INTRODUCTION
The Client appoints the Brand Specialists to render the Services described below. The Brand Specialists and the Client have reached an agreement on the terms and conditions regulating the provisions of the Services and wish to reduce the terms of this consensus to writing in the form of this Agreement. This Agreement contains a number of words and phrases which have specific meanings denoted by such words being capitalised. Generally speaking, references to a “day” are references to typical business days. In this Agreement, headings are for convenience only and are not intended to be used to interpret the Agreement. If the Agreement refers to a party who is liquidated or sequestrated (or has been through a comparable process under a different legal system), then the Agreement will also be applicable to, and binding on, that party’s liquidator or trustee, as the case may be. Unless this Agreement indicates to the contrary, any references to any gender includes the other gender, a natural person includes an artificial person and vice versa, and the singular includes the plural and vice versa. The contra proferentem rule, or rule of construction that this Agreement shall be interpreted against the Party responsible for the drafting or preparation of this Agreement, shall not apply. Where in this Agreement, provision is made for the Parties (or either of them) to agree on or grant approval in respect of any matter, such agreement or approval shall only be valid and binding on the Parties thereto if reduced to writing and signed by the duly authorised representative of such Parties. The use of the word “including” followed by a specific example shall not be construed as limiting the meaning of the general wording preceding it and the eiusdem generis rule shall not be applied in the interpretation of such general wording or such specific example. Where this Agreement specifies any number of days, the number of days excludes the first day and includes the last day, unless the last day falls on a Saturday, Sunday or gazetted public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or gazetted public holiday in the Republic of South Africa. Any reference to time shall be based upon South African Standard Time. All annexures, addenda and amendments to this Agreement form an integral part of this Agreement and, therefore, the Brand Specialists’ contract with the Client. The words and phrases in the definitions sections below bear the meanings assigned to them and related expressions bear corresponding meanings.
DURATION
This Agreement shall commence on the Commencement Date and terminate on the Termination Date unless terminated with one full calendar months’ notice. If we have not been notified with a full calendar month’s notice then we will proceed to charge the 100% fee for the month ahead. This is applicable to all social media and retainer packages. Social media and retailer packages are a 12-month commitment.
THE SERVICES
The Services as rendered by the Brand Specialists to the Client shall comprise the following: (This is a general contract and services carried out as per invoice) Branding and Graphic Design (If applicable), Advertising including Print and digital advertising (If applicable), Print Services (if applicable), Website Design, amendments, maintenance and SEO (if applicable), Marketing and Social Media Services (if applicable). Any additional services will be attached as an addendum.
FEES
The Client shall, as consideration for the Services to be rendered by the Brand Specialists in terms of this Agreement, effect payment to the Brand Specialists at an hourly rate of R500 per hour with a minimum of one hour. Payment of Fees as consideration for the Services to be rendered by the Brand Specialists in terms of this Agreement shall be charged at 50% of the invoice if the total amount exceeds R3000. The 50% upfront payment is a non-refundable deposit and is requested before a project commences. The remaining 50% will be invoiced after final proofs have been signed off. All requested file types will only be supplied once the remaining 50% has been paid. Social media, retainer packages, third party fees (Including printing and advertising platforms) and any invoices with a total of less than R3 000, will be charged 100% upfront and are non-refundable. Websites will only go live once the 100% payment has been made. Payments will be effected by the following method(s): EFT or debit order. The Client agrees that it shall pay all of the Brand Specialists expenses in recovering any amounts the Client owes the Brand Specialists, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon (if applicable). The client understands that they cannot withhold funds that have been invoiced for due to changes that fall out of the scope of the project quoted on. Our turnaround time is a minimum duration of 1 week. Any urgent work will be charged an additional 10% of the invoice. The cut-off date for payment for the Retainer and Social Media Packages is the 25th of the month. This allows us to meet our deadlines as work will only be scheduled for design once payment has been made. Our standard packages and retainer packages do not include third party costs such as printing or advertising.
QUALITY OF SERVICES
The Brand Specialists warrants to the Client that the Brand Specialists will perform the Services with reasonable care and skill and in accordance with generally recognized commercial practices and standards in the industry for similar services; the Services will conform with all descriptions and specifications provided to the Client by the Brand Specialists; The Brand Specialists hereby undertakes to ensure that the standard of the Services it shall render to the Client in terms of this Agreement shall be in accordance with this Agreement, and further that such Services shall be performed with a minimum duration of 1 week; the Services and deliverables will be provided in accordance with all applicable legislation from time to time in force, and the Brand Specialists will inform the Client as soon as it becomes aware of any changes in that legislation; the provisions of this clause shall extend to any substituted or remedial services provided by the Brand Specialists to the Client.
REVISIONS (UNLESS OTHERWISE STATED ON THE INVOICE)
The Brand Specialists will offer one revision session (up to 30 minutes) at no additional cost to the Client on request unless otherwise stated. Any additional revisions will be charged at a rate of R500 per hour with a minimum of one hour. All revisions are subject to a maximum period of 2 calendar weeks. If a revision exceeds this 2-week period, the additional hours will be charged at R500 per hour with a minimum of one hour. If amendments are requested to an approved social media content plan, these will also be charged at R500 per hour with a minimum of one hour. If the content plan has not been approved before the new month, all posts will be scheduled regardless and Brandsoul will not be liable for incorrect information.
SERVICE VARIATION
If a Service Variation is determined at the reasonable discretion of the Brand Specialists, the Brand Specialists reserves the right to vary the Fees accordingly. The Brand Specialists shall obtain the written consent of the Client to any variation in the Fees charged in respect of the Service Variation. Should the Client fail and/or refuse to consent to such variation of the Fees, the Brand Specialists shall not be obliged to continue with the Services as per the Service Variation.
