laws.
    5. We do not knowingly collect or share:
      • except in the form of Aggregated Data (please see comments at paragraph 2.4 above), any Special Categories of Personal Data about you (this includes details about your race or ethnicity, religious or philosophical beliefs, sex life, sexual orientation, political opinions, trade union membership, information about your health, and genetic and biometric data);
      • any information about criminal convictions and offences.; or
      • any information relating to children under the age of 13.
    6. We are committed to respecting the privacy of children online. If we learn that our systems have inadvertently collected information relating to children under the age of 13, we will promptly delete the information, notify the necessary customer representatives to facilitate a consultation on how this data was collected and put measures in place for it not to happen again.
  3. HOW WE COLLECT, PROCESS, AND STORE YOUR DATA
    1. We collect and process your Social Data in the following ways:
      • Our Services entail the collection, processing and storage of public information either directly from the social media platform and/or from third party suppliers such as blogs, forums and news sites, who collect public online data, and also your Direct Messages.
      • We process data using a proprietary mix of algorithms and crowd sourcing to determine relevance, sentiment, topics and themes.
      • All data collected by us is stored in the EEA and we do not transfer the Social Data outside of the EEA, unless we have put adequate safeguards in place to protect your personal information and to make sure it is treated securely in accordance with Data Protection Laws.
  4. WHY WE NEED THIS INFORMATION ABOUT YOU
    1. We use your Social Data we collect about you to:
      • Provide social media analytics and customer insights to our customers.
      • We will only process your Social Data when we have legal grounds to do so. Generally, we rely on the legal ground which allows us to use your Social Data where it is necessary for our legitimate interests (or those of a third party such as our customers) and your interests and fundamental rights do not override those interests.
      • Our legitimate interests for processing data are in order to provide our Services to our customers, which include providing technology and related services that empowers our customers to act with more certainty, with objectives that may include but are not limited to improving that customer’s own services or products to its end users. Our Services allow our customers to learn more about their brand, their customers, their competitors, and other information available on the internet that may be relevant to our customers.
      • We also use the data in related or ancillary ways, to the Services that we offer. For example, we may use the data to comply with our legal obligations or enforce our rights, including the legal obligations or enforcement of rights of third parties. We may also use the data to improve our Services.
    2. Although it is the responsibility of our customers to use our Services properly and we cannot ultimately bear responsibility for our customer’s use of our platform or system, we have implemented adequate safeguards to protect your data. Through contracts with our customers, we require our customers to comply with applicable law, including Data Protection Laws, when using our Services and our customers agree to abide by the policies of third party websites. We also prohibit our customers from using our Services, including your Data, in a way that is outside of your reasonable expectations.
    3. When we infer Data about you, we do so in two ways:
      • Based on algorithms that analyse the data that you have posted on a platform/s or sent via Direct Messages, and
      • Through the BrandsEye Crowd, the content of individual posts are assessed by members of the BrandsEye Crowd (“Contributors”) to determine relevance, sentiment, topics and/or themes.
    4. We do not make any decisions about you based on the data that we process about you (inferred or not). In other words, we only make the data available to our customers. It is up to our customers what (if anything) to do with the data and any inferences about the data.
  5. SHARING OF YOUR DATA
    1. In addition to sharing your data with our customers, we may share your data with any member of our company group (i.e. our subsidiaries, parent companies, and affiliates).
    2. We may share your data with selected third parties, including our business partners, suppliers, contributors/crowd and sub-contractors, for the performance of any contract we enter into with them. We may also share your data with analytics and search engine providers that assist us in the improvement of our website and systems.
    3. We may also disclose your data to other third parties. For example, if we sell or buy any business or assets, we may disclose your data to the prospective seller or buyer of such business or assets. Alternatively, if we or substantially all of our assets are acquired by a third party, your data may be part of the transferred assets.
    4. If any third party processes any of your data, we ensure there are sufficient contractual and operational safeguards protecting your data.
    5. In respect of your Social Data, we will not:
      • sell, licence or purchase any data obtained from Social Media Platforms;
      • directly or indirectly transfer any of your Social Data (including anonymous, aggregate, or derived data) to any ad network, data broker or other advertising or monetization-related service;
      • use your Social Data to make decisions about eligibility, including whether to approve or reject an application or how much interest to charge on a loan;
      • put your Social Data in a search engine or directory, or include web search functionality on our apps on Social Media Platforms;
      • prefill any content in captions, comments, messages or the user message parameter of posts;
      • proxy, request or collect your usernames or passwords for Social Media Platforms;
      • transfer your c Social Data to a data broker or sell your Social Data;
      • share your user IDs for Social Media Platforms with service providers who build or run any of our apps. Your user IDs for Social Media Platforms will be kept secure and confidential; and/or
      • use friends or connections data from Social Media Platforms to establish social connections in our apps, unless you have granted you access to that information
    6. In respect of the Social Data, we will:
      • promptly delete all your Social Data that we have received from a particular Social Media Platform if we stop collecting data from such Social Media Platform; and
      • comply with all applicable laws and regulations in the jurisdiction where our apps are available.
    7. We are not accountable for the faulty practices deployed by third party websites or Social Media Platforms.
  6. DATA SECURITY
    1. We have put in place appropriate security measures to prevent your Social Data from being accidentally lost, used or accessed in an unauthorised way, altered or disclosed. In addition, we limit access to your Social Data to those employees, agents, contractors and other third parties who have a business need to know. They will only process your Social Data on our instructions and they are subject to a duty of confidentiality.
  7. DISCLOSURE OF PERSONAL DATA
    1. We will:
      • use your Social Data in accordance with this privacy policy and any applicable policies imposed by Social Media Platforms.
      • use your name, current city and profile picture URL in accordance with this privacy policy and policies of any Social Media Platforms.;
      • treat your information as confidential. However, we may disclose your Social Data to other third parties for the purposes set out below or for any additional purposes approved by you:
        • Our customers as part of our Services but in accordance with terms agreed with our customers which includes provision to comply with Data Protection Laws;
        • Internal Third Parties: Other companies in the BrandsEye group of companies analysis and/or improvement of our system and Services.
        • BrandsEye Crowd: For purposes of post sentiment and topic annotation which forms part of our Services, we may share your data with the BrandsEye Crowd which is a group of members who have fulfilled our specific selection criteria and who are contractually bound by BrandsEye’s policies and procedures which align with Data Protection Laws.
