TERMS & CONDITIONS
TERMS & CONDITIONS
1. Service Availability:
1.1. Telephone support: 9:00 A.M. to 5:00 P.M. Monday – Thursday. 9:00 A.M. to 2:00 P.M. Friday. If otherwise occupied, the call will be returned within 24 hours unless Section 1.4 is in play. Out of office hours calls will be actioned in accordance with the aforementioned and during working hours.
1.2 Email support: Monitored 9:00 A.M. to 5:00 P.M. Monday – Thursday. 9:00 A.M. to 2:00 P.M. Friday. Emails will be responded to within 48 working hours unless 1.4 is in play. Emails received outside of office hours will be collected, however no action can be guaranteed until the next working day.
1.3 Unavailability: The Studio agrees to provide The Company with a minimum of twenty-four (24) hours’ notice of any unavailability.
1.4 Emergencies: In the event of an emergency, The Studios will notify The Company as soon as practicable.
2. Service Requests Charges:
2.1 Matters classified as Standard priority (briefed assignments and ongoing matters) is billable at the agreed hourly fee (excl. VAT), here forward known as “rate”. The Studio retains the right to amend the agreed schedule at any time. The Studio will give fair prior notice before implementing such changes.
2.2 Matters classified as Medium priority (rushed situations) required within 24 turnaround is billable at the agreed rate x1.5.
2.3 Matters classified as High priority (emergency/critical situations) required the same days turnaround is billable at the agreed rate x2.
3. Considerations & Compensation
3.1 Project acceptance & confirmation. At the time of proposal, The Studio will provide The Company with a formal quotation/cost estimate. The quotation/cost estimate will be accepted as approved by The Company upon electronic communications to this extent. The Company acknowledges that it has read, understood, and accepted the Terms and Conditions as set out by The Studio upon approval and acceptance of the said quotation. No work on a project will commence said acceptance and the 50% deposit funds have been cleared to The Studio. Section 10 of the Agreement will come into effect where third-party expenditures are incurred by The Studio for the direct benefit of The Company. In exchange for the full, prompt, and satisfactory performance of all services to be rendered to The Company, The Company shall provide The Studio with proof of payment via email.
3.2 Project duration. Any indication given by The Studio of a project’s duration is to be considered by The Company to be an estimation. The Studio cannot be held responsible for any project overruns not directly caused by The Studio. Estimated project duration should be deemed to be from the date that cleared funds are received by The Studio for the initial payment or by the date confirmed in writing by The Studio.
3.3 Reimbursement. All costs/expenses incurred by The Studio on behalf of The Company will be reimbursed upon receipt of the invoice/slip for the expense/s. This includes but is not limited to consumables and travel expenses as agreed upon. Reimbursement will take place within seven (7) calendar days from receipt of the original invoice and receipt by The Company from The Studio.
3.4 Media spend. All media or ad buying spend/budgets will be paid to The Studio upfront before ad or media is booked/placed/bought/actioned.
3.5 Banking details. The Studio will accept via EFT (online transfer), paid into The Studio’s bank account (information will be included in The Service Level Agreement or via email).
3.6 Proof of payment. The Company agrees to send a Proof of Payment for any and every payment made to the Studio to inform The Studio of such a payment via email and only once received and funds reflect in the account of The Studio.
3.7 Invoice queries. Any invoice queries must be submitted by email within 14 days of the invoice date.
3.8 Late payment interest. Accounts that remain outstanding for 30 (thirty) calendar days after the date of invoice will incur late payment interest charges at 2% on the outstanding amount from the date due until the date of payment subject to mora interest. The interest will be calculated cumulatively monthly.
3.9 Default accounts. An account shall be considered default if it remains unpaid for 30 calendar days from the date of invoice. The Studio shall be entitled to remove The Studio’s and/or The Company’s material from all computer systems until the amount due has been fully paid. This includes all unpaid monies due for services, including, but not limited to, hosting, domain registration, search engine submission, design and maintenance, subcontractors, printers, photographers, and libraries. Removal of such materials does not relieve The Company of its obligation to pay the due amount. Companies whose accounts become default agree to pay all The Studios‘ reasonable legal and accounting expenses and third-party collection agency fees in the enforcement of the debt and the Agreement.
