Don’t be that person that doesn’t read the Terms and Conditions. Yes, it can feel soul destroying and with so little time and so much life to live, the last thing you feel like doing is being sucked into the vortex of legalese and terms that seem that they’ve been purposefully created to intimidate and confuse you. But it’s one of those things that just have to be done. Read the fine print! For all you know we might be asking you to sign away your holiday home in Zambia! Do you really want that? Me thinks not!
Don’t fret so much though, our legal heroes are nice humans and have made it a quick-read for us creative types who get easily distracted by pretty things.
With that said, the nice humans over at legal present you with THE LEGAL STUFF…
1. PREAMBLE
The following Terms & Conditions apply to all services provided by The Marketing Designer & Co. Once you accept a quote verbally or in writing via WhatsApp or Email and proceed with a deposit payment, you accept our Terms & Conditions and will be held liable as follows. It is not a requirement for a client to provide a signed acceptance of these terms and conditions for them to be applicable.
Should you wish to be provided with services, request a quotation for the rendering of services or engage The Marketing Designer & Co as a Service Provider, you agree to the following Terms and Conditions:
2. DEFINITIONS
2.1 ‘Agreement’ shall mean any agreement reduced to writing and agreed upon or, any electronic communication by both Parties that have been agreed upon, inclusive of any quotation, order, invoice or otherwise, subject to the Client accepting such quotation, order, invoice or otherwise in writing or by way of electronic communication.
2.2 ‘Service Provider’ shall mean The Marketing Designer & Co, or any such other person as may be designated by The Marketing Designer & Co from time to time.
2.3 ‘Client’ shall mean anyone who engages the services or requests to engage the services of The Marketing Designer & Co.
2. 4 Words importing one gender will include references to all other genders and vice versa; words importing the singular will include the plural and vice versa.
2. 5 Headings are for convenience purposes only and are not intended to be used to interpret any part of these Terms and Conditions.
2. 6 ‘Parties’ shall mean The Marketing Designer & Co and Client collectively.
2. 7 Any number of days prescribed in these Terms and Conditions excludes the first day and includes the last day.
2. 8 The words ‘including’ and ‘in particular’ are without limitation.
3. PAYMENTS, BOOKING FEE, RETAINER FEE AND ADVERTISING SPEND
By engaging the services of the Marketing Designer & Co, you agree to:
3.1 Accept that The Marketing Designer & Co is a VAT vendor and that quotations and invoices sent are inclusive of VAT at a rate of 15%.
3. 2 Make payment of 50% of the service cost upfront as a booking fee on acceptance of any quotation, order, invoice or otherwise, excluding payment for retainer fees.
3. 3 Make payment of the final 50% of the service cost on sign-off of any service provided, (excluding retainer fees and social media packages) by The Marketing Designer & Co or within 7 days of being requested to do so by The Marketing Designer & Co once The Marketing Designer & Co has requested sign-off on any service provided (excluding retainer fees).
3. 4 Make payment of retainer fees where such retainer fee relates specifically to digital marketing and/or website hosting and/or maintenance packages offered by The Marketing Designer & Co, in full and in advance of services, which payment is due on/before the 1st of each month. Payments not received by the 7th of each month will be considered late and attract a non-refundable penalty fee.
3. 5 Accept that all overdue accounts will attract a non-refundable penalty fee of R600 ex VAT per invoice in accordance with relevant laws and will automatically be added to your next invoice if your contract is on a retainer agreement. Should you not be on a retainer agreement this amount will be invoices separately.
3. 6 Accept that payments not received by due date will result in work cessation. The Marketing Designer & Co reserves the right to refuse completion or delivery of work until past due balances are paid.
3. 7 Use invoice numbers as payment reference when making payment via Electronic Fund Transfer and send proof of payment to lecia@themarketingdesigner.com
3. 8 Allow The Marketing Designer & Co full discretion on how best to utilise the allocated Advertising Spend. The Marketing Designer & Co is not obligated to use the full Advertising Spend as the spend is determined by the deliverables per advert. This will be invoices accordingly, on completion.
3. 9 The Marketing Designer & Co reserves the right to alter or decline to provide a quotation after expiry. Accept that fees and rates charged by The Marketing Designed & Co may change from time to time and that the Client will be given one calendar months’ notice of such changes if retainer agreements are in place.
3. 10 Accept that expenses incurred on behalf of the Client which are not included on quotations will be billed to Client separately. Payment is due upon receipt of invoice.
3. 11 Accept that the cost of purchasing domain names is not specifically included in the initial quotation/ invoice with regards to Website Design services offered by The Marketing Designer & Co and will be classified as an expense. The cost for renewing of domain names will be for the cost of Client and if hosted with The Marketing Designer & Co, this will be billed for.