        • BrandsEye Crowd: For purposes of registering Contributors as Crowd members, we collect their Registration Data, which may include Personal Information.
        • Service Providers: service providers who provide IT, hosting and systems administration services.
        • Professional Advisors: professional advisors, including lawyers, bankers, auditors and insurers who provide consultancy, banking, legal, insurance and accountancy services,
        • Authorities: HMRC, regulators and other authorities,
        • Joint Venture Parties: if our organisation enters into a joint venture with or is sold to or merged with another organisation, your information may be disclosed to our new business partners or owners.
    2. We require all third parties, including specifically our customers to respect the security of your Social Data and to treat it in accordance with Data Protection Laws.
  8. TRANSFERS OUTSIDE THE EEA
    1. Other companies in the BrandsEye group of companies which are based in South Africa and Dubai process data inside the BrandsEye system and platform with the data remains at all times in our data centre which is based in Germany (within the EEA).
    2. Many of our external third parties, such as customers and crowd members are based outside the European Economic Area (EEA). The data remains on our system, and is only accessible through our platform or app.
    3. In the event of us transferring your Social Data out of the EEA, we would ensure a similar degree of protection is afforded to such data by ensuring at least one of the following safeguards is implemented:
      • We will only transfer your Social Data to countries that have been deemed to provide an adequate level of protection for personal data by the European Commission (Please click here for further information);
      • Where we use certain service providers, we may use specific contracts approved by the European Commission which give personal data the same protection it has in Europe (Please click here for further information); and/or
      • Where we use providers based in the US, we may transfer data to them if they are part of the Privacy Shield which requires them to provide similar protection to personal data shared between the Europe and the US (Please click here for further information).
    4. We do not transfer the Social Data outside the EEA.
  9. HOW LONG WE WILL KEEP YOUR INFORMATION
    1. We review our data retention periods regularly and will only hold your Social Data for as long as is necessary for the relevant activity, or as required by law (we may be legally required to hold some types of information). However, if you request that we delete your data, we will delete your data from our system, provided it is not in contravention of any laws or current legislation.
    2. Details of retention periods for different aspects of your Personal Data are available in our retention policy are available by contacting us using the details provided below. To determine the appropriate retention period for Personal Data, we consider the amount, nature, and sensitivity of the Personal Data, the potential risk of harm from unauthorised use or disclosure of your Personal Data, the purposes for which we process your Personal Data and whether we can achieve those purposes through other means, and the applicable legal requirements.
  10. YOUR RIGHTS
    1. Under Data Protection Laws, you have the following rights in connection with your Social Data, which can be exercised in certain circumstances:
      • Request access to your Personal Data (commonly known as a “data subject access request”). This enables you to receive a copy of the personal information we hold about you and to check we are lawfully processing it;
      • Request correction of the Personal Data that we hold about you. This enables you to have any incomplete or inaccurate information we hold about you corrected;
      • Request erasure of your Personal Data. This enables you to ask us to delete or remove Personal Information where there is no good reason for us continuing to process it. You also have the right to ask us to delete or remove your Personal Data where you have exercised your right to object to processing (see below);
      • Object to processing of your Personal Data where we are relying on a legitimate interest (or those of a third party). You also have the right to object where we are processing your Personal Data for direct marketing purposes;
      • Request the restriction of processing of your Personal Data. This enables you to ask us to suspend the processing of Personal Information about you, for example if you want us to establish its accuracy or the reason for processing it;
      • Request the transfer of your Personal Data to another party. We will provide to you, or a third party you have chosen, your Social Data in a structured, commonly used, machine-readable format; and
      • Withdraw your consent where we are relying on consent to process your Personal Data. However, this will not affect the lawfulness of any processing carried out before you withdraw your consent. If you withdraw your consent, we may not be able to provide certain products or services to you.
    2. If you would like to exercise any of your rights above, please contact us at privacy@brandseye.com and provide us with your full details (including name, telephone number, address and email and the precise nature of your request and/or grievance.
    3. You also have the right to make a complaint at any time to the supervisory authority for data protection issues in the country where you live, where you work or where the issue took place, relating to our use of your information.
  11. CHANGES TO OUR PRIVACY POLICY
    1. Any changes we make to our privacy policy in the future will be posted on our website and, where appropriate, displayed on our premises notified to you by e-mail.
  12. CONTACT US
    1. We have appointed Cecil Wehmeyer as our data protection representative who is responsible for overseeing questions in relation to this privacy notice. If you have any questions about this privacy notice, including any requests to exercise your legal rights, please contact Cecil Wehmeyer using the details set out below:

      Data Protection Representative: Cecil Wehmeyer

      Email address: privacy@brandseye.com

      Postal Address:
      2nd Floor
      97 Durham Avenue
      Salt River
      Cape Town
      7700
      South Africa

BrandsEye Terms and Conditions

  1. DEFINITIONS
    1. “Agreement” means this agreement between BrandsEye Consulting and the Client, incorporating both the Order Form and any annexures thereto as well as the terms and conditions set out in this document.
    2. “BrandsEye” means BrandsEye (Pty) Ltd (Registration Number 2011/000295/07), who the Parties acknowledge is the owner and licensor of the BrandsEye Proprietary Materials and the BrandsEye Products.
    3. “BrandsEye Analyse” means the BrandsEye online monitoring software product, as more fully described in Annexure A to the Order Form, and as may be modified, updated, upgraded or revised by BrandsEye from time to time.
    4. “BrandsEye API” means the BrandsEye application programming interface, as modified, updated, upgraded or revised by BrandsEye from time to time.
    5. “BrandsEye Consulting” means BrandsEye Consulting (Pty) Limited (Registration Number 2015/239183/07), who is the licensee of the BrandsEye Proprietary Materials and BrandsEye Products and the service provider party in terms of this Agreement;
    6. “BrandsEye Engage” means the BrandsEye Product, as more fully described in Annexure A to the Order Form and as modified, updated or revised by BrandsEye from time to time.
    7. “BrandsEye Explore” means the BrandsEye Product, as more fully described in Annexure A to the Order Form and as modified, updated or revised by BrandsEye from time to time.
    8. “BrandsEye Products” means those BrandsEye products which are offered by BrandsEye Consulting to the Client in terms of this Agreement, as more fully described in Annexure A to the Order Form and which may include BrandsEye Analyse, BrandsEye Explore, BrandsEye Engage and any other services and/or products that BrandsEye Consulting may from time to time provide to the Client.
