1. The parties to this agreement are:-
   1. Design Kist CC, a close corporation duly incorporated in terms of the laws of the Republic of South Africa with registration number 2010/015489/23 and the registered address of 21 Upper East Side,  Upper Buitenkant Street, Gardens, Cape Town and email address info@designkist.com (hereinafter “Design Kist”); and
   2. The Customer, as set out in Annexure A hereto.

1. In this agreement, unless inconsistent with the context, the following words and expressions shall bear the meanings assigned thereto and cognate words and expressions shall bear corresponding meanings:-
   1. “Accrued Claims” – all Design Kist’s accrued rights and claims against third parties arising out of any infringements of the Rights of Copyright subsisting and enforceable by Design Kist at the date of this agreement. Such rights shall include, but shall not be limited to, the right to claim from any infringer of the said Rights of Copyright the damages suffered by Design Kist arising from the infringement of such Rights of Copyright, delivery-up of any infringing copies of the Design in the possession or under the control of the said infringer, such so-called “additional damages” as Design Kist might have been entitled to claim from the infringer of the said Rights of Copyright, and generally all rights arising out of his ownership of the Rights of Copyright in the Design which might have been enforceable by Design Kist against third parties at the date of this agreement;
   2. “Day” – any day other than a Saturday, Sunday or public holiday in the Republic of South Africa;
   3. “Effective date” – the date upon which the Customer signs this agreement;
   4. “Prime Rate” – the publicly quoted basic rate of interest per annum from time to time (as certified by any officer of the hereinafter mentioned bank, whose appointment and authority it shall not be necessary to prove and which certification shall be final and binding on the Parties) at which Design Kist’s Bank lends money in South African Rand on unsecured overdraft to first class corporate borrowers in general on the basis of such interest being compounded monthly in arrear and calculated on a 365 (three hundred and sixty five) day year factor, irrespective of whether or not the year is a leap year;
   5. “Rights of Copyright” – all rights of copyright in and to the Design internationally;
   6. “the Design” – a textile design, as identified by the Customer from time to time by duly completing the form embodied in Annexure B to this agreement;
   7. “the Purchase Price” – the price payable by the Customer to Design Kist in consideration for the Rights of Copyright;
   8. “the Parties” – the parties to this agreement and “Party” means any one of them;
   9. “the Website” – the website that Design Kist will use to make the Rights of Copyright available for sale to its customers; and
   10. “this agreement” – this agreement including any schedules hereto.
   11. “VAT” – value added tax at the applicable rate from time to time in terms of the Value Added Tax Act No. 89 of 1991 or any statutory amendment or re-enactment thereof.
2. In this agreement, words importing the singular shall include the plural, and vice versa, and words importing the masculine gender shall include the feminine and neuter genders, and vice versa, and words importing persons shall include partnerships, trusts and bodies corporate, and vice versa.
3. The headings to the paragraphs to this agreement are inserted for reference purposes only and shall not affect the interpretation of any of the provisions to which they relate.
4. Each of the provisions contained in this agreement shall be construed as independent of every other such provision to the effect that if any provisions of this agreement shall be determined to be illegal, invalid and/or unenforceable then such determination shall not affect any other provisions of this agreement all of which shall remain in full force and effect. If any clause or part of this agreement is found by any competent court or authority to be illegal, invalid or unenforceable the Parties agree that they shall substitute terms in a form as similar to the offending terms as is possible without thereby rendering it illegal, invalid or unenforceable.
5. If any provision in a definition in this agreement is a substantive provision conferring rights or imposing obligations on any parties, then notwithstanding that it is only in the definition (interpretation) clause of this agreement, effect shall be given to it as if it were a substantive provision in the body of the agreement.
6. When any period is prescribed in this agreement, that period shall be reckoned exclusively of the first day and inclusively of the last day unless the last day is not a business day, in which case the last day shall be the next succeeding business day.
7. Where any term is defined within the context of any particular clause in this agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this agreement, notwithstanding that that term has not been defined in this interpretation clause.
8. The Parties acknowledge and agree that they have had equal opportunity to take legal advice and to negotiate and amend this agreement and the “contra proferentum-rule” (and any other rule of interpretation that provides that this agreement shall be interpreted against the Party responsible for the drafting or preparation of this agreement) shall not apply.

1. WHEREAS Design Kist is the owner of the Rights of Copyright, as defined herein, by virtue of it taking assignment thereof from the original author of the Design, as defined herein.
2. AND WHEREAS the Customer wishes to acquire ownership of the Rights of Copyright;
3. AND WHEREAS it is the desire and intention of the Parties that the Customer should become the owner of the Rights of Copyright;
4. AND WHEREAS the Parties desire and intend to regulate their business relationship by written agreement;
5. NOW THEREFORE IT IS HEREBY AGREED as set out in this agreement.

Design Kist hereby assigns, transfers and makes over to the Customer the Rights of Copyright with effect from the Effective date.

Design Kist hereby warrants that to the best of its knowledge and belief:-

1. the Design is original and its making did not constitute an infringement of any copyright;
2. copyright subsists in the Design; and
3. Design Kist is the owner of the Rights of Copyright without encumbrance at the date of this agreement and that it has not assigned, ceded, transferred or made over the Rights of Copyright or the Accrued Claims to any other party.