3. 12 Understand that urgent projects will affect the previously agreed upon deadlines of projects already underway and that the date of completion on a project is affected by feedback and receiving of content from the Client and that time lines will be adjusted accordingly.
3. 13 The Marketing Designer & Co will not be liable for costs incurred, compensation or loss of earning due to the failure to meet agreed deadlines.
4. CANCELLATION, CHANGES TO SERVICES & REFUNDS
4.1 In accordance with Section 17 of the Consumer Protection Act 68 of 2008, the Client is entitled to cancel the services provided by The Marketing Designer & Co at any time before the services are due to be rendered but subject to The Marketing Designer & Co charging a reasonable cancellation fee. Best practice requires a 1 month calendar notice in writing from The Client notifying The Marketing Designer & Co of the cancellation of service.
4.2 The Client agrees and acknowledges that in the marketing and graphic design industry, bookings for services are taken far in advance before the actual service is due or rendered, on average 3 to 4 months before the service is rendered. The Marketing Designer & Co will do everything possible to accommodate the Client who requests cancellation of services before such services are rendered but given the advanced nature of booking of services and the likely loss The Marketing Designer & Co will suffer (prospective clients that have been turned down to make this time available to the cancelling Client), this will be considered when charging a cancellation fee.
4.3 Each cancellation will be reviewed on its own merits and according to its own unique circumstances to determine the applicable cancellation fee. As a guideline, the cancellation fee will be dependent on the proximity of the Client’s termination with the date on which the services are to be rendered.
4.4 Please note that The Marketing Designer & Co will not offer refunds on any payments made by the Client to The Marketing Designer & Co. This includes but is not limited to annual website hosting and maintenance plans!
- Website hosting: Refunds are not provided for payments made for past months of web hosting. Upon purchase of a hosting plan, a hosting account is created with a specific amount of server resources allocated according to the selected plan. If the client fails to utilize their account, payment for the hosting services is still due. Hosting accounts will remain active until we receive written notice of cancellation from the client, or until 15 days after the due date of payment if payment is not received. In the event that the client cancels a hosting account that was paid for 12 months in advance before the expiration date, the payment made is nonrefundable. If the client received any free products or services with their hosting plan purchase, the value of these free items will be subtracted from any refund amount. The Marketing Designer & Co retains the right to deactivate or terminate any user account found to be in violation of the terms of service, with no refund given for accounts terminated due to policy violations.
- Website Design: Website Design projects require a 50% deposit but often clients decide on an upfront payment. Please note that once a payment or deposit is made, it is non-refundable. If a project is cancelled or postponed, all monies paid are retained by The Marketing Designer & Co and if applicable, a fee for all work completed beyond what was already paid, for shall be paid by the client.
5. NON-SOLICITATION
5.1 The Client warrants and agrees to not solicit any employee, client, independent contractor of The Marketing Designer & Co personally as well as on behalf of a business enterprise while engaging with The Marketing Designer & Co and for a period of one year thereafter.
5.2 Client hereby warrants that The Marketing Designer & Co will suffer irreparable harm if Client breaches the condition above and that monetary damages to the extent of the damage will be for the sole cost of the Client.
6. PERSONAL INFORMATION
The Client acknowledges that The Marketing Designer & Co will collect, use and process the Client’s Personal Information for the purpose/purposes of:
• entering into an agreement;
• performing their obligations in connection with the agreement entered into;
• pursuing legitimate interests under the agreement entered into;
• the general administration of the relationship between Parties.
The Marketing Designer & Co undertakes to ensure compliance with all Data Protection Legislation when processing Personal Information of the Client.
7. CONFIDENTIAL INFORMATION
7.1 Shall include but not be limited to:
7.1.1 Technical, business, financial, part, present or future research and development, business activities, products, services and technical knowledge or marketing information;
7.1.2 proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, production, costs, profit and margin information, finances and financial projections, customers, clients, current and future business plans and models;
7.1.3 tangible materials containing Confidential Information, including without limitation drawings, schematics, written or printed documents, computer discs, USB’s, tapes and compact discs (“CD’s), whether machine or use readable.
7.2 The above shall be deemed to be Confidential Information whether inside or outside the field which the Parties disclose to each other in connection with the discussions, and either has been identified in writing as confidential or is of such a nature, or has been disclosed in such a way, that it should be obvious to the Parties that it constitutes Confidential Information whether such information is designated as Confidential Information at the time of its disclosure and which will further include all information that falls within the definition of “Personal Information” as defined in the Protection of Personal Information ACT (“POPI”).