    9. “BrandsEye Proprietary Materials” includes all websites, programmes, software, source codes, methodologies, products, data, documents and any other materials licensed to BrandsEye Consulting by BrandsEye in order to provide the Services (including without limitation, the BrandsEye Products and BrandsEye API, where applicable).
    10. “Client” means the person, firm or company whose name appears on the Order Form, who has engaged BrandsEye Consulting to render the Services.
    11. “Client Data” means any information furnished to BrandsEye Consulting by the Client which is or is intended to be processed by computer or manually, to be analyzed, viewed and assessed by BrandsEye Consulting and which specifically includes but may not be limited to Personal Information, but which excludes Raw Data or Public Data collected by BrandsEye Consulting and/or the Client in provision of the Services and/or through the BrandsEye API;
    12. "Commencement Date" means the date stipulated in the Order Form being the date on which the Services will commence.
    13. “Contributors” means the various individuals engaged by BrandsEye to utilise the BrandsEye “crowd” platform for purposes of analysing and processing the relevant Mentions content provided to them by BrandsEye (e.g. mentions made by members of the public about the Client and/or about the Client’s competitors), in order that the Enriched Data and/or reports provided to the Client are comprehensive and contain useful insights suited to the Client’s requirements (as communicated by the Client to BrandsEye Consulting, from time to time).
    14. “Data” means any data supplied, stored, collected, collated, accessed or processed by or for the benefit of the Client, including personal information or personal data as defined under the Data Protection Laws, in South Africa and any other jurisdiction where the Services are provided.
    15. “Data Protection Laws” means any statutes, laws, legislation, or regulations or binding policy, code of any government authority that relates to the security and protection of personally identifiable information, data privacy, trans-border data flow or data protection in force from time to time in th Republic of South Africa, including but not limited to The Protection of Personal Information Act of 2013 (“POPIA”), Electronic Communications and Transactions Act 25 of 2002, Promotion of Access to Information Act 2 of 2002, and/or any equivalent legislation of other jurisdiction(s) where Personal Information is being processed or where a party is obliged to comply with, including, where applicable, EU Data Protection Laws [General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of national persons with regard to the Processing of Personal Data and on the free movement of such data, as amendmed, replaced or superseded from time to time;
    16. “Data Subject” has the meaning ascribed to it in POPIA to whom the specific Personal Information relates;
    17. “Deliverables” shall mean the outcome of the Services delivered to the Client by BrandsEye Consulting, namely the insights analysis and may also include analyst reports (if set out in the Order Form), but in all instances excludes the Raw Data which is being reported on and/or analysed itself and the Enriched Data (which is subject to a licence in terms of clause 9).
    18. “Direct Message/s” means the messages sent by customers of the Client and other individuals directly to the Client using the channels provided or made available by the Client for such purpose (such as, inter alia social media platforms, bots or artificial intelligence, email or SMS).
    19. “Enriched Data” means Raw Data (and more specifically the Mention) that has been analysed by the Contributors, the purpose of which is to enrich the Raw Data in accordance with the Client’s requirements as specified in the Order Form.
    20. “Essentials” means the product tier of BrandsEye Consulting that refers to the sourcing of the Raw Data, which includes a relevance check;
    21. “Group” means any holding, subsidiary and/or affiliated companies of BrandsEye Consulting, which includes BrandsEye (Pty) Ltd (both of which are incorporated in South Africa) and BrandsEye Limited (incorporated in England and Wales);
    22. “IP Rights” means all patents, copyrights, design rights, trade marks, service marks, trade secrets, trade, business and domain names, rights in trade dress or get-up, rights in designs, 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.
    23. “Mentions” means any individual comment by an individual author related to the Client (or its competitors, as the case may be) which are monitored, assessed and/or analysed as part of the Services.
    24. “Order Form” means the order form between the Client and BrandsEye Consulting describing, inter alia, the Services, the term of this Agreement, the Client’s information, and the applicable fees payable by the Client to BrandsEye Consulting, in respect of the Services.
    25. “Parties” means the Client and BrandsEye Consulting and “Party” means either one of them as the context requires.
    26. “Personal Data” or “Personal Information” means data/information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to –
      1. information relating to the race, gender, sex, pregnancy, marital status, national, ethic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
      2. information relating to the education or the medical, financial, criminal or employment history of the person;
      3. any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to the person;
      4. the blood type or any other biometric information of the person;
      5. the personal opinions, views or preferences of the person;
      6. correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or
      7. further correspondence that would reveal the contents of the original correspondence;
      8. the views or opinions of another individual about the person; and
      9. the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.
    27. “Public Data” means information which is generally available to the public and which may be collected by BrandsEye Consulting and/or any information furnished to BrandsEye Consulting by the Client which is or is intended to be processed by computer or manually, to be analyzed, viewed and assessed by BrandsEye Consulting, and which is not protected from disclosure to third parties.
    28. “Raw Data” means data relating to the Client and/or Mentions that BrandsEye Consulting collects from public sources such as Twitter, Instagram, Facebook, YouTube, LinkedIn, online press sites, blogs and forums which Raw Data is then analysed by BrandsEye Consulting as part of the Services and may include Direct Messages.
    29. “Sentiment” means the positive, negative or neutral sentiment towards the relevant brand, as determined by BrandsEye;
    30. “Sentiment Analysis” refers to the process used by BrandsEye using its analytics tool “Analyse” which uses a combination of crowd sourced human intelligence (in the form of Contributors) and artificial intelligence to understand the Sentiment of authors on social media;
    31. “Segments” means, depending on the context, the stage of the customer journey, the customer channel, the risk factor, or some other bounded set of classifications associated to the relevant Mentions as derived by the Contributors.
    32. “Services” means the services to be provided (and, to the extent applicable, the BrandsEye Products to be delivered) to the Client by BrandsEye Consulting, as stipulated in the Order Form.
    33. “Social Media User Engagement” refers to access to BrandsEye’s ticketing and priority tool known as BrandsEye Engage, which allows BrandsEye’s Consulting’s clients to respond to queries, comments or questions from the public through social media channels;
    34. “Topics” means the topic associated to the relevant Mentions as derived by the Contributors, based on the data sample size variations and parameters that are automatically set by BrandsEye’s system.
