Terms & Conditions
STANDARD SERVICE TERMS AND CONDITIONS
Last updated 16 August 2019
This Standard Service Terms & Conditions replace all previous Standard Service Terms & Conditions and is effective from the date of issue. Please read this Standard Service Terms and Conditions carefully before using the https://rasdigitalmarketing.com website and its services operated by Ras Digital Marketing (Pty) Ltd.
Your access to and use of the website and service is conditioned on your acceptance of and compliance with this Standard Service Terms and Conditions. This Standard Service Terms and Conditions apply to all visitors, users, clients, and others who access or use the website and service.
By accessing or using the website and service you agree to be bound by these terms and conditions. If you disagree with any part of the terms, then you may not access the website and service.
This Standard Service Terms & Conditions form the agreement between RAS Digital Marketing (Pty) Ltd (the “Service Provider”) and the Client (the “Client”);
The section headings inserted into this Standard Service Terms & Agreement have been inserted for convenience only and shall not be considered in its interpretation;
Any reference to the singular includes the plural and vice versa, any reference to natural persons includes legal persons and vice versa and any reference to a gender includes the other gender;
Nothing in this Standard Services Terms & Conditions or any other terms and conditions shall be construed as creating any agency, partnership, or joint venture relationship between the parties and neither party shall be capable of binding the other to any obligation, as may be expressly contemplated and provided for herein;
This Standard Services Terms & Conditions and all other terms and conditions and policies shall be governed by, construed, and interpreted in accordance with the laws of South Africa, the contra proferentem rule whereby an ambiguity may be interpreted against the party responsible for its drafting shall be excluded from the interpretation hereof;
The Client must be at least 18 years of age to use the Services; and by using the Services or agreeing to this Standard Service Terms & Conditions, the Client warrant and represent to the Service Provider that the Client is at least 18 years of age.
In this Standard Services Terms and Conditions, unless clearly inconsistent with or otherwise indicated by the context, the following expressions bear the meanings set out hereunder:
- “Agreement” means an agreement between the Service Provider and the Client creating mutual obligations enforceable by law and set out in this Standard Services Terms & Conditions together with all annexures hereto;
- “Client” means the person or entity to whom and/or on whose behalf the Service Provider supplies the Services;
- “Campaign specification” shall mean campaign requirements that require approval for the artwork, brand messages, lead magnet, to be used in the social media ads, prior to launching the campaign;
- “Content” means any artwork, text or any other type of text, data that will be used in the Services provided;
- “Electronic signature” shall mean an electronic signature as defined by the Electronic Communications and Transactions Act No. 25 of 2002;
- “eMail” shall mean electronic communication;
- “Lead magnet” shall mean a tempting free offer which is of value to a prospect in exchange for their contact information;
- “Notices” means the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations, or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive notice, and implied notice;
- “Personal Data” means personal data as defined in the Cookie, Privacy Policies, and the Protection of Personal Information (POPI) Act No. 4 of 2013;
- “Proposal” means a written document that communicates a proposed service to the Client’s consideration, which can include strategy ideas, delivery time frames, estimated costs and possible ROI;
- “Services” means all services or products provided by the Service Provider;
- “Project Management Plan” means an electronic document which is a detail plan of action whereby project management methodology is used to deliver the Service and is based on a work breakdown structure, time schedules, responsibilities, and other requirements;
- “Third Party Services” means services provided by persons or entities other than the Service Provider that are procured by the Service Provider for the benefit of the Client;
- “Working Day” means any day other than a Saturday, Sunday, or public holiday in the Republic of South Africa.
THIRD PARTY SERVICES
The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (“Third Party Services”);
The Client acknowledges that the Third Party Services will be governed by that third parties terms and conditions and that the Service Provider cannot provide any warranties in respect of the Third Party’s Services and that the Service Provider will not be liable to the Client for any delays and/or failings in respect of the same.
The Service Provider is a digital and marketing agency. This means that the Service Provider may perform work for other clients, including companies that are deemed as direct or indirect competitors of the Client. If the Client is concerned that the Service Provider provides similar services to the Client’s competitors, the Client May decide to discuss the matter with the Service Provider concerning its non-disclosure and confidentiality clause, if any further action is required.