7.3 The Disclosing Party shall retain ownership of all its Confidential Information. Nothing contained in these Terms and Conditions shall create, imply or be construed as to grant the receiving party of Confidential Information any licence or other rights in or to the Confidential Information and/or any intellectual property rights attached thereto, or act as a waiver of any rights that the disclosing party may have to prevent infringement or misappropriation of any patents, patent applications, trademarks, copyright, trade secrets, know-how or other intellectual property rights owner or controlled by the Disclosing Party.
8. LIABILITY
8.1 Parties agree to use reasonable care and diligence to perform their respective obligations under these Terms and Conditions. Parties agree to act in good faith and take all actions as may be reasonably necessary to carry out the purpose of these Terms and Conditions.
8. 2 The Marketing Designer & Co makes every reasonable effort to secure social media accounts and/or websites designed/maintained by The Marketing Designer & Co from malicious attacks. Client accepts full risk for these social media and/or websites designed and/or maintained and holds The Marketing Designer & Co, its employees, agents and/or contractors free of liability, injury, loss, damage, cost penalty or claim of whatever nature resulting from the use of these social media/websites designed and/or maintained by The Marketing Designer & Co.
8. 3 In respect of accuracy, client assumes full responsibility for acceptance of work or services performed and agreed upon, as well as final proofing and accuracy. The Marketing Designer & Co is not responsible for any errors or omissions.
8. 4 To the extent that it is lawful to exclude the following heads of loss and subject to the Client’s obligation to pay the price, in no event shall The Marketing Designer & Co be liable for any loss whether caused by negligence or otherwise.
8. 5 The Marketing Designer & Co will not be held liable for failures of performance or poor-quality performance from third party suppliers.
8. 6 The Client indemnifies The Marketing Designer & Co from all liability, claims and expenses arising from the Client’s unlawful conduct.
8. 7 The Marketing Designer & Co does not undertake to guarantee any specific outcome, style or design and the Client uses the services at his or her own risk.
9. DISPLAY, PROMOTION AND MARKETING
9.1 The Client hereby grants The Marketing Designer & Co the unrestricted right to create, use, edit and publish content relating to the services provided to Client by The Marketing Designer & Co for promotion, advertising, editorial, competition or otherwise any other purpose and in any manner and medium.
9.2 The Marketing Designer & Co may use pictures, videos or other forms of content created by The Marketing Designer & Co for the Client on social media (including Facebook and Instagram), blogs and websites, printed and digital publicity material, exhibitions, competitions, magazines and other such media as is appropriate for professional quality.
9.3 With website design and/or development projects, The Client’s website will include a link to The Marketing Designer & Co’s website either through a small graphic or text placed at the bottom of the page. If a graphic is used, it will be designed to seamlessly fit in with the Client’s website design.
10. NOTICES (DOMICILIUM)
10.1 Any notices or other documents to be served under these Terms and Conditions may be served at the address provided by The Marketing Designer & Co and the Client by way of electronic communication or under any written documents provided by the Client to the Marketing Designer & Co.
10.2 All notices given in terms of these Terms and Conditions shall be in writing and any notice given by one party to the other which is sent by e-mail to the addressee’s e-mail address shall be deemed to have been received by the addressee on the 1st (first) business day after the date of transmission thereof.
10.3 Notwithstanding anything to the contrary contained or implied in these Terms and Conditions, a written notice or communication actually received by one of the Parties from the other, including by way of e-mail, shall be adequate written notice or communication to such party.
11. TERM
11.1 The Parties obligation under this Agreement and under these Terms and Conditions shall commence once agreement has been reduced to writing and agreed upon or any electronic communication by both Parties that have been agreed upon, inclusive of any quotation, order, invoice or otherwise, subject to the Client accepting such quotation, order, invoice or otherwise in writing or by way of electronic communication and shall continue until such a time as The Marketing Designer & Co has completed the service/order or otherwise agreed between the Parties in writing, where after such obligation shall terminate.
11.2 With respect to retainers and social media packages, Client acknowledges that The Marketing Designer & Co requires 1 calendar months’ notice. Failure to provide such notice will attract a cancellation fee.
12. BREACH
12.1 If the Client breaches any provision of these Terms and Conditions and fails to remedy such breach within 5 business days of receipt of a written notice from The Marketing Designer & Co requiring it to do so, then The Marketing Designer & Co will be entitled without notice, at its option:
12.1.1 to seek immediate specific performance of any of the defaulting party’s obligations under this Agreement and Terms and Conditions, whether or not such obligation is then due; or
12.1.2 to cancel any Agreement between the Parties, in which case written notice of the cancellation shall be given to the Client and the cancellation shall take effect on the giving of notice;
12.1.3 and in either event, The Marketing Designer & Co shall be entitled to claim any damages it has suffered.
12.2 The Marketing Designer & Co’s remedies in terms of this clause are without prejudice to any other remedies to which The Marketing Designer & Co may be entitled at law.