  2. BASIS OF AGREEMENT
    1. The Client has engaged BrandsEye Consulting to provide the Services stipulated in the Order Form and to be rendered in accordance with the terms of this Agreement.
    2. The Agreement constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of BrandsEye Consulting which is not set out in this Agreement.
    3. This Agreement applies to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, in respect of BrandsEye Consulting’s provision of the Services.
    4. The Client acknowledges and accepts that BrandsEye is the owner and licensor of the BrandsEye Proprietary Materials and BrandsEye Products which are under licence to BrandsEye Consulting, and that certain undertakings and benefits of this Agreement are given in favour of both BrandsEye Consulting and BrandsEye. The Parties agree that where any provision of this Agreement constitutes a stipulatio alteri (stipulations for the benefit of a third party) in favour of BrandsEye, BrandsEye shall be entitled at any time to accept such benefit on written notice to the Parties, notwithstanding that BrandsEye is not a party to this Agreement and that BrandsEye shall have no liability to the Client in terms of this Agreement.
    5. Except to the extent otherwise stated in the Order Form, any estimate, offer or quote contained in the Order Form shall only be valid for a period of 30 days from its date of issue.
    6. This Agreement will continue to bind the Client and BrandsEye Consulting until the expiry or termination date stipulated in the Order Form, unless terminated earlier in accordance with the terms of this Agreement. Those provisions that are intended to survive the termination of the Agreement will continue to be effective.
  3. PROVISION OF SERVICES AND USE OF BRANDSEYE PRODUCTS
    1. Subject to the disclosures in clause 3.11, BrandsEye Consulting shall supply the Services with due care, skill and diligence and from the Commencement Date for the period specified in the Order Form, unless terminated earlier in accordance with this Agreement (“the Term”).
    2. The Order Form will stipulate the applicable BrandsEye Product and also whether or not the BrandsEye API is included. Reference to the BrandsEye API in these Terms and Conditions shall only apply to the Client to the extent that the BrandsEye API is applicable to that Client. In certain instances, the Client may, after the Commencement Date, request that BrandsEye API access be included, in which event, those provisions relating the BrandsEye API shall then automatically apply.
    3. BrandsEye Consulting further grants to the Client a non-exclusive, limited, non-assignable, non-transferable sub-licence to use the BrandsEye Products (as specified in the Order Form) via the website www.BrandsEye.com (or such other domain as BrandsEye may notify the Client in writing from time to time) and the BrandsEye API (if, applicable as set out in the Order Form), for the Term and specifically for the purpose of enjoying the use and benefit of the Services, provided that the Client complies with these Terms and Conditions, and the privacy policy as set out on the BrandsEye website.
    4. All use of the BrandsEye Product/s and the BrandsEye API and content, documentation, code, and related materials made available to the Client is subject to and must comply with this Agreement.
    5. In relation to the BrandsEye API, the Client is required to obtain prior written approval from BrandsEye for its intended use of the BrandsEye API, which approval shall not be unreasonably withheld.
    6. The provision of the BrandsEye API service by BrandsEye is dependent on the uptime of its third party providers. BrandsEye Consulting shall not be responsible for any interruptions and/or outages of the provision of the BrandsEye API service due to such third party providers. BrandsEye Consulting will use its best efforts to –
      1. notify the Client in the event of an outage caused by a third party provider; and
      2. restore service to an affected Client.
    7. BrandsEye’s agreement with Twitter (“the Twitter Agreement”) is integral to BrandsEye Consulting being able to render the Services. In terms of the Twitter Agreement, BrandsEye Consulting is obliged to ensure compliance by all end users (which in this instance would include the Client) with Twitter’s Terms of Service located at http://twitter.com/tos, the Twitter privacy policy located at http://twitter.com/privacy and the Twitter rules located at http://twitter.com/rules (“hereinafter collectively referred to as the “Twitter Terms”). The Client is therefore obliged to comply with and undertakes to BrandsEye Consulting that it shall use its utmost and best endeavours to ensure its adherence to the Twitter Terms.
    8. The Client acknowledges that, with regards to Twitter content specifically as provided by or access through BrandsEye, the Client is entitled to download Raw Data for purposes of analysis and formulating its insights during the term of the Agreement, but the Client does not at any time obtain ownership of the Raw Data and shall be obliged to delete such Raw Data on termination for whatsoever reason of the Contract.
    9. The Client is strictly prohibited from aggregating, caching or storing location data or any geographic information contained in Twitter information on a standalone basis and may only do so conjunction with a tweet to which it is attached.
    10. The Client is prohibited from displaying tweets in or on a publicly accessible website or application, unless done in strict compliance with the Twitter Terms Display Requirements and other relevant provisions as set out in the Twitter Terms.
    11. The Client warrants to BrandsEye Consulting and to BrandsEye that it will comply with clauses 3.7 to 3.10 and fully indemnifies BrandsEye Consulting, its directors, members and representatives for any losses of whatsoever nature caused by the Client’s breach of any of the warranties set out in this clause 3.
    12. The Client acknowledges that it shall not obtain ownership of or licence to any data that is proprietary to BrandsEye or BrandsEye Consulting or third party, including any Personal Information, obtained through the use of the Services. The Client acknowledges that it shall not obtain ownership of any Intellectual Property rights in the BrandsEye Products. The Client shall only own the Deliverables that it derives from the Raw Data through the provision of the Services.
    13. The Client shall for the duration of the Term, have access to all Raw Data to which it is entitled to obtain under this Agreement and in relation to the Term, which right of access shall terminate on the termination for whatsoever reason of this Agreement.
    14. If after the Term, the Client wishes to access any Raw Data relating to a particular period of the Term, BrandsEye Consulting shall be entitled to charge the Client separately for access to such Raw Data in accordance with its usual rates, due to the fact that BrandsEye Consulting would incur costs in accessing such Raw Data on behalf of the Client.
    15. In the event of the Agreement being terminated by either party, the Client undertakes to immediately delete all Raw Data and/or Personal Information cached subject to its right to retain the Deliverables provided in terms of this Agreement.
    16. The Client shall be granted fair use of the BrandsEye API. BrandsEye Consulting reserves the right to limit the number and/or frequency of API requests in its sole discretion. Should BrandsEye Consulting be of the opinion that the Client has attempted to exceed or circumvent the rate limits, access to the BrandsEye API may be temporarily or permanently blocked by BrandsEye Consulting, with reasonable prior written notice, and without BrandsEye Consulting becoming liable to the Client or any other third party.