PROVISION OF INFORMATION & CONTENT
The Client shall provide the Service Provider with the required information which the Service Provider may reasonably require or request from the Client in order to facilitate or enable the provision of the Services by the Service Provider;
The Client shall provide the Service Provider with a branded Lead Magnet as per the Client’s branding requirements. The goal of the Lead Magnet is to maximize the number of targeted leads for an offer. If a branded Lead Magnet, is not available, the Client may request the Service Provider to brand an existing or develop a new Lead Magnet for an extra fee;
The Service Provider shall not be liable for any service delays or service interruptions occasioned by the Client’s non-compliance with the provisions;
The Client hereby indemnifies and holds the Service Provider harmless against all liabilities, costs, and expenses which the Service Provider may incur as a result of any claim:
- for breach of any Third Party Intellectual Property Rights arising from the use by the Service Provider, including specifications, written materials, data, tables, info construed as facts supplied by the Client or any person acting on the Client’s behalf; and
- arising as a result of any content posted by the Client or any third party to any social media platform or by means of any mail or other form of communication service that is managed or maintained by the Service Provider for the Client.
INTELLECTUAL PROPERTY RIGHTS
Subject to the provisions of this Standard Services Terms & Conditions, all original content and intellectual property developed for the Client during the provision of the Services by the Service Provider shall belong to the Client on cancellation and if paid in full for the Services;
Where the Service Provider incorporates the intellectual property of any third party into the Services or authored for or by the Client, the Service Provider shall ensure that it has all necessary permissions and consents required to enable it to do so. The Service Provider shall ensure that the Client be licensed to make use of any such Third Party intellectual property where necessary and to be disclosed to the Client by the Service Provider;
The Client agrees to indemnify the Service Provider in respect of any failure on the Client’s part to comply with this Standard Services Terms & Conditions, or to abide by the terms and conditions of any specific licences granted to it in respect of any such Third Party intellectual property;
The Client acknowledges and agrees that the Service Provider shall exclusively own and retain all rights in the know-how, methods, tools and processes that it uses in the normal course of its business or that have been designed or created for the purposes of carrying out the Services and that its personnel may re-use any skills developed by them during the performance of the Services without being in breach of the terms hereof.
PROJECT MANAGEMENT PLAN
The Service Provider undertakes to supply the Services in a professional and skilful manner using a Project Management methodology to deliver the Services;
The Client is provided with an account and access to the Project Management Services which will allow the Client to view the project, communicate with the Service Provider, complete electronic signatures, upload or download documentation or images relevant to the Service;
Once the Service Provider determines that the design or development of the campaign specification, has been completed or is ready for the Client to review, the Service Provider will notify the Client in writing;
It shall be the Client’s exclusive responsibility to ensure that the campaign specification, that will be used in the Services is agreed and approved by both parties. The consequences of any failure so to do, financial or otherwise, will be for the sole account of the Client who shall be bound to accept The Service Provider reasonable interpretation and understanding of the Client’s requirements as documented in the campaign specification.
Either party may request or recommend a change to the Services by preparing and submitting a written Change Request which shall set forth any requested or proposed change;
The Service Provider shall have the sole discretion to accommodate minor changes or alterations to the Services or project plan;
The Client agrees that any changes required to be carried out after invoice payment, will be charged for by the Service Provider on a time and materials basis;
The Service Provider shall not be responsible for any amendments made by the any Client third party, before or after invoice payment;
The Service Provider and the Client shall communicate in writing, or shall meet, to discuss any Change Request as soon as is reasonably practicable;
Any agreement to a Change Request shall become valid as an amendment to the current Services, only when recorded in writing and signed by an authorised representative of each party;
Until such time as any Change Request is formally agreed to in writing and becomes effective, the Service Provider shall, unless otherwise agreed in writing, continue to perform and to be paid as if such change had not been agreed to;
Each Change Request or any additional work will be accompanied with a draft proposal and quotation and once agreed an invoice for payment will be served for payment, as per this Standard Service Terms and Conditions.
PROJECT ADDITIONAL FEES
The Service Provider reserves the right to charge a reasonable fee for considering Change Requests submitted by the Client and for preparing service impact assessments or quotations related thereto which fee shall be agreed upon between the parties prior to the submission of any such assessment or quote to the Client;
Additional project charges may be generated due to Change Requests from the Client, that fall outside the scope of the Services the Service Provider provides the Client;
These additional project charges shall be payable to the Service Provider on the specific basis set forth in any quotation and invoice in accordance with the Service Provider prevailing standard rates for time and materials, where applicable or as otherwise agreed;
The Service Provider reserves the right to increase this rate depending on the nature of work requested. The rate for each project will be clearly indicated in the quotation provided;
The pricing will be reviewed on a quarterly basis, and any increases to the hourly or project rate will be discussed and agreed with Client;
All Change Requests are formally documented, electronically approved by both parties and attached to the original project plan as an appendix of change requests to the project plan, which is enforced by law.