3.10 Third-party expenditures. All third-party expenditures incurred by The Studio for the direct benefit of The Company regardless of location will be charged to The Company by The Studio. The Studio undertakes to submit a formal quotation for approval by The Company. Upon acceptance of the said quotation, the full amount will become payable before any work is to be commenced. The Company shall be responsible for any increases in The Studio’s costs because of any changes to such job parameters or other material made by The Company either directly after the date of any quotations given by The Studio and for any increase in costs by way of overtime charges if the time and date for completing a project are brought forward by The Company. Quotations are valid for a period of thirty (30 Days) from the date of quotation. Third-party expenditures shall include, but not be limited to:
3.10.1 Contractors, consultants, and service companies,
3.10.2 Fabrication, printing, signage, construction and installation activities, and associated cost,
3.10.3 Specialised equipment, materials, testing or other services (including software, web design, web development, web maintenance, and specialised computer applications),
3.10.4 On-site construction representatives and inspectors and associated costs.
3.11 Milestone payments. Should the project be delayed or stand still by The Company without any progress for 30 (Thirty) calendar days from the date of the last proof supplied by The Studio, a milestone payment of 15% will be required as a partial payment towards the total project cost.
3.12 Project approval. The Studio will provide The Company with an approval form or proof email prior to final publication. The Company will also be required to sign and return the approval form or signify approval by email to The Studio. At this time the remainder of the amount due will become payable.
3.13 Preliminary work. All work carried out, whether experimentally or otherwise, at The Company’s request shall be deemed chargeable.
3.14 Final payment. Final payment is subject to the final invoice and not the quote or cost estimate.
3.15 Project completion. The Studio considers the design project complete upon receipt of The Company review and formal approval. Third-party expenditures such as printing, display panel production, film work, website uploading, publishing, etc., contracted on The Company’s behalf constitute a separate project and can be treated as a separate charge.
3.16. Artwork retention. The Studio agrees to hold on behalf of The Company finished artwork that has been created by The Studio or used by The Studio in furtherance of the Agreement and accept responsibility for any damage or loss of such artwork held by The Studio during the term of the Agreement and for one year thereafter. Artwork kept for over one year after the termination of the Agreement will be destroyed unless claimed.
3.17 Data supply. The Company agrees to The Studio’s definition of acceptable means of supplying data to The Company. Text is to be supplied to The Studio in electronic format as standard text (.txt), MS Word (.doc) via e-mail, or a third-party online file-sharing platform. Images that are supplied in an electronic format are to be provided in a format as prescribed by The Studio via e-mail or a third-party online file-sharing platform. Images must be of a quality suitable for use without any subsequent image processing, and The Studio will not be held responsible for any image quality which The Company later deems to be unacceptable. The Studio cannot be held responsible for the quality of any images which The Company wishes to be scanned from printed materials. A charge may be applied to cover any additional work involved where the design elements/data supplied or specified is not clear, legible, or in the prescribed format/specification to produce satisfactory results. Where the material is so supplied or specified, responsibility will not be accepted for imperfect work caused by defects in the supply, format, or specification. This includes any incompatibility or defects caused by differing software versions or conflicting operating systems. Additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing, or data entry services.
3.18 Artwork approval. The Studio will prepare and check artwork for reproduction as carefully as possible. Designs will not go to production until they have been approved by The Company. However, The Studio does not accept responsibility for any errors caused by The Company once artwork has been passed for print or production. The Studio will not be held responsible for errors if The Company misses something in the proof, has reused a printed or digital proof, or if The Company, during order placement, has requested the order go to production without proofing.
4. Relationship of the parties
4.1 No exclusivity. The Parties understand that the Agreement is not an exclusive arrangement. The Parties agree they are free to enter into other similar agreements with other parties. The Studio and The Company agree that they will not enter into any agreements that conflict with their obligations under the Agreement without written consent.
4.2 Parties’ independence. The Company and The Studio expressly agree and understand that The Studio is an independent contractor and nothing in the Agreement shall be construed in any way or manner, to create between them a relationship of employer and employee, principal and agent, partners, or any other relationship other than that of independent parties contracting with each other solely for the purpose of carrying out the provisions of the Agreement. Accordingly, The Studio acknowledges that The Studio and The Studio’s employees are not eligible for any company benefits, including, but not limited to, health insurance, retirement plans, or stock option plans. The Studio is not the agent of The Company and is not authorised and shall not have the power or authority to bind The Company or incur any liability or obligation, or act on behalf of The Company. At no time shall The Studio represent that it is an agent of The Company, or that any of the views, advice, statements, and/or information that may be provided while performing The Services are those of The Company. The Studio further understands and agrees that The Services are not covered under the unemployment compensation laws and are not intended to be covered by workers’ compensation laws. Tax will be paid by The Studio in a private capacity.