    17. BrandsEye reserves the right to make changes to the BrandsEye Products and/or the BrandsEye API from time to time. In the event of changes which may interrupt access, BrandsEye shall use its best efforts to notify the Client at least 5 (five) business days before such changes go live. Support for older versions of the BrandsEye API will not be guaranteed by BrandsEye.
    18. The Client undertakes and warrants to BrandsEye Consulting that in relation to any Raw Data and/or Personal Information obtained from BrandsEye Consulting pursuant to the Services, it shall not, and shall not permit any other party to -
      1. sell or licence or grant rights to such Raw Data, Enriched Data, and/or to Personal Information so obtained, to any third parties;
      2. use such Raw Data, Enriched Data, and/or Personal Information so obtained for commercial purposes (other than for the specific purpose provided for in the Order Form);
      3. disseminate such Raw Data, Enriched Data, and/or Personal Information;
      4. sell access to such Raw Data, Enriched Data, and/or Personal Information;
      5. permit unauthorised access to such Raw Data, Enriched Data, and/or Personal Information;
      6. use such Raw Data and/or Enriched Data, including specifically Personal Information, in any way that violates this Agreement or Data Protection Laws, or which infringes the rights of any third party and will not authorise or permit any other person to do so; and/or
      7. use such Raw Data, Enriched Data, and/or Personal Information so obtained for any negative or unfairly discriminatory purposes or to harass and/or target individuals and/or groups.
    19. The Client is responsible for maintaining the confidentiality of any account and password assigned to it by BrandsEye Consulting (where applicable) in respect of BrandsEye Products and/or BrandsEye API and for preventing access to any computer used by BrandsEye Consulting to prevent unauthorised access to such account. The Client accepts responsibility for all activities that occur under its account or password. The Client shall take all necessary steps to ensure that the password is kept confidential and secure and shall inform BrandsEye Consulting immediately if it has any reason to believe that the Client’s password has become known to anyone else, or if the password is being, or is likely to be, used in an unauthorised manner.
    20. BrandsEye makes the following disclosures about the Services, which disclosures are intended to qualify and limit any and all warranties, undertakings and/or representations given in relation to the Services:
      1. BrandsEye Consulting does not guarantee or warrant precise levels of accuracy of the Raw Data collected and assessed and/or the Enriched Data, as part of the Services;
      2. BrandsEye Consulting does not give any guarantees or undertakings that the Raw Data gathered and the insights and information provided to the Client as part of the Services (including the Enriched Data) will have certain outcomes if applied by the Client in practice;
      3. BrandsEye Consulting has no control over the outcomes of decisions made by the Client which were made based on the Services and BrandsEye Products and therefore cannot be held responsible therefor;
      4. BrandsEye Consulting is not able to and does not guarantee 100% coverage of the Raw Data sources i.e. it will not Data Track 100% of the Mentions published in the sources;
      5. BrandsEye Consulting cannot and does not guarantee that the Client has exclusive access to and use of, the Raw Data and/or Enriched Data (although the Client will have non-exclusive use of its Enriched Data in accordance with the licence granted to it in clause 9); and
      6. BrandsEye Consulting has no control over any decisions made and/or actions taken by Client competitors who may also make use of BrandsEye Consulting’s Services and the BrandsEye Products and therefore BrandsEye Consulting will not be liable therefor.
  4. CHARGES AND PAYMENT
    1. The fee for the Services (which includes the royalty for the licence granted under clause 3.3) is set out in the Order Form and, unless indicated otherwise, is quoted in South African Rands and is exclusive of VAT, sales taxes and/or any other applicable taxes.
    2. The Client shall pay the fee(s) for the Services in the manner and at the time(s) or within the number of days (as the case may be) stipulated in the Order Form. Where the fee(s) is payable in instalments (as stipulated in the Order Form), the Client shall pay each instalment in the manner and at the time(s) or within the number of days (as the case may be) stipulated in the Order Form. Where no payment terms are stipulated in the Order Form, payments shall be due within 30 (thirty) calendar days from the date of invoice.
    3. All payments due to BrandsEye Consulting must be made without deduction or set-off and of immediately available funds.
    4. Interest on all overdue payments under this Agreement shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 3% above the rate that the Standard Bank of South Africa charges on its prime overdraft facilities from time to time, which interest shall be calculated daily, compounded monthly and payable by the Client to BrandsEye Consulting on demand.
    5. Without derogating from BrandsEye Consulting’s right to terminate the Agreement in accordance with the provisions of this Agreement, in the event of any late payments, where BrandsEye Consulting has requested payment from the Client and payment is still outstanding 7 (seven) calendar days from the date of such request, BrandsEye Consulting shall be entitled without further notice to suspend the Services and any access to the BrandsEye Products and BrandsEye API (where applicable) and shall not be liable to the Client or any other party in relation to such suspension as a result of the Client’s late payment.
    6. All fees and charges for any other services provided by BrandsEye Consulting, including access to data after the Term, or for travel costs or disbursements, which are not specifically included in the Order Form will be quoted separately to the Client and will be paid to BrandsEye Consulting by the Client as agreed in writing between the parties and failing such agreement, within 30 (thirty) calendar days following the date of invoice.
  5. MENTIONS VOLUME LIMIT AND OVERAGE CHARGES
    1. The Order Form will stipulate the maximum number of Mentions per brand per month, which are based on volumes estimated as at the Commencement Date.
    2. The Client acknowledges that BrandsEye Consulting is not able to predict exact data volumes and from time to time, and/or on the occurrence of a specific event, Mentions volumes may spike causing the Client’s usage to exceed the agreed limits set out in the Order Form.
    3. With regards to volume limits and in order to manage the Client’s expectations in relation to volume limits, BrandsEye Analyze will send 3 (three) volume warning notifications as follows:
      1. The first notification when the BrandsEye system detects that the threshold will be reached before the end of a particular month;
      2. The second notification when the BrandsEye system reaches 80% (eighty percent) of the volume limit; and
      3. The third and final notification when the BrandsEye system reaches 100% (one hundred percent) of the volume limit.
    4. In the event of the maximum being reached, the Client may opt to upgrade their account for the month to a higher volume limit, or alternatively to purchase additional data volume bundles to over the overage. The Client may also elect to manage its overages manually, in which case the Client would be required to sign off an additional order as soon as the Client has received the second notice referred to in clause 5.3.2 above. Should the Client fail to conclude such additional order form at the time that the notice referred to in clause 5.3.3 has been sent to the Client, BrandsEye Consulting shall be entitled to immediately suspend the Client’s access to the BrandsEye Products, without penalty to the Client, until an agreement between the parties in respect of the overages has been concluded.