13. UNDUE DELAYS
13.1 In the event of there being a delay with the completion and rendering of services by The Marketing Designer & Co where the Client is responsible for such delay, The Marketing Designer & Co will request that such delay be remedied by calling on information/documentation to allow The Marketing Designer & Co to fulfil its obligations, such information/documentation being provided within 7 days of being called upon to do so. Failure by the Client to provide the documentation and information requested by The Marketing Designer & Co will constitute Breach and the Client will be placed on terms.
14. FEEDBACK, REVISIONS AND APPROVALS
14.1 In respect of design work, including websites, performed by The Marketing Designer & Co, the Client will be requested and allowed to make changes on three separate occasions (unless otherwise agreed to within the services agreement) to the design by The Marketing Designer & Co. The Client may request significant changes in the 1st and 2nd cycle. By the 3rd cycle, the Client’s requests shall be modifications of the current composition only. Revision requests that depart from the current composition will be quoted on.
14.2 The Client will have 7 business days, upon request to do so, to review and approve services and designs rendered by The Marketing Designer & Co. At the end of said time, if no answer has been given by the Client to The Marketing Designer & Co, the work will be considered approved, and The Marketing Designer & Co will continue their work or accept the service/design to have been completed/rendered.
14.3 Should Client request revisions to services which are accepted as completed/rendered, Client acknowledges that such revisions and changes will be billed for over and above that which was initially quoted at a rate of R600 per hour or at a fixed amount agreed between Parties.
14.4 Any work in progress that is held up by the Client for more than 30 days will be billed for according to the amount of work that has been completed. This is payable on receipt of invoice. Work can then be re-commenced once the Client is ready. At this point, rescheduling of the project will occur based on capacity in the studio at the time. All work remains the property of The Marketing Designer & Co until final payment is received.
15. OWNERSHIP OF INTELLECTUAL PROPERTY
15.1 The Marketing Designer & Co does not provide open files which include but are not limited to templates and vector logos to Clients. These files remain the property of The Marketing Designer & Co.
15.2 Print-ready artworks and versions of JPEG’s, PNG’s, PDF’s and GIFFS can be provided to Client on request and at the sole discretion of The Marketing Designer & Co. Further, print-ready artworks and versions requested by the Client and provided by The Marketing Designer & Co may be charged for by The Marketing Designer & Co.
15.3 Website domains purchased by The Marketing Designer & Co on your behalf remain the property of The Marketing Designer & Co unless transfer of such domain is requested and paid for in full at time of transfer.
15.4 When handing over any logins and passwords The Marketing Designer & Co will provide these details in writing via email. The Client will have 7 days from date that the email was sent, to accept and update any relevant details. Should the Client delay in accepting the transfer and/or updating the details and request assistance after the initial 7 day period, the Client accepts that this assistance will be billed at a rate of R600 ex VAT per hour. Please note that The Marketing Designer & Co cannot guarantee assistance should the details have expired or we no longer have the logins and passwords saved on our system. Once logins and passwords are provided The Marketing Designer & Co no longer accepts any liability. It is the Client’s responsibility to safeguard and secure all logins and passwords once provided.
16. FORCE MAJEURE
16.1 The Marketing Designer & Co is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
17. GOVERNING LAW AND JURISDICTION
17.1 These Terms and Conditions will be interpreted, governed and construed by the laws of the Republic of South Africa and not limiting the jurisdiction that any other court may have, the Parties consent in terms of Section 45 of the Magistrates’ Courts Act 32 of 1944 (or similar replacing Act) to the jurisdiction of the Magistrate’s Court for the purpose of any proceedings in terms of these Terms and Conditions and Agreement between Parties, notwithstanding that the amount claimed may exceed such jurisdiction.
18. GENERAL
18.1 Neither party shall assign, cede or transfer all or part of its rights under these Terms and Conditions without the written consent of the other party.
18.2 No failure by The Marketing Designer & Co to enforce any term of this Agreement and Terms and Conditions will constitute a waiver of such term or affect in any way The Marketing Designer & Co’s right to require the performance of such term at any time in the future, nor will a waiver of a subsequent breach nullify the effectiveness of the term itself.
18.3 If any term or part of any term in these Terms and Conditions, for whatever reason, including a decision by any court, any legislation or any other requirement having the force of law, declared or becomes unenforceable, invalid or illegal, the remainder of these Terms and Conditions shall not be affected and the invalid provision or part shall be replaced or amended, so far as it is necessary to maintain the purpose and continuity of these Terms and Conditions.
18.4 Parties agree that services performed by The Marketing Designer & Co, its employees or agents shall not be deemed to constitute a partnership, join venture, agency relationship or otherwise between Parties.
Lets just agree to be good humans who treat each other with respect!