4.3 Freedom of trade. The Studio has the right to perform services for others during the term of the Agreement and has the sole right to control and direct the means, manner, and method by which The Services required under the Agreement will be performed. The Studio shall select the routes taken, starting, and ending times, days of work, and order in which the work will be performed. The Studio has the right and is entitled, unless specifically requested, to hire an assistant(s) and subcontractors or to use employees to provide The Services under the Agreement. The Services required by the Agreement shall be performed by The Studio, The Studio’s employees, or personnel, and the Company will not hire, supervise, or pay assistants to help The Studio. Neither The Studio nor The Studio’s employees/subcontractors or personnel shall be required by The Company to devote full-time to the performance of The Services required by the Agreement. The Studio shall use its best efforts, energy, and skill in its own name and in such a manner as it sees fit.
4.4 Property right. All work product created by The Studio in connection with performing The Services becomes the exclusive property of The Company once all fees due to The Studio has been received by The Studio. Ownership of said work product will then transfer to The Company
4.5 Subcontractors. The Studio reserves the right to use The Services of subcontractors, agents, and suppliers, and any work, content, services, and usage is bound by the Agreement. The Studio will not knowingly perform any actions to contravene these, and The Company also agrees to be so bound.
4.6 Printers. The Studio and The Company agree to comply with printers’ Terms and Conditions which include disclaimers for non-completion on time and the flexibility to supply quantities within 10% of the total ordered. The Studio recommends that if an exact quantity is required, then 10% extra is added to the quantity.
5. Non-Disclosure & Confidentiality
5.1 The Parties understand that, in connection with its engagement with the each other, it may receive, produce, or otherwise be exposed to: trade secrets, business, proprietary and/or technical information, including, without limitation, information concerning customer lists, customer support strategies, employees, research and development, financial information (including sales, costs, profits, and pricing methods), manufacturing, marketing, written, printed, graphic, or electronically recorded materials furnished by either Party for use, any written or tangible information stamped “confidential,” “proprietary,” or with a similar legend, or any information that Parties make reasonable efforts to maintain the secrecy of, proprietary software, hardware, firmware, and related documentation, inventions (whether patentable or not), information belonging to customers and suppliers of the Parties about whom the other gained knowledge as a result of providing The Services, know-how, show-how, and other information considered to be confidential by the Parties, and all derivatives, improvements and enhancements to any of the above (including those derivatives, improvements and enhancements that were created or developed by either Party under the Agreement), in addition to all information the Parties receives from others under an obligation of confidentiality (individually and collectively known as “Confidential Information”).
5.2 The Studio acknowledges that the Confidential Information is The Company’s sole, exclusive, and extremely valuable property. Accordingly, The Studio agrees to segregate all Confidential Information from the information of other companies and agrees not to reproduce any Confidential Information without The Company’s prior written consent unless required to do so by law, not to use the Confidential Information except in the performance of the Agreement’s Services, and not to divulge all or any part of the Confidential Information in any form to any third party, either during or after the term of the Agreement, except to Company employees and The Studio employees who need to know such Confidential Information in order to perform The Services. The Studio shall require such The Studio employees to execute a non-disclosure agreement satisfactory to The Company before such that The Studio employee is exposed to any Confidential Information. Upon termination or expiration of the Agreement for any reason, The Studio agrees to cease using and to return to Company all whole and partial copies and derivatives of the Confidential Information, whether in The Studio’s possession or under The Studio’s direct control, including any computer access nodes and/or codes, and to arrange for the return of such materials by all The Studio employees. This is applicable as vice versa.
5.3 The Studio shall not disclose or otherwise make available to The Company in any manner any confidential and proprietary information received by The Studio from third parties. The Studio warrants that its performance of all the terms of the Agreement does not and will not breach any agreement entered by The Studio with any other party.
5.4 The Studio shall not disclose or otherwise make available to The Company in any manner any confidential and proprietary information collected by The Studio independently.
5.5 This serves as a notice to The Company that the use of The Studio’s work, intellectual property, strategies, pitches, ideation, know-how and other shared information of any kind is only to be shared with external parties, company representatives, employees, partners or service providers by written consent. If it is found that any of the above has been shared a fine of R50 000 will need to be paid to The Studio within 30 (thirty) calendar days from invoice from The Studio. The Studio agrees not to share The Company’s confidential information with anyone else unless they are required to by law or have written consent from The Company. The Studio’s obligation to maintain confidentiality will survive the termination of the Agreement and will remain in effect indefinitely.
6. Copyright & Trademark
6.1 Copyright is retained exclusively by The Studio on all design work including words, pictures, ideas, visuals, and illustrations unless specifically released in writing and after all costs have been settled. If a choice of design is presented, only one solution is deemed to be given by the Studio as fulfilling the contract. All other designs remain the property of The Studio unless agreed otherwise in writing.
