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Standard Terms and Conditions

  1. Definitions and interpretation

    1. Clause headings are for convenience purposes only and shall not be used in its interpretation.
    2. Words denoting the singular shall include the plural and vice versa.
    3. The terms contained herein have been fully explained and understood by the parties, no provision herein shall be construed against or interpreted to the disadvantage of any party by reason of such party having or being deemed to have structured, drafted or introduced such provision or by reason of the extent to which any party or its professional advisors participated in the preparation of these terms and accordingly the contra proferentem rule shall not be applied in the interpretation of these terms.
    4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, then notwithstanding that it is only in this interpretation clause, effect shall be given to it as a substantive provision in these terms.
    5. When any number of days is prescribed in these terms, it shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a Saturday, Sunday, or South African public holiday.
    6. Terms other than those defined within this document shall be given their plain English meaning, and those terms, acronyms and phrases known in the graphic design and marketing industry will be interpreted in accordance with their generally known meanings.
    7. Any reference to any statute, regulation or other legislation shall be a reference to that statute, regulation, or other legislation as at the time these terms become enforceable between the parties.
    8. Where any term is defined within a particular clause, other than the interpretation clause, that term shall bear the meaning ascribed to it in that clause wherever it is used in this document.
    9. Any reference to days (other than a reference to business days), months or years shall be a reference to calendar days, months, or years, as the case may be.
    10. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.
    11. Expressions defined in these terms shall bear the same meanings in schedules or the scope of service letters which do not themselves have their own definitions.
    12. For purposes of these terms, “writing” means legible writing and in English and includes any form of electronic communication contemplated in the Electronic Communications and Transactions Act, No 25 of 2002.
    13. The use of the word “including”, “include/s, “in particular” or the like followed by a specific example/s 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/s.
    14. The expiry or termination of this agreement shall not affect those provisions of this agreement which expressly provide that they will operate after any such expiry or termination or which of necessity must continue to have effect after such expiry or termination, notwithstanding the fact that the clauses themselves do not expressly provide for this.
    15. Any reference to any other agreement or document (such as the Service Level Agreement) shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated, or supplemented; and
    16. the “Service Level Agreement” document/s shall be binding on the parties and is not merely for information purposes.
    17. If any conflict arises between these terms and any other related agreement/Service Level Agreement, to the extent the conflicting provisions can reasonably be interpreted so that such provisions are consistent with each other, such consistent interpretation will prevail. Should this not be possible, the terms herein shall prevail.
    18. For purposes of these terms, the following definitions shall apply, unless otherwise stated:

      1. “Agreement” means the Service Level Agreement entered into by the Contractor and the Client including the schedule and any and all appendices attached hereto;
      2. “Business day” – means any day, other than a Saturday, Sunday, or statutory public holiday in South Africa.
      3. “Competitive Activity” means, inter alia, any activity conducted other than in association with the Client which has or may have the effect of enticing or persuading or drawing the Client’s client/s away from.
      4. “Confidential Information” means any and all information, whether written, oral, electronic, or other form, that is disclosed or made available by one party (“Disclosing Party”) to the other party (“Receiving Party”) and that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
      5. “Date of Signature” means the day when the last Party signs the Service Level Agreement;
      6. “Parties” means the Contractor and the Client collectively and a reference to a “Party” means either the Contractor or the Client, as determined from the context of the Service Level Agreement;
      7. “Services” mean the services to be provided by the Contractor to the Client as set out in the Service Level Agreement;
      8. “Service Level Agreement” (SLA) means to the document with the same title and which records the Client’s needs and requirements and any further terms not specifically outlined herein.
      9. “Signature Date” means the date upon which the last Party hereto affixes his/her signature to this Service Level Agreement;
      10. “Trade Marks” mean the trade marks, which are being used in association with the business of the Contractor or the Client as on the Effective Date, from time to time and which may be supplemented from time to time.
      11. “Trade Secrets” mean inter alia, any information of the Client or Contractor (including but not limited to technical or non-technical data, formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans or a list of actual or potential Client/s) which derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use;
      12. “Termination Date” means the date of termination of the Service Level Agreement for any reason whatsoever;
      13. “Terms of Service” means these terms and conditions as updated from time to time by the Contractor and includes any further terms agreed to between the parties and recorded in writing in the SLA.
      14. “The Client” – means the individual or business entity who engages services from the Contractor and whose details are set out in the Service Level Agreement.
      15. “The Contractor” – means The Disrupt Agency (Pty) Ltd a company incorporated in Pretoria, South Africa under company registration number 2022/535552/07 whose principal place of business is at: 28 – 6th Street, Wynberg, Sandton, Gauteng, 2090