The Client acknowledges that consulting work is done by telephone or electronic media, or physical appearance at the Client’s premises, and will be agreed by both parties prior to any consultation provided based on an agreed quotation and invoice;
For consulting work, daily hours invoiced shall be limited to 8 hours. Consultation quotations are based on standard working days. A standard day is deemed to be eight hours, normally between 08:30 am and 04:30 pm, Monday to Friday.
Should the consultation be outside these standard working hours (based on Client deadlines), overtime rates at time and a half will be applied. For a Sunday or public holiday, double rates will be applied. For travel required over a Saturday, Sunday and/or public holiday, AA travelling rates will be applied.
Consulting costs are subject to change based on final assessment of the scope of Services required. Where the scope changes, revised pricing will be provided, if time allows. If not, the changes will be noted in the quotation, approved by the Client, and invoiced at a later stage.
For consulting work, detailed hourly timesheets will be kept and where resource hours are allocated but not used, a credit may be passed to the Client in accordance with our Standard Service Terms and Conditions. Additional time required over and above the allocated hours will be discussed and agreed upon with Client.
For consulting work, expenses incurred for consulting specific travel, accommodation, and communication (cell phone call charges) are not included in the standard hourly rates quoted and will be charged at cost. This includes travel to the primary Client site if the Client is located outside of a 100 km radius from Umhlanga Rocks, Durban, KwaZulu Natal, South Africa. Should the Client prefer, the standard hourly rate can be adjusted to include these costs.
Local and international travel expenses, such as airline tickets, visas, medical insurance, inoculations etc., will be charged to the Client at cost, where applicable.
INVOICING AND PAYMENT
The first quotation is sent to the Client by means of electronic email, where after the Client is requested to create an account on the Service Provider’s Customer Portal, where the Client will have access to its estimates / quotations, invoices, payments, and statements.
All payments for regular Services will be done in advance based on the approved quotation and invoice, where the invoice is sent immediately on the acceptance of the quotation and terms and conditions;
Additional work requested by a Change Request or Consultation where a 50% advance will be required;
Invoice payments should be made by means of direct deposit or electronic funds transfer (EFT) or Credit Card into the Service Provider bank account, the details of which shall be specified on the Service Provider invoices or otherwise provided to the Client;
Clients are requested to email the Service Provider a copy of the proof of payment once payment has been made;
All invoices supplied by the Service Provider shall describe the nature of the services invoiced for, the billing period where applicable and the fee charged to the Client;
All invoices shall be payable by the Client on presentation of the invoice and all payments shall be made without any deduction, set off or exchange;
In the event that the Client wishes to dispute all, or any portion of an invoice supplied by the Service Provider, then, and in that event, the Client shall promptly notify the Service Provider in writing of its full reasons for doing so. Upon notification of a dispute the parties shall attempt to resolve such dispute in good faith and the Client shall continue to make payment to the Service Provider of all undisputed invoices or undisputed components of any invoices;
In the case of partial or total non-payment by the Client of any charges due to the Service Provider under this Standard Service Terms & Conditions, including in respect of any disputed invoice or disputed component thereof which is later resolved in favour of the Service Provider, the Client shall be liable to make payment of interest on the amount payable at the rate of 2% per month calculated on a daily basis from the date such charges first became due and compounded monthly in arrears until receipt of full payment by the Service Provider;
If and where applicable, the Client shall pay all taxes of whatsoever nature that may be levied or charged against the Services supplied in terms of this Standard Service Terms and Conditions or otherwise arising out of the ordinary fulfilment of the agreement, as well as any materials or travel expenses reasonably incurred by the Service Provider in the execution of the Services, provided that such expenses shall be approved of by the Client in writing and shall exclude any travel undertaken by any member of the Service Provider personnel between their ordinary place of residence and their ordinary place of work. Unless expressly indicated to the contrary, all fees and charges outlined in any terms and conditions shall be indicated exclusive of VAT.
A monthly campaign performance report will be made available in writing thirty (30) days from the start date of signing the agreement, which is emailed to the Client’s email address or the person authorised to receive such email. If no cancelation was received any subsequent monthly campaign reports will be made available on the same day of the month;
In some cases, a Campaign Optimisation Report will be made available, the focus is on improvements to increase the campaign effectiveness. If a recommendation, is outside the scope of the current Service, both parties will agree in writing concerning the request.