INTELLECTUAL PROPERTY
The Parties agree that all rights to Intellectual Property owned by the Brand Specialists shall remain vested in the Brand Specialists and/or its licensors (if any) and shall include all plugins used for website design services. Intellectual Property belonging to the Client shall remain vested in the Client. Intellectual Property produced by the Brand Specialists for the Client shall remain vested in the Brand Specialists, even after the full payment has been made. By supplying text, images, and other data to BrandSoul for inclusion in the Client’s website or marketing material, the Client declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such material will remain with the Client or rightful copyright or trademark owner. The Client agrees to fully indemnify and hold BrandSoul free from harm in any and all claims resulting from the Client in not having obtained all the required copyright and/or any other necessary permissions. The Brand Specialists reserves the right to use any artwork or designs for promotional purposes unless otherwise agreed upon. Copyright of all graphic design work and marketing material is retained by BrandSoul including copy drafts, concepts, ideas, pitches, and unpublished work. Copyright is only assigned to the Client once all invoices have been settled. We will provide multiple design concepts for clients to consider, however only one can be fulfilled as part of the contract. The Client agrees to allow BrandSoul to place a small credit on printed material, exhibition displays, advertisements and/or a link to the BrandSoul’s own website on the Client’s website. This will usually be in the form of a small logo or line of text placed towards the bottom of the page. The Client also agrees to allow BrandSoul to place websites and other designs, along with a link to the Client’s site on the BrandSoul’s own website for portfolio and demonstration purposes and to use any designs in its own publicity unless agreed otherwise.
TERMINATION
The Agreement may be terminated by either Party in accordance with clause 15.1.1 below; Either Party shall be entitled to terminate this Agreement immediately by written notice to the other Party if: the other Party commits a material breach of this Agreement and fails to remedy such breach within 14 (fourteen) days of receipt of written notice requiring it to do so; or the other Party becomes insolvent or liquidated, or has a petition filed by or against it under any bankruptcy, reorganization, insolvency, or moratorium laws, or has a receiver appointed in respect of any of its assets, or makes an assignment for the benefit of its creditors, or ceases or threatens to cease to carry on business. Notwithstanding the provisions of this Agreement, the Brand Specialists may terminate this Agreement for any reason whatsoever on 1 (one) months’ written notice to the Client. The 50% or 100% upfront fee is non-refundable should the Client terminate the project. This Agreement shall commence on the Commencement Date and terminate on the Termination Date unless terminated with one full calendar months’ notice. If we have not been notified with a full calendar month’s notice then we will proceed to charge the 100% fee for the month ahead. This is applicable to all social media and retainer packages. Social media and retailer packages are a 12-month commitment.
CONFIDENTIALITY
Neither Party shall without the prior written consent of the other disclose or otherwise make available to any third party any Confidential Information except for the purpose of exercising its rights or performing its obligations under this Agreement. The receiving Party may disclose Confidential Information only to its officers, employees, and professional advisors to the extent that such persons need to know it for the purposes of exercising its rights or performing its obligations under this Agreement and shall instruct such persons to keep such Confidential Information confidential on terms at least as restrictive as those set out in this Agreement. Either Party shall be entitled to make reference to the existence of this Agreement and to disclose and publicize a general description of the Services, unless the disclosing Party specifically identifies such information as being Confidential Information. Either Party shall be entitled to disclose details of its own financial performance.
PROHIBITION ON INTERFERENCE AND SOLICITATION
Neither Party shall (other than with the prior written consent of the other) during the continuance of this Agreement or for a period of 1 (one) year thereafter: furnish any information or advice to any person with the intent or effect of inducing or attempting to induce any employee, agent, contractor, consultant, supplier, customer, or representative of the other Party to terminate his/her/its employment or relationship with that other Party; or permit any of its employees, agents, contractors, consultants, suppliers, customers, or representatives who have been involved in the provision or receipt of the Services, to be employed or engaged in any capacity by any business concern which is a competitor of the other Party.
LIABILITY
The Brand Specialists make no representations and gives no warranties or guarantees of any nature whatsoever in respect of the Services. All warranties which are implied or residual at common law are hereby expressly excluded. The Client agrees that the Brand Specialists shall not be liable to the Client or any other person for any Losses whatsoever and howsoever incurred or suffered by the Client or any other person, including any Losses arising from the negligence of the Brand Specialists or any of their agents, officers, contractors, or employees. The Client further indemnifies the Brand Specialists against any Losses suffered by the Brand Specialists arising from the Client’s negligence or failure to provide accurate, complete, and timely information to the Brand Specialists, and hereby irrevocably waives any claim which the Client may have or acquire against the Brand Specialists arising out of the Agreement or the Services. The Client further agrees that the Brand Specialists will not be liable for any claims arising more than 1 (one) year after the cause of action for such claim first arose, regardless of whether such cause of action arose at the time of the Agreement or after. The Client indemnifies and holds the Brand Specialists and/or its Associates harmless against all Losses which the Brand Specialists and/or its Associates may suffer or incur arising directly or indirectly out of or in connection with: any information and/or documentation prepared by the Brand Specialists in accordance with the instructions, specifications or requirements of the Client or any third party on the Client’s behalf; or the Brand Specialists’ use of any information supplied by the Client which is inaccurate, incomplete, or otherwise defective, or arising from the failure to supply information which would have been material to the preparation of such documentation; or any breach of this Agreement by the Client.