  2. SCOPE OF ENGAGEMENT

    1. The Client appoints the Contractor to fulfil the specified obligations as set out in the Terms of service and the SLA.
    2. The Contractor has expertise and professional knowledge and the Client’s wishes to utilize its services.
    3. It is recorded that nothing in the SLA, whether express or implied, shall be construed as creating an employment relationship between the parties;
    4. The Contractor shall not make any promises, representations, warranties or guarantees on behalf of the Client, except with the prior written consent of the Client.
    5. The Contractor shall observe all reasonable directions and instructions given to it by the Client, consistent with the services, and in the absence of any such directions or instructions in relation to any particular matter, the Contractor shall act in such manner as it reasonably considers being the most beneficial to the Client’s interest.
    6. The Contractor offers services in respect of digital marketing and graphic design including but not limited to social media management and any other services agreed to by the parties.
    7. The entire scope of the Contractor’s services appears can be made available on request to the Contractor.
    8. Upon choosing the scope of the services and/or product which the client requires, the parties will record their specific requirements in the ‘Service Level Agreement’ (SLA) document, which will be signed by the parties.
    9. The SLA will be read in conjunction with these Standard Terms of Services.
    10. These terms of service together with those which appear in the SLA shall be reviewed from time to time in accordance with the services and/or product chosen by the Client.
    11. Unless the Client advises otherwise, the Contractor will treat the fact that the Client agrees to the Contractor beginning work as deemed acceptance of these terms.

  3. PAYMENT TERMS

    1. This clause is subject to any alternative payment terms as provided in the SLA.
    2. For any ongoing or monthly services, the Client will be invoiced at the beginning of each month.
    3. Unless expressly excluded, any and all costs and fees (without limitation) for any additional materials which fall outside of the scope of the services will be billed to the Client separately.
    4. Notwithstanding anything to the contrary, any change in pricing and/or additional costs will be communicated to the Client before same should take effect.
    5. The Client shall pay the Contractor for the Services rendered as set out in the SLA from time to time free from any set-off or deductions.
    6. The Contractor will be paid on or before the last day of the Month.
    7. The Contractor acknowledges and agrees that it will not be entitled to claim any remuneration for time spent training or acquiring the skills to deliver the Services unless same are specified in the SLA.

  4. ALTERATIONS AND REVISIONS

    1. The Client agrees that any changes which it requires to be made to any service or product as described in the SLA may incur a separate charge, which will be communicated to the Client by the Contractor.
    2. Unless otherwise agreed, each project and/or service includes the number of minor changes or author’s revisions of the chosen project. Any further changes will be subject to an additional charge which will be communicated to the client before taking place.

  5. DURATION

    1. The duration of services will be as agreed and provided in the SLA taking into consideration the effective date and Termination Date.

  6. DESIGN AND PROJECT DURATION

    1. The Contractor agrees and undertakes to use all commercially reasonable efforts to meet the Client’s requirements and estimated timeframes, however, the Client understands that such timeframes are only estimates and shall not be accepted as a guarantee of delivery.
    2. In this regard the Client agrees not to hold the Contractor liable for any losses associated with any project delays.
    3. If the Contractor is necessitated to take out any software subscriptions, processors, or make content available to the Client as part of the execution of its services, the Client shall only acquire a non-exclusive personal nontransferable license to use such material until the services under the SLA come to an end.
    4. The Client provides the Contractor with permission to display the Client’s name, figure, logo etc. as a reference on the Contractor’s website or other marketing materials during the subsistence of any agreement between the parties as well as the termination thereof, the Client undertakes to inform the Contractor should it require its logo and/or name to be removed from any marketing related material of the Contractor.

  7. SUPPLY OF MATERIALS AND INFORMATION

    1. The Client will provide all content and material for the services required (unless the Contractor has been instructed otherwise).
    2. The Client warrants that any all information supplied to the Contractor is accurate and truthful.
    3. Where the Client supplies the Contractor with any images, videos, wording, and any other information that may be trademarked or protected by copyright laws, the Client warrants that it has obtained any and all the relevant permissions to make use of provided materials.
    4. The Contractor will not include in any of its services, designs, texts, images or other data, content which it deems to be immoral, offensive, obscene, or illegal.
    5. All advertising material must conform to all standards laid down by the relevant advertising standards authorities.
    6. Should any images/or data which the Contractor includes in good faith, which is later determined to be in contravention of these terms, the Client is obliged to allow the Contractor to remove the offending data without any hinderance or penalty.
    7. The Contractor will not be held liable for and is held harmless for any claims of whatsoever nature for the use of any information supplied to the Contractor by the Client.
    8. The Client must ensure the accuracy of content supplied to the Contractor and which should require little to no formatting.