1. The Purchase Price shall be the price assigned to the Design on the Website, which price shall be exclusive of VAT which shall be payable by the Customer.
2. The Purchase Price as well as the VAT payable on the Purchase Price shall be payable in full and in cash, free of exchange and without deduction or demand, upon the Effective Date, into Design Kist’s bank account as set out on the Website on the Effective Date.

1. The Customer shall not copy or cause to be copied, in any form whatsoever, any of the textile designs made available to it on the Website, unless it has taken assignment of the copyright in any such design from Design Kist.
2. The Customer shall not disclose its username or password used to gain access to the Website to any third party without Design Kist’s prior written consent.
3. The Customer shall not allow any third party to access the Website via the Customer’s account used to access the Website, without Design Kist’s prior written consent.

1. If any Party commits a breach of this agreement and/or fails to comply with any of the provisions hereof ("the defaulting party"), then the remaining party ("the aggrieved party") shall be entitled to give the defaulting party 7 (seven) days notice in writing to remedy such breach and/or failure, and if the defaulting party fails to comply with such notice then the aggrieved party shall forthwith be entitled, but not obliged, (without prejudice to any other rights or remedies which the aggrieved party may have in law, including the right to claim damages), to cancel this agreement or to claim immediate performance and/or payment of all the defaulting party's obligations in terms hereof.
2. Any failure by the defaulting party to effect payment on the due date of any monetary amount owing in terms of this agreement to the aggrieved party shall result (without prejudice to any other rights of the aggrieved party arising out of such failure) in the defaulting party being liable to pay interest at the Prime Rate to the aggrieved party which interest shall be calculated daily and compounded monthly from (and including) the due date of payment to (and including) the actual date of payment.
3. The aggrieved party shall be entitled to recover from the defaulting party all legal costs incurred by it, including attorney and own client charges, tracing fees and such collection commission as the aggrieved party is obliged to pay its attorneys.

1. The Parties choose as their domicilium citandi et executandi ("domicilium") for the purposes of the giving of any notice, the serving of any process and for any other purposes arising from this agreement, their respective addresses set forth in clause 1 and Annexure A.
2. Each of the Parties shall be entitled from time to time, by written notice to the other to vary its domicilium to any other address which is not a post office box or poste restante and which is in the Republic of South Africa.
3. Any notice given and any payment made by a Party to the other party ("the addressee") which:
   1. is delivered by hand during the normal business hours of the addressee at the addressee's domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee at the time of delivery;
   2. is posted by prepaid registered post (or its equivalent) to the addressee at the addressee's domicilium for the time being shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee on the 5^th (fifth) day after the date of posting;
   3. is transmitted by telefax or e-mail to the addressee shall be presumed, unless the contrary is proved by the addressee, to have been received by the addressee within 2 (two) hours of transmission.
4. Where, in terms of this agreement any communication is required to be in writing, the term "writing" shall include communications by e-mail or telefax, unless otherwise stated.
5. Notwithstanding anything to the contrary contained or implied in this agreement, a written notice or communication actually received by one of the Parties from another shall be adequate written notice or communication to such party.

Each of the Parties hereby undertakes to:

1. do, and to procure the doing by other persons, and to refrain and procure that other persons will refrain from doing, all such acts; and
2. pass, and to procure the passing of all such resolutions of directors or members of any body corporate,
3. to the extent that the same may lie within such Party’s power and may be required to give effect to the import or intent of this agreement, or any contract concluded pursuant to the provisions of this agreement.

1. This agreement shall be binding on and enforceable by the estates, heirs, executors, administrators, trustees, assigns, liquidators, curators or other legal representatives of the Parties as fully and effectually as if they had signed this agreement in the first instance and reference to any party shall be deemed to include such party's estate, heirs, executors, administrators, trustees, assigns, liquidators, curators or other legal representatives, as the case may be.
2. This Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa. The Parties agree that the High Court of South Africa shall have exclusive jurisdiction to hear any disputes that may arise from this agreement.
3. No latitude, extension of time or other indulgence which may be given or allowed by any party to the other parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any party arising from this agreement, and no single or partial exercise of any right by any party under this agreement, shall in any circumstances be construed to be an implied consent or election by such party or operate as a waiver or a novation of or otherwise affect any of the party's rights in terms of or arising from this agreement or estop or preclude any such party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.
4. No addition to or variation, consensual cancellation or novation of this agreement and no waiver of any right arising from this agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by all the Parties or their duly authorised representatives.
5. This agreement constitutes the whole agreement between the Parties as to the subject matter hereof and no agreements, representations or warranties between the Parties regarding the subject matter hereof other than those set out herein are binding on the Parties.
6. The person signing this agreement on behalf of any one of the Parties expressly warrants his authority to do so.
7. The rights, powers and remedies provided in this agreement are cumulative and not exclusive of any rights, powers and remedies provided under this agreement or by law.
8. This agreement may be executed in any number of counterparts but shall not be effective until each Party has executed at least one counterpart. Each counterpart shall constitute an original of this agreement, but all the counterparts shall together constitute but one and the same instrument.
9. Nothing in this agreement shall create or be deemed to create a relationship of principal/agent, employer/ employee, partnership or joint venture between the Parties and except as provided in this agreement neither Party shall enter into or have authority to enter into any agreement or make any representation or warranty on behalf of or pledge the credit or otherwise bind or oblige the other Party.