    5. If during any month the maximum volumes of Mentions have not been reached, these do not carry over to the following month.
  6. CONFIDENTIALITY
    1. Each Party hereby acknowledges that, during the course of its relationship with the other Party, information or records belonging to the other Party which are either identified as being confidential or which would reasonably be regarded as being of a confidential nature, in whatever format (“Confidential Information”), may be disclosed to it.
    2. Subject to clause 6.3 below, each Party undertakes that it (a) shall keep the Confidential Information strictly confidential and, will not to disclose any of it to any person whatsoever; and (b) shall not, directly or indirectly, use the Confidential Information for any purpose other than that envisaged by this Agreement.
    3. Each Party shall be entitled to disclose Confidential Information (a) to its employees, parent or sister companies and/or professional advisors solely to the extent strictly necessary for purpose of rendering the Services and provided that, prior to such disclosure, the receiving person is bound by a written confidentiality undertaking similar to that set out in this clause 6; and (b) if and only to the extent that doing so is required in order to satisfy an order of a court of competent jurisdiction or to otherwise comply with the provisions of any law or regulation in force at the time.
    4. The provisions of this clause shall not apply to information to the extent to which it can be shown to be part of the public domain (otherwise than as a result of a breach hereof), is Public Data, is lawfully in the possession of the receiving party or is acquired from a third party otherwise than as a result of a breach hereof.
  7. CLIENT DATA
    1. The Client acknowledges that BrandsEye Consulting will, through the provision of the Services be furnished with and have access to Client Data, which may include Personal Information and the Client hereby consents to the use of the Client Data for the purpose of performing the Services.
    2. BrandsEye Consulting will process the Client Data in accordance with the Services as described in the Order Form, shall not make unauthorised use of the Client Data and shall take all reasonable steps to safeguard the Client Data.
    3. BrandsEye Consulting is not required to and does not check or verify Client Data provided to it and will not be responsible for any incorrect or inaccurate Client Data provided to it. BrandsEye Consulting shall not be liable for any errors, or omissions in any Client Data provided to it by the Client.
  8. PERSONAL INFORMATION AND DATA PROTECTION
    1. The Parties acknowledge that the Data they receive from the other party and/or through the Services may include Personal Information. BrandsEye Consulting through providing the Services may also be exposed to Client Data which contains Personal Information (as defined in Data Protection Laws) and/or Data as part of the Services. Similarly, and as part of the rendering of the Services to the Client, the Client may gain access to and be exposed to the Data of third parties (such as social media users) which Data may include Personal Information.
    2. As part of its Services, BrandsEye Consulting also shares Data with its Contributors but in doing so BrandsEye Consulting ensures that Contributors only have sight of the user “handles” of social media users and in any event the Client’s identity is not disclosed to Contributors by BrandsEye Consulting.
    3. Where the Client itself provides any Client Data to BrandsEye Consulting relating to the Services, the Client is obliged to and undertakes to remove all Personal Information from such Client Data prior to supplying such Client Data to BrandsEye Consulting. Where the Client provides any Client Data that does contain Personal Information and/or where the Client gives BrandsEye Consulting direct access to Data, including but not limited to, the Client’s Direct Messages, the Client warrants and undertakes to BrandsEye Consulting and the Group that it has obtained all of the requisite consents from all Data Subjects to whom any such Personal Information relates and that Client has allowed such disclosure in full compliance with Data Protection Laws. The Client hereby fully indemnifies BrandsEye Consulting and the Group from any and all losses and claims arising out of the Client’s breach of the warranty contained in this clause 8.3.
    4. In addition to the Client’s undertakings in clause 3.18, each of the Parties undertakes to the other Party only to use or ‘process’ (as such term is defined in POPIA) each specific piece of Personal Information to the extent necessary for the purposes of carrying out and/or receiving the Services hereunder (“Authorised Purpose”) and otherwise in accordance with the provisions of POPIA.
    5. The Parties specifically undertake to the other Party that it shall:
      1. process Personal Information in such manner that is reasonable, adequate, relevant, non-excessive, purpose-specific and non-infringing of the relevant individual’s privacy and in compliance with Data Protection Laws;
      2. secure the integrity and confidentiality of Personal Information in its possession or under its control by taking appropriate, reasonable technical and organisation measures to prevent (a) loss of, damage to or unauthorised destruction of Personal Information and (b) unlawful access to or processing of Personal Information;
      3. take reasonable measures to (a) identify all reasonably foreseeable internal and external risks to such Personal Information; (b) establish and maintain appropriate safeguards against such risks; (c) regularly verify that the safeguards are effectively implemented; and (d) ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards;
      4. have due regard to generally accepted information security practices and procedures which may apply to it generally or be required in terms of specific industry or professional rules and regulations; and
      5. if there are reasonable grounds to believe that any Personal Information has been accessed or acquired by an unauthorised person, immediately notify the Client or BrandsEye Consulting, as applicable, thereof.
    6. The Client agrees to the disclosure and processing of Personal Information by BrandsEye Consulting to any third party (including but not limited to members of the Group), where BrandsEye Consulting is required by law, regulation or court order, or to enable a public body to properly perform a public law duty, or where such disclosure is necessary for pursuing BrandsEye Consulting’s legitimate interests as it relates to the Authorised Purpose, or in order to comply with its obligations under this Agreement.
    7. The Client consents and authorizes BrandsEye Consulting and the Group to transfer the Client’s Personal Information outside the Republic of South Africa for any legitimate business purpose of BrandsEye Consulting. BrandsEye Consulting undertakes not to transfer or disclose the Client’s Personal Information for any other purposes and BrandsEye Consulting shall in doing so ensure that the foreign third party recipient is subject to a law, binding corporate rules or a binding agreement which provides an adequate level of protection that is similar to the protection provided in POPIA and shall that precludes that foreign third party from transferring Personal Information to any third party in a foreign jurisdiction without similar requirements as those set out in this clause 8.8.
    8. The Client undertakes to BrandsEye Consulting that it will not, nor will it allow, any other party to copy, compile, collate, mine, store, transfer, alter, delete, interfere with, or use any Personal Information obtained in connection with the Services, in a manner that is in contravention of applicable Data Protection Laws.