  8. DESIGN FEEDBACK

    1. To ensure timeous completion of services, when the Contractor provides the Client with design concepts and/or requests feedback on a proposal, the Client is required to provide such feedback within 5(five) business days.
    2. If such feedback is not forthcoming and within this stipulated period, the Contractor shall accept that such design and/or proposal has been accepted by the Client unless otherwise agreed between the parties.
    3. All feedback provided by the Client must be recorded in writing by the Client by means of electronic mail. Telephonic instructions will not be acceptable.

  9. INTELLECTUAL PROPERTY

    1. For the purposes of the SLA, all right, title and interest in and to the Intellectual Property created, designed or brought forward (including but in no way limited to designs, printed materials, photographs, videography, and any other deliverables) by the Contractor will be deemed to vest in the Contractor.
    2. Nothing contained in the SLA or otherwise shall confer any assignment or license of any intellectual property belonging to the Contractor to the Client or any third party, unless expressly provided for herein.
    3. The provisions of this terms of service will apply mutatis mutandis to any intellectual property of the Client and shall accordingly remain the property of the Client.

    4. OWNERSHIP AND RIGHTS

      1. All material created or produced by the Contractor for the Client, including but not limited to designs, printed materials, photographs, videography, and any other deliverables (collectively referred to as “Material”) shall remain the sole property of the Contractor until full payment for the Material has been received by the Contractor.
      2. Upon receipt of full payment, ownership of the Material shall transfer to the Client, and the Client shall hold all rights, title, and interest in the Work.

    5. USAGE RIGHTS PRIOR TO PAYMENT

      1. Until full payment is received, the Client is granted a limited, non-exclusive, non- transferable license to use the Material solely for review and approval purposes.
      2. The Client shall not reproduce, distribute, or use the Material for any commercial purposes until ownership has been transferred in accordance with these terms of service, or agreed otherwise between the parties in writing.

    6. RESERVATION OF RIGHTS

      1. The Contractor reserves all rights to the Material until full payment is made by the Client. In the event of non-payment, the Contractor reserves the right to withhold delivery of the Work and to pursue any legal remedies available to recover payment or to protect its intellectual property rights.

  10. CONFIDENTIALITY AND NON DISCLOSURE

    1. The Contractor, by virtue of its association with the Client, will have access to the Client’s intellectual property and private information. The Contractor agrees not to share or use this information for its own benefit or for the benefit of a third party, unless the Client agrees in writing.
    2. In consideration of the disclosure of Proprietary Information by the Client, the Contractor hereby agrees:
      1. To hold the Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions the Contractor employs with respect to its own confidential materials);
      2. Not to make any use whatsoever at any time of such Proprietary Information except to evaluate internally its relationship with the Client; and
      3. Not to copy or reverse engineer any such Proprietary Information.
    3. Information will not be deemed confidential information under this agreement if such information is:
      1. known to either party prior to the receipt thereof;
      2. becomes known to either party, directly or indirectly (independently from any disclosure by either party), from a source other than one having an obligation of confidentiality to either party;
      3. such information becomes part of the public domain or otherwise ceases to be confidential, except through a breach of these terms by either party;
      4. is independently developed by either party without any breach of these terms.

  11. TERMINATION AND REFUNDS

    1. Subject the SLA and these Terms of Service, if the Client terminates or if the parties alters the SLA by agreement at any time after the conclusion thereof, the Contractor reserves the right to render additional costs and retain any and all deposits or payments made to the Client.
    2. In the event of termination, all amounts owed to the Contractor must be paid in full and within 7 days of date of termination.
    3. All terminations must be submitted in writing to the Client.
    4. All material remains the property of the Contractor until final payment is received.
    5. Notwithstanding anything to the contrary, if the services which are being rendered by the Contractor are subject to a minimum timeframe, either party is required to provide the other party with a full calendar month written notice of termination
    6. In the event that a SLA is terminated and/or cancelled as contemplated in this clause, the Contractor will only be remunerated for Services actually rendered up to the date of termination/cancellation.
    7. Either Party can immediately terminate this agreement, without notice, in the event of any legal disability, including Liquidation/Sequestration, whether provisional or final and whether voluntary or compulsory, or under Business Rescue.
    8. Upon termination and or cancellation of this Agreement, the Contractor shall return to the Client all books of account, records, information (including but not limited to any information pertaining to the clients and its login and access details) correspondence and notes concerning or containing any reference to the work or business of the Client, which belongs to the Client in the possession or under the control, directly or indirectly, within 7 (seven) days from the Termination Date.