The Client acknowledges and agrees that it is in the best position to identify and evaluate the potential impact, benefits and risks associated with or arising out of Services including insofar as they relate to its activities and stakeholders;
The Client has expressly arranged and procured professional indemnity and insurance to cover and insure against any claim that may be made against the Service Provider prior to the commencement of the Services, and to furnish the Service Provider with proof of such insurance;
The Service Provider shall not be liable to the Client, nor third party, or any individual or organisation in respect of any claim for any damages or loss including special, exemplary, indirect, incidental, consequential, punitive or tort damages arising out of, or in connection with this Standard Service Terms & Conditions or the Services;
Under no circumstances and in no event shall the Service Provider be liable to the Client, nor any third party to whom the Client may cede any of its rights where authorised to do so in terms of this Standard Service Terms and Conditions or any other terms and conditions or policies, in respect of any claim made against the Service Provider or arising out of the Services or any act or omission of the Service Provider other than a claim for an insured event or circumstance expressly contemplated and provided for by the insurance cover referred;
The Service Provider shall have no liability to the Client or any other person arising from any act or omission of a Third Party Service provider. The Service Provider’s sole and exclusive responsibility in relation to Third Party Services shall be act with reasonable diligence and care in selecting Third Party Service providers and in responsibly managing the Client’s account with any such Third Party where applicable;
Under no circumstances shall the Service Provider be liable to the Client for any other claims including any claims for consequential or indirect damages or loss, including loss of business or loss of profits.
The Client shall not during the currency of this agreement, nor within a period of twelve months following its termination, without the prior written consent of the Service Provider, hire or engage, nor offer to hire or engage, directly or indirectly, whether as an employee, consultant, independent contractor or in any other capacity, any person who was at any time during the period of this agreement an employee or contractor of the Service Provider;
Where the Client breaches this clause, or where a related person to the Client within the meaning of section 2 of the Companies Act takes any action that would constitute a breach if taken by the Client, the Client shall be liable to make payment of an amount to the Service Provider that is equal to the gross remuneration that the relevant employee or contractor would have received if he or she had been employed on a full time basis for three months by the Service Provider at his or her last remuneration level.
NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
Both Parties understand and agree that each Party may have access to the confidential information of the other party. For the purposes of this Standard Service Terms & Conditions, “Confidential Information” means proprietary and confidential information about the Disclosing Party’s (or it’s suppliers’) business or activities. Such information includes all business, financial, technical, and other information marked or designated by such Party as “confidential” or “proprietary”;
Confidential Information also includes information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. For the purposes of this Standard Service Terms & Conditions, Confidential Information does not include:
- information that is currently in the public domain or that enters the public domain after the signing of the agreement;
- information a Party lawfully receives from a third Party without restriction on disclosure and without breach of a non-disclosure obligation;
- information that the Receiving Party knew prior to receiving any Confidential Information from the Disclosing Party;
- information that the Receiving Party independently develops without reliance on any Confidential Information from the Disclosing Party;
Each Party agrees that it will not disclose to any Third Party or use any Confidential Information disclosed to it by the other Party except when expressly permitted in writing by the other Party. Each Party also agrees that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control;
Any copies or reproductions of the Proprietary Information shall bear the copyright or proprietary notices contained in the original;
Receiving Party shall promptly advise Disclosing Party in writing if it learns of any unauthorized use or disclosure of Proprietary Information by any Receiving Party Personnel or former Receiving Party Personnel;
Disclosure is, however, permitted to the extent that any such disclosure is:
- required by law;
- to the Restricted Party’s employees, agents or professional advisers where it is reasonably necessary or desirable to enable the Restricted Party to comply with this Standard Service Terms & Conditions provided that before the disclosure takes place the Restricted Party makes such employees, agents or professional advisers aware of its obligations of confidentiality under this Standard Service Terms & Conditions and at all times procures compliance by such employees and agents therewith; or made with the prior written consent of the other party;
Each party agrees that the provisions of this section shall survive the termination of any agreement between the parties.
TRANSFER OF RIGHTS AND OBLIGATIONS
The Client shall not cede, assign, or transfer any of its rights or obligations in terms of this Standard Service Terms & Conditions nor any terms and conditions without the prior consent in writing of the Service Provider.
Should any dispute, disagreement or claim arise between the parties concerning this Standard Service Terms & Conditions, or any other terms and conditions or policies, the parties shall endeavour to resolve same by negotiation by the respective Project Managers, in the first instance, and thereafter by a senior executive of each party;
The parties hereby consent to the non-exclusive jurisdiction of the Durban Magistrates Court, 29 Somtseu Rd, Stamford Hill, Durban, 4025, South Africa for any claim in money up to the value of R 1 million;
The Service Provider shall be entitled to the award of legal costs in any litigation arising in terms of this Standard Service Terms & Conditions or any other terms and conditions or policies on the scale of attorney and client.