    9. The Client will not carry out any related or further processing activities in relation to any Data obtained through the Services for any other reason other than strictly in connection with the Services, unless it has the express advance written consent of BrandsEye Consulting.
    10. The Client undertakes to BrandsEye Consulting that it will not disclose or make available Personal Information obtained as a result of the Services to any third party, unless it has the express advance written consent of the Data Subject to do so.
    11. As soon as possible after a Party becoming aware of a Personal Information Breach, it will immediately notify the other Party in writing and shall take all steps to limit the compromise of the Personal Information and to restore the integrity of the affected information systems as soon as possible, and shall as soon as reasonably possible report all relevant facts relating to the compromise and steps to be taken to mitigate the extent and possible adverse effects of the compromise, including but not limited to providing details of any unauthorised person who are known to or may reasonably be suspected of, having accessed or acquired Personal Information.
    12. The Client agrees that upon any request from BrandsEye Consulting, it will provide reasonable evidence of its compliance with its obligations set out in this clause 8.
    13. The Client agrees to provide BrandEye Consulting with details of any Personal Information affected by any compromise relating to Personal Information, including but not limited to the identity of Data Subjects, a description of the possible consequences of the compromise, a description of the measures taken by it to address the compromise and to accept directions from BrandsEye Consulting to address the security compromise, a recommendation with regards to the measures to be taken by Data Subject to mitigate the possible adverse effects of the compromise and where possible, details of the identity of the unauthorised person/s who are known to or may be reasonably suspected of, having accessed or acquired the Personal Information.
    14. The Client agrees to comply with all reasonable requests by BrandsEye Consulting for access, correction or complaint’s related to Data Subject’s Personal Information or any exercise by Data Subject of its rights under POPIA, and at BrandsEye Consulting’s request will promptly provide BrandsEye Consulting with a copy of any Personal Information held by the client in relation to a specific Data Subject. This information must be provided by the Client within a reasonable time, in a reasonable manner and format and at no cost to BrandsEye Consulting.
    15. The Client agrees that BrandsEye Consulting may as part of its compliance obligations in terms of Data Protection Laws, disclose to a Data Subject or Information Regulator that the Client may have been involved in processing such Data Subject’s Personal Information.
    16. The Client agrees that Brandseye Consulting or a third party appointed by BrandsEye Consulting will have the right to audit the Client’s processing activities at any time to determine compliance with the Client’s obligations in terms of this Agreement. BrandsEye Consulting’s audit rights will include the right of access to the Client’s system, software, processes and procedures, and inspection of relevant security systems in place. Should any audit exercise reveal any non-compliance with the terms of this Agreement or Data Protection Laws, or written instructions from BrandsEye Consulting, then in addition to BrandsEye Consulting’s other rights in terms of this Agreement, the Client will be required to take necessary steps to rectify the non-compliance within the shortest time period possible.
    17. The Client agrees that at BrandsEye Consulting’s request the Client will be required to comply with specific retention, destruction and purging requirements as may be prescribed by BrandsEye Consulting from time to time and where applicable, in compliance with Data Protection Laws. In particular, deletion and destruction must be done in a manner that prevents any reconstruction in an intelligible form, i.e. identify/anonymize (by rendering the Personal Information unreadable and unable to be reassembled or reconstruction or re-identified).
    18. The Client agrees to reasonable amendments to the obligations relating to data protections, specifically this clause 8 as may be implemented by BrandsEye Consulting from time to time, to the extent that applicable Data Protection Laws requires such amendments for the benefit of Data Subjects.
    19. The Client agrees to absolve BrandsEye Consulting and the Group, its members, directors, employees and successors from any liability of whatsoever nature and/or costs, expenses and damages, arising from the Client’s failure to comply with its undertakings and obligations set out in this clause 8.
  9. IP OWNERSHIP RIGHTS
    1. All right, title and interest in and to the BrandsEye Proprietary Materials (including without limitation all IP Rights therein) shall at all times remain fully vested in and belong to BrandsEye, and the Client shall have no rights whatsoever in or to the BrandsEye Proprietary Materials other than the right to use it in accordance with the terms of the limited licence granted pursuant to this Agreement.
    2. The Client shall be the owner of the Client Data and the Deliverables, but shall not obtain ownership in any other materials, including any of the Raw Data, Enriched Data (subject o clause 9.3) or any methodologies used by BrandsEye to produce the Deliverables, which methodologies shall form part of BrandsEye’s Proprietary Materials.
    3. BrandsEye Consulting grants the Client a non-exclusive, non-assignable, non-transferable perpetual licence to the Enriched Data.
    4. Save for as specifically provided in clause 9.2 and 9.3, all IP Rights in or arising out of or in connection with the Services, shall be owned solely and exclusively by BrandsEye.
    5. The BrandsEye Proprietary Materials may not be reproduced, duplicated, reverse engineered, de-compiled, copied, sold, resold, visited, or otherwise exploited in whole or in part without BrandsEye’s express prior written consent.
    6. The Client may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of BrandsEye without the express written consent of BrandsEye.
    7. BrandsEye shall not make use of the Client Data, or any of the Client’s trade marks or other proprietary information (including images, text, page layout, or form) without the express written consent of the Client.
  10. LIABILITY AND INDEMNITY
    1. Save as specifically otherwise provided in this Agreement, or in the case of, fraud, fraudulent misrepresentation, personal injury or death, the parties’ liability to one another under this Agreement, howsoever arising, shall be limited to direct damages only and in no event shall either party be liable for any consequential, incidental, indirect, special or other damages whatsoever (including, without limitation, business interruption, loss of business information or other pecuniary loss) arising out of this Agreement regardless of whether such liability is based on breach of contract, delict, strict liability or otherwise. BrandsEye Consulting’s total liability to the Client under this Agreement shall further and in any event be limited to the value of the fees actually paid by the Client during the preceding 6 (six) months in respect of the Services.
    2. The limitation of liability referred to in clause 6.1 shall not in any way be applicable to the Client’s breach of any of the warranties set out in clause 4 and in clause 8.3.
    3. BrandsEye Consulting shall further not be liable for any loss, damage, liability or cost suffered or incurred by, or any claim brought against the Client in connection with any third party proprietary material provided by the Client to BrandsEye to enable or to assist BrandsEye in providing the Services.