  12. DISPUTE RESOLUTION

    1. Should a dispute arise between the Parties in regard to any matter arising out of this Agreement or its interpretation or their respective rights and obligations under this Agreement, either Party shall be entitled to convene a meeting for the purposes of resolving the dispute upon written notice thereof to all the other Parties (the “Meeting”). The Party requesting the Meeting shall prepare an agenda for the Meeting and provide the other Party with a copy thereof 1 (One) day prior to the Meeting and the Meeting shall be convened as soon as possible but no more than 4 (Four) days after having received the written notice.
    2. The Parties undertake to co-operate during the Meeting and the Parties undertake to use reasonable endeavours to reach consensus and attempt to resolve the issues or disputes raised in the Meeting.
    3. In the event that the Parties cannot successfully reach consensus or agreement in the parties must refer the matter to mediation under the auspices of the Arbitration Foundation of Southern Africa (“AFSA”) within 21 (Twenty One) days from the meeting.
    4. If the mediation fails to result in the conclusion of a settlement agreement within 21 (twenty one) days of the referral to mediation, then and in that event:
      1. Any party may, in writing within 14 (fourteen) days of the expiry of the 21 (twenty one) day period referred to supra to refer the dispute to arbitration before a single arbitrator to be conducted under the auspices of AFSA at Johannesburg in accordance with AFSA’s expedited rules. The arbitrator shall be agreed upon by the parties within ten days of the referral to arbitration, failing which the arbitrator shall be appointed by the Secretariat of AFSA.
      2. In the event of a party not exercising the option to refer the dispute to arbitration within the stipulated time period, then and in such event the dispute shall be resolved by litigation in an appropriate court having jurisdiction.
      3. The periods for negotiation or mediation may be shortened or lengthened by written agreement between the parties.
      4. This clause will not preclude any party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalization of this dispute resolution process.
      5. This clause is a separate, divisible agreement from the rest of this Agreement and must remain in effect even if the Agreement terminates, is nullified or cancelled for any reason or cause.

  13. BREACH

    1. In the event of breach of this agreement by either party such breach must after notice, be remedied within 7 (seven) days.
    2. Failure to remedy the breach will entitled the innocent to, without prejudice to its other rights in law or in terms of the SLA to:
      1. cancel and/or terminate the SLA;
      2. or to claim specific performance
      3. in either event without prejudice to the party’s right to claim damages.
    3. The Party in beach shall be liable to pay the innocent party’s legal costs of such proceedings on a scale as between attorney and client.

  14. NOTICES AND DOMICILIUM

    1. The Parties choose as their domicilia citandi et executandi as provided in the SLA for all purposes under these Terms of Service and the SLA, whether in respect of court process, notices or other documents or communications of whatsoever nature.
    2. Any notice or communication required or permitted to be given in terms of these Terms of Service and SLA shall be valid and effective only if in writing but it shall be competent to give written notice.
    3. Any Party may by notice to the other Party change the physical address chosen as its domicilium citandi et executandi to another physical address by email, shall be deemed to take effect on the date of despatch (unless the contrary is proved).
    4. Any notice to a Party –
      1. sent by email to its chosen email address stipulated in this clause, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
      2. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium citandi et executandi.