6.2 By supplying text, images, and other data to The Studio for inclusion in any design (print, video, digital, or any other medium), The Company declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such materials will remain with The Company or the rightful copyright or trademark owner. Any artwork, images, or text supplied and/or designed by The Studio on behalf of The Company, will remain the property of The Studio and/or its suppliers. The Company may request in writing from The Studio the necessary permission to use materials (for which The Studio holds the copyright) in forms other than for which it was originally supplied, and The Studio may, at its discretion, grant this. Such permission must be obtained in writing before it will allow any of the aforesaid artwork, images, text, or other data to be used. By supplying images, text, or any other data to The Studio, The Company grants The Studio permission to use this material freely in the pursuit of performing The Services. Should The Studio, or The Company supply an image, text, audio clip, video clip, or any other file for use in print, video, digital, or any other medium believing it to be copyright and royalty-free, which subsequently emerges to have such copyright or royalty usage limitations, The Company will agree to allow The Studio to remove and/or replace the file where it is being used/implemented immediately. The Company agrees to fully indemnify and hold The Studio free from harm in any and all claims resulting from The Company or third parties in not having obtained all the required copyright, and/or any other necessary permissions. Any fines in this regard will be the sole responsibility of The Company to settle. Any legal accountability, in this case, is also the sole responsibility of The Company. All design work where there is a risk that another party makes a claim should be registered by The Company with the appropriate authorities prior to publishing or first use or searches, and legal advice sought as to its use.
6.3 The Studio will attempt to ensure that only royalty-free images are used in custom designs.
6.4 Any design, copywriting, drawing, idea, or code created for The Company by The Studio, or any of its contractors, is licensed for use by The Company and may not be modified, in any way or form without the express written consent of The Studio and any of its relevant subcontractors.
7. Rights of Refusal.
7.1 The Studio will not include in its designs, any text, images, or other data that it deems to be immoral, offensive, obscene, or illegal. All advertising material must conform to all standards laid down by all relevant advertising standards authorities. The Studio also reserves the right to refuse to include submitted material without giving a reason. Any images and/or data that The Studio does include in all good faith, and then finds out that it contravenes these Terms and Conditions, The Company is obliged to allow The Studio to remove the contravention without hindrance, or penalty. The Studio is to be held in no way responsible for any such data being included.
8. Indemnification, Warranty & Release
8.1 Injury. The Company and The Studio agree to take all necessary precautions to prevent injury to any persons or damage to property during the term of the Agreement, and shall indemnify, defend and hold harmless either party, its officers, directors, shareholders, employees, representatives and/or agents from any claim, liability, loss, cost, damage, judgment, settlement or expense (including attorney’s fees) resulting from or arising in any way out of injury (including death) to any person.
8.2 Warranties. The Studio makes no warranties of any kind, express or implied, for any and all products and/or services that it supplies. The Studio will not be held responsible for any and all damages resulting from products and/or services it supplies. The Studio is not responsible for any loss, or consequential loss of data, or non-delivery of products or services, of whatever cause. While we take reasonable steps to investigate the materials we recommend, we accept no responsibility for the performance or quality of materials or any consequential loss arising from their failure. The Company agrees not to hold The Studio responsible for any such loss or damage. Any claim against The Studio shall be limited to the relevant fee(s) paid by The Company.
8.3 Performance, delivery, or collection. Unless otherwise agreed in writing, all times quoted/cost for performance or delivery or availability for collection are given in good faith but are not guaranteed by The Studio. The time for performance or delivery or availability for collection shall in every case be dependent upon prompt receipt of all necessary information, final instructions, or approvals from The Company. Alteration by The Company of its requirements may result in a delay in performance, delivery, and/or availability for collection for which The Studio shall bear no liability. The Studio shall not be held liable for any delay in print production and late delivery thereof. Any packaging supplied by the Studio, unless otherwise expressly agreed, is intended to provide adequate protection throughout normal conditions of transport. If The Company (or the intended recipient) fails to take delivery on the agreed date or to collect on the agreed collection date, or if no specific delivery or collection date has been agreed when the goods are ready for dispatch, The Studio shall be entitled to store the goods and to charge The Company the reasonable cost of doing so, and to tender its account for such charges to The Company provided that in no event shall The Studio be under any liability in respect of any loss or damage following the dispatch of any goods from The Company’s premises.
9.1 Duration. The Agreement shall be effective on the date hereof and shall continue until terminated by either party upon thirty (30) days / (1) calendar month’s written notice signed by both parties.
9.2 Notices. All notices provided for in the Agreement shall be given in writing either by postal mail or email. No other form of voice or messaging platform will be deemed acceptable. These notices will only be enforceable once both Parties have signed or agreed by email.