  11. TERMINATION AND CONSEQUENCES OF TERMINATION
    1. Subject to BrandsEye Consulting’s rights of suspension of Services as provided in clauses 3.3 and 4.5, either party (the “Complaining Party”) may terminate this Agreement immediately by giving written notice to the other Party (the “Defaulting Party”) if any of the following events occurs:
      1. the Defaulting Party has failed to make any payment of any sum due and payable under this Agreement within 7 days of written notice from the Complaining Party calling on it to make such payment;
      2. the Defaulting Party commits any breach of any of the provisions (other than a provision relating to payment as referred to in clause 9.1.1) of this Agreement and fails to remedy it within 14 days after receiving a written notice from the Complaining Party containing full particulars of the material breach and requiring it to be remedied; or
      3. the Defaulting Party is unable to pay its debts as they fall due; enters into compulsory or voluntary liquidation; compounds with or convenes a meeting of its creditors; is or becomes subject to any bankruptcy, insolvency or liquidation proceedings or order of a competent court; or ceases for any reason to carry on business in the ordinary course.
    2. Any termination of this Agreement by a party in terms of clause 11.1 above, shall be without prejudice to any other remedies it may have in law or under this Agreement, including but not limited to, the right to claim specific performance of the terms of this Agreement and/or to claim damages (but subject to clause 10).
    3. On termination of this Agreement for any reason:
      1. all rights granted to the Client in respect of the BrandsEye Proprietary Materials under this Agreement shall cease;
      2. the Client shall cease all activities authorised by this Agreement in respect of the BrandsEye Proprietary Materials;
      3. the Client shall delete all Raw Data obtained through the Services;
      4. the Client shall immediately pay to BrandsEye Consulting all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, BrandsEye Consulting shall submit an invoice, which shall be payable by the Client immediately on receipt;
      5. the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry; and
      6. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
  12. NO COMPETITION OR SOLICITATION
    1. Each Party acknowledges that the other Party is reliant upon its employees and contractors and has invested substantial time and money in their training and development.
    2. Each Party undertakes to the other that it will not at any time during the term of this Agreement or for a period of one year from the date at which this Agreement terminates or expires, however that may occur:
      1. induce to leave, solicit or entice away or endeavour to induce to leave, solicit or entice away any of the other Party’s director or employee, who (in the case of the Supplier) has undertaken work for the Client or (in the case of both Parties) has had any dealings with the other Party in connection with the Services (and each Party agrees that, without prejudice to any other rights or remedies that the other Party might have, if a soliciting Party acts in breach of this provision it will be liable for a recruitment fee for each of the other Party’s employees induced to leave, solicited or enticed away at a rate equivalent to six (6) months’ wages or salary for the relevant employee);
      2. solicit or offer services or custom, or endeavour to solicit or offer services or custom, to any subcontractor engaged by the other Party to perform or provide services or perform obligations under or in connection with this Agreement to the Supplier and/or the Client; or
      3. cause or permit any person directly or indirectly under its control or supervision, or in its employ, to do any of the acts or things specified above.
    3. The provisions of this clause 12 shall not be applicable where an employee of one Party opts to respond to a public advertisement for employment as published by or on behalf of the other Party.
  13. GENERAL
    1. The Parties choose the respective addresses specified in the Order Form as the addresses at which they will accept service of all documents, legal process and notices in respect of this Agreement. Any notice given in terms of this Agreement shall be in writing and shall: (a) if delivered by hand or courier be deemed to have been duly received by the addressee on the date of delivery; and (b) if transmitted by email be deemed to have been received by the addressee one business day after despatch, unless a delivery failure notification has been given by the relevant system. Notwithstanding anything to the contrary contained or implied in this Agreement, a written notice or communication actually received by one of the parties from the other, including by way of email, shall be adequate written notice or communication to such party.
    2. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: governmental act, war, fire, flood, explosion, civil commotion or any act of God, except that nothing in this clause 13.2 shall excuse the Client from any payment obligations under this Agreement.
    3. No relaxation or indulgence granted by either party to the other shall be deemed to be a waiver of any of that party’s rights in terms hereof, nor shall same be deemed to be a novation of the terms and conditions and nor shall same stop either party from enforcing its rights hereunder. These terms and conditions shall not in any way be deemed to be a waiver by either party of any of its rights in law.
    4. No agreement to vary, add to or cancel this Agreement shall be of any force or effect unless reduced to writing and signed on behalf of both parties to this Agreement.
    5. Nothing in this Agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
    6. Neither party may at any time cede, assign, transfer, subcontract or deal in any other manner with all or any of its rights under the Agreement and may subcontract or delegate in any manner any or all of its obligations under the Agreement to any third party, without the prior written consent of the other party. Notwithstanding anything to the contrary contained in this Agreement, BrandsEye Consulting may, without the Client’s consent, cede and/or assign this Agreement and/or the licence granted hereunder in connection with any merger, change of control, corporate reorganisation or the sale of all or substantially all of its assets provided that any such successor agrees to fulfil its obligations pursuant to this Agreement.
    7. The Parties agree that this Agreement and its termination shall be governed by and construed in terms of the laws of South Africa. The Parties hereby consent to exclusive jurisdiction of the South African magistrates’ courts in connection with any action or motion which either party to this Agreement may institute arising out of or in connection with this Agreement, its interpretation or its termination.
    8. If any part or provision of this Agreement is or becomes unenforceable for any reason, that part or provision shall be deemed to be severable and shall not affect the validity of the remaining parts and provisions.
    9. In this Agreement, unless the context require otherwise:
      1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
      2. A reference to one gender shall include a reference to the other genders.
      3. Words in the singular shall include the plural and vice versa.
      4. Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words "without limitation" following them. The words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
      5. Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
      6. The headings are inserted for convenience only and shall not affect the construction of this Agreement.
    10. This Agreement may be signed in counterparts, each of which shall deemed to be an original and all of which taken together shall constitute one and the same instrument.
    11. The Parties acknowledge and agree that it shall not be a requirement that this Agreement be witnessed and signed by witnesses in order for the Agreement to be valid and enforceable.
    12. The Parties acknowledge and agree that it shall not be a requirement for each of the pages of this Agreement to be initialled by the signatories in order for the Agreement to be valid and enforceable.
    13. A party signing or accepting this Agreement on behalf of the Client does by signing or accepting this Agreement warrants to BrandsEye Consulting that he/she is duly authorised to do so.
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