  15. DISCLAIMERS, LIMITATIONS, WARRANTIES, INDEMNITY AND LIABILITIES

    1. The Contractor undertakes to fulfil its obligations as set out in the SLA.
    2. The services contemplated herein must be performed competently and in accordance with Client’s Standards and to the best interests of the Client.
    3. The Contractor shall furthermore:
      1. develop and agree with the Client on a clear strategy to render the Services and to supply the products, as set out in the SLA.
      2. resolve all such occurrences, problems and/or disputes as expeditiously as possible to the Client’s representative.
      3. keep and maintain all records and documents as the Client may require the Contractor to keep in the performance of its duties in terms of these Terms of Service and the SLA.
      4. ensure that it and its sub-contractors (if applicable) will familiarize themselves and comply with any special instructions received from the Client;
      5. ensure that Client’s confidential information is held in the strictest confidence and is not disclosed without the Client’s prior written consent thereto; and
      6. comply with the terms of the Protection of Personal Information Act, Act No. 4 of 2013 (“POPIA”).
    4. The Client shall with regard to the Services :-
      1. Provide any information, documentation and/or access to the Contractor which it needs in performance of its obligations as agreed to in the SLA.
      2. report any occurrences, problems and/or disputes to the Contractor immediately upon becoming aware of such occurrences, problems and/or disputes and provide the Contractor with a reasonable time period within which to resolve such occurrences, problems and/or disputes, as the case may be;
      3. timeously and in accordance with the SLA make payment to the Contractor.
    5. Each Party shall indemnify, defend and hold harmless the other Party against all claims, losses, damages, liabilities, costs or expenses which the other Party may suffer or incur by reason or in respect of:
      1. the death or personal injury of any individual; or
      2. damage to property; or
      3. any third-party liabilities and damages,
    6. arising out of the indemnifying Party’s default under this Agreement, except to the extent that the Party seeking to be indemnified is at fault or is negligent.
    7. No Party shall be liable to the other Party at law, whether based on contract, delict or otherwise, for any indirect, incidental, special or consequential losses or loss of income or profit suffered or incurred by the other Party as a result of the first Party’s acts or omissions hereunder, or the acts or omissions of the first Party’s directors, officers, employees, contractors and agents, except where such indirect, incidental, special or consequential losses or loss of income or profit arise due to the gross negligence, fraudulent conduct or wilful default of the first Party and/or its directors, officers, employees, contractors and/or agents.

  16. FORCE MAJEURE

    1. If either party can’t fulfill its obligations as a result of events beyond its control (force majeure) including war, strikes, natural disasters, or pandemics, the Party so affected shall be relieved of its obligations hereunder during such period that the force majeure occurrence continues and shall not be liable for any delay or failure in the performance of any of its obligations hereunder or for any loss or damages which the other Party may suffer due to or resulting from such delay or failure on the part of the affected Party to perform, provided that written notice of the inability to perform shall be given by the affected Party within 48 (forty eight) hours of the occurrence constituting force majeure.
    2. The Party invoking force majeure shall use its best endeavours to terminate the circumstances giving rise to force majeure and upon termination of these circumstances giving rise thereto, shall forthwith give written notice thereof to the other Party.

  17. GENERAL

    1. Neither party shall be entitled to cede any of its rights and/or delegate any of its obligations under these Terms of Service and the SLA to any one or more persons, without the prior written consent of the other party
    2. These Terms of Service and the SLA contain all the terms and conditions of the agreement between the Parties and no representations, warranties, undertakings or promises of whatsoever nature which are not reduced to writing and agreed upon by both Parties and which may have been given by one Party to the other, other than herein contained, shall not be binding or enforceable by any Party against the other. These Terms of Service and the SLA supersedes and negates any other agreement entered into by and between the Parties.
    3. Neither party shall be bound by any express or implied term, undertaking, representation, warranty, promise or the like not recorded herein.
      1. No alteration, variation or cancellation by agreement of, addition or amendment to, or deletion from these Terms of Service and the SLA or its annexures shall be of any force or effect unless in writing and signed by or on behalf of the parties.
    4. No indulgence, extension of time, relaxation or latitude which either party (“grantor”) may show, grant or allow to the other (“grantee”) shall constitute a waiver by the grantor of any of its rights and the grantor shall not thereby be prejudiced or estopped from exercising any of its rights against the grantee which may have then already arisen or which may thereafter arise.
    5. Should there be any conflict between the provisions of the Terms of Service and the SLA, the Terms of Service will prevail.
    6. Each party shall pay its own costs in respect of the negotiations, the preparation and drawing of the SLA.
    7. In circumstances where any legal action of whatsoever nature arises out of this Agreement, the unsuccessful party shall be liable to pay, on demand, the successful party’s cost on an attorney and own client scale, including collection commission.
    8. These Terms of Service and the SLA shall be exclusively governed by and be interpreted according to the laws of the Republic of South Africa.
    9. Each paragraph, clause or sub-clause of these Terms of Service and the SLA is severable the one from the other, and if any paragraph, clause or sub-clause is found to be defective or unenforceable for any reason by any competent court or arbitrator, the remaining paragraphs, clauses or sub clauses (as the case may be) shall be of full force and effect and shall continue to be of full force and effect.

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