9.3 Breach of contract. The Studio may terminate the Agreement immediately at any time if The Company fails to pay for The Services or breaches any other terms of the Agreement. The Company may terminate the Agreement immediately at any time if The Studio fails to provide The Services or breaches any other terms of the Agreement.
9.4 Termination. Upon termination of the Agreement, The Studio shall deliver all records, notes, and data of any nature that are in The Studio’s possession or under The Studio’s control and that are of The Company’s property or relates to The Company’s business back to The Company, provided all fees to The Studio has been settled and reflects in The Studio’s bank account.
10. Dispute Resolution
10.1 Negotiation. In the event of a dispute, the Parties agree to work towards a resolution through good faith negotiation.
10.2 Mediation or Binding Arbitration. If talking it over doesn’t go well, either Party may initiate mediation or binding arbitration within the Republic of South Africa.
10.3 Litigation and Choice of Law. If litigation is necessary, the Agreement will be interpreted based on the laws of the Republic of South Africa, regardless of any conflict of law issues that may arise. The Parties agree the dispute will be resolved at a court of competent jurisdiction in the Republic of South Africa.
10.4 Attorney’s Fees. The prevailing party, also known as the “winner”, will be able to recover its attorney’s fees and other reasonable costs for a dispute resolved by binding arbitration or litigation, should the arbitration agreed or court order stipulates the “winner” should be awarded the attorney fees.
11. Protection Of Personal Information Act (POPIi Act) Disclaimer
11.1 The Studio shall take all reasonable measures to protect the personal information of users and for the purpose of this disclaimer “personal information” shall be defined as detailed in the Promotion of Access to Information Act, Act 2 of 2000 (“PAIA”) and the Protection of Personal Information Act, Act 4 of 2013 (“POPI”). The PAIA and POPI Acts are available online at www.gov.za/documents/acts. As per the POPI Act personal information refers to information that identifies or relates specifically to an individual as a person or data subject, for example, their name, age, gender, identity number, and email address.
12.1 Amendments. The Agreement may be modified as needed. To make a modification, the Parties have to agree to the modification in writing in the form of an amendment. The terms of the Agreement will apply to any amendment made unless otherwise stated in the amendment. Amendments will need to be signed by both Parties to be enforceable.
12.2 Assignment. The Parties may not assign the responsibilities they have under the Agreement to anyone else. The Studio is irreplaceable.
12.3 Complete Contract. The Agreement contains the entire agreement between the parties hereto with respect to the transactions contemplated herein, their rights, and obligations. The language of all parts of the Agreement will in all cases be construed as a whole in accordance with its fair meaning and not for or against either party. The Agreement supersedes any other written or verbal communications between the Parties.
12.4 Service. Service output will be directly impacted by the agreed approach and will be proportional to the agreed investment.
12.5 Severability. If any section of the Agreement is found to be invalid, illegal, or unenforceable, the rest of the Agreement will still be enforceable.
12.6 Waiver. Neither Party can waive any provision of the Agreement, or any rights or obligations under the Agreement unless agreed to in writing. If any provision, right, or obligation is waived, it’s only waived to the extent agreed to in writing by both parties and signed.
12.7 Traveling. Should The Studio need to travel on The Company’s business outside the Western Cape but within South Africa and upon The Company’s request, The Studio shall be reimbursed at a “per diem” expense per person traveling of ZAR 4,500 (ex VAT). If The Studio is required to travel outside of South Africa upon The Company’s request, The Studio shall be reimbursed at a “per diem’’ expense per person traveling of USD 1,000 (excl. VAT). Travel particularly by motor vehicles will be reimbursed at a rate determined by distance traveled based on the standard reimbursement rate per kilometer as determined by the Automobile Association of South Africa as per time of travel.
12.11 Children’s Privacy. Our website is intended for the use of adults and individuals 13 years of ages and older. Our website is not directed to children under the age of 13. Users under the age of 13 must have the permission and/or assistance of an adult while using or visiting our website.
12.12 Credit. The Company agrees to allow The Studio to place a small credit on printed material exhibition displays, advertisements, and/or a link to The Studio’s own website on The Company’s website. This will usually be in the form of a small logo or line of text placed toward the bottom of the page. The Company also agrees to allow The Studio to place designs on To the Core Studio’s own website and social media for demonstration purposes and to use any designs in its own publicity. This includes canceled projects, and projects not finalised within an 8-month period from the date of commencement.
12.14 Studio Staff. The Company agrees not to employ The Studio’s personnel during the tenure of the contract and for a subsequent period of two years from the date of its termination.