Unless expressly provided to the contrary in this Standard Service Terms & Conditions, the Client shall be entitled to terminate the provision of the Services by the Service Provider at any time, with thirty (30) days’ notice, provided that the Service Provider shall be entitled to retain in its sole and absolute discretion any payments or deposits advanced by the Client at any time prior to providing notice of termination;
Either the Service Provider or the Client shall have the right to terminate this agreement by written notice if any of the following events occurs with respect to the other (the “Defaulting Party”):
- the Defaulting Party is in material breach of any of its obligations hereunder and in the case of a remediable breach fails to remedy within 7 Working Days of receipt of a notice requiring that the breach be remedied;
- any resolution is passed, or order made for the winding-up or administration of the Defaulting Party otherwise than for the purposes of a reconstruction or amalgamation;
- a receiver is appointed over any of the assets of the Defaulting Party or any arrangement or composition is made with the creditors of the Defaulting Party; or
- the Defaulting Party ceases or threatens to cease to carry on business or suspends payment of all or substantially all of its debts or is unable to pay its debts as they fall due.
The Service Provider shall have no liability to the Client in respect of anything which, apart from this provision, may constitute a breach of this Standard Service Terms & Conditions arising by reason of Force Majeure, which for the purposes of this Standard Service Terms & Conditions shall mean and include any circumstances beyond the reasonable control of the Service Provider including, but not limited to, acts of God, fire, flood, acts or regulations of any governmental or supra-national authority, war or national emergency, accident, riots, civil commotion strikes, lock- outs, labour strikes, or breakdown or interruption of power, communication of transportation services.
All communications and reporting otherwise specifically provided for in elsewhere in this Standard Service Terms & Conditions, any notice or other document to be given under this Standard Service Terms & Conditions shall be given in writing and shall:
- if delivered by courier service be deemed to have been duly received by the addressee on the date of delivery;
- if posted by prepaid registered post be deemed to have been received by the addressee on the 8th day following the date of such posting; or
- if sent by electronic mail to a correct address for the addressee, be deemed, until the contrary is proved by the addressee, to have been received within 1 hour of sending where transmitted during the hours of 08:30 – 16:30 of any business day or at noon on the following business day where transmitted outside of such business hours;
Notwithstanding anything to the contrary contained in this Standard Service Terms & Conditions, a written notice or communication received by one of the parties from the other, including a communication by way of electronic mail, shall constitute adequate written notice or communication to such party.
Failure or delay by either party to exercise or enforce any right conferred upon it by this Standard Service Terms & Conditions shall not be deemed to be a waiver of any such right or of any other right hereunder.
The Service Provider and the Client warrants that it is legally entitled to enter into this Standard Service Terms & Conditions; and that the performance of its obligations under this Standard Service Terms & Conditions will not in any way constitute an infringement of any other person’s rights including the intellectual property rights of any third party; that the persons signing or accepting this Standard Service Terms & Conditions on behalf of it are duly authorised to do so; and furthermore that its entry into and performance of this Standard Service Terms & Conditions does not and will not violate any terms and conditions and policies to which it is a party or is binding on it;
Each party’s undertakings set out in this Standard Service Terms & Conditions shall be the full extent of its obligation to the other party concerning its performance or non-performance under this Standard Service Terms & Conditions. Accordingly, except as aforesaid, all warranties, conditions or representations, expressed, implied, statutory or otherwise and whether arising under this Standard Service Terms & Conditions or under any prior Standard Service Terms & Conditions or in oral or written statements made by or on behalf of either party in the course of negotiations with the other party or its representatives are hereby excluded, insofar as the same are capable of exclusion by law;
As expressly provided for in this Standard Service Terms & Conditions, no warranty, condition, undertaking, term, or otherwise is given or to be implied as to the suitability of any services supplied by the Service Provider for the Client for any particular purpose including compliance with any legal obligation to which the Client may be subject, or for use under any specific conditions, notwithstanding that any such purpose or conditions may be known or made known to the Service Provider and all such warranties, conditions, undertakings and terms are hereby expressly excluded.
As expressly provided by this Standard Service Terms & Conditions no amendments or variations of this Standard Service Terms & Conditions shall be effective unless agreed to in writing by the duly authorised representatives of the Service Provider and the Client.
The Service Provider reserves the right, at their sole discretion, to modify or replace this Standard Services Terms and Conditions at any time. If a revision is material, the Service Provider will try to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at their sole discretion;
By continuing to access or use our website and service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the website and service.
If you have any questions about these Terms, please contact us.
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