TERMS AND CONDITIONS
Date of issue: 08 August 2020
This Terms and Conditions replaces all previous Terms and Conditions and is effective from the date of issue. Please read this Terms and Conditions carefully before using our website and services.
By using our services, you agree to be bound by these terms and conditions and all other terms and policies. If you disagree with any part of the terms and conditions, then you may not use the service.
This Terms and conditions and all other terms and policies form the agreement between RAS Digital Marketing (Pty) Ltd (the “Service Provider”) and the Client (the “Client”).
The section headings inserted into the various policies, services and terms on this page 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 Terms and 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 Terms and 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 Agreement, the Client warrant and represent to the Service Provider that the Client is at least 18 years of age.
- “Agreement” means an agreement between the Service Provider and the Client creating mutual obligations enforceable by law and set out in this Terms and Conditions together with all other terms and policies.
- “Subscription” a subscription is an amount of money that is paid on a monthly basis for a specific chosen marketing service over a indefinite period and is only stopped on the cancellation by the Client.
- “Client” means the person or entity to whom and/or on whose behalf the Service Provider supplies the Services.
- “Campaign specification” shall mean specific campaign requirements that require approval from the client for the artwork, brand messages, lead magnet, to be used, 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
- “Customer” means a person or entity that has ordered or bought a product or service from the Client.
- “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” is a person or entity who has shown interested in the Client’s product or service, this means a lead is not a customer, it is the Client’s responsibility to engage the lead until the lead is converted into a customer.
- “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.
- “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.
Proprietary information exchanged here under shall be treated as such by the Client. This information shall include, but not be limited to, the provisions of the services, including the website, present or future apps and services, logos, blogs, linking to any page or post, API, code, and databases. The Client cannot tamper with those or use them without authorisation.
Nothing gives the Client the right to use the Service Provider’s name or any of its trademarks, logos, domain names, and other distinctive brand features, services pages, posts, and pricing structure. The Client further agrees to not decompose, disassemble, decode, or reverse engineer any of the Service Provider website, code or technology delivered to Client or any portion thereof.
The Client acknowledges that no direct linking or back linking to any webpage or web post, logos or trademarks are is allowed, without the distinct authorisation in writing by the Service Provider.
INTELLECTUAL PROPERTY RIGHTS
Subject to the provisions of this Terms and 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 Terms and 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.
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 Terms and 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 Terms and 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 Terms and 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 Terms and 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.
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 Terms and Conditions arising by reason of Force Majeure, which for the purposes of this Terms and 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, national and international calamities, 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.
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.
SUBSCRIPTION / INVOICING AND PAYMENT
The client acknowledge that two payment methods exists a subscription method for the purchase of services through a paygate or a standard service purchase which is an invoice presented by the Service Provider.
All payments will be done in advance based on an invoice presented by the paygate or sent by email where the customer must except the Terms and Conditions.
The merchant outlet country at the time of presenting payment options to the cardholder is South Africa. The transaction currency is South African Rand (ZAR) and acknowledges that the Client pay the price the Client see, which is in Rands. No VAT is charged because the Service Provider is in the process of registration.
The Client accepts that the Service Provider use a merchant account to receive payments and the payment gateway is through PayFast. The merchant accepts credit and debit cards or EFT.
TERM AND TERMINATION
Subscription term and renewal: The Client’s initial subscription period will be specified in the invoice and receipt, and, unless otherwise specified, the Client’s subscription will automatically be renewed on a monthly basis, until cancelled by the Client.
Standard Service term & renewal: The Client’s monthly service period will be specified in the invoice and payment receipt, and, unless otherwise specified, the service period will be renewed based on a new monthly service invoice, and the Client’s payment thereof.
Notice of non-renewal: Unless otherwise specified in the Client’s service invoice, to prevent renewal of your subscription, you must cancel it in the PayFast website. The deadline for cancellation is at least 12 hours before the next renewal date/time.
Early subscription cancellation: The Client may choose to cancel your subscription early at the Client’s convenience provided that, The Service Provider will not provide any refunds of prepaid fees or unused subscription fees.
Early standard service cancellation: Here the Client may choose to cancel the standard service early at their convenience. The Service Provider will determine the balance of the marketing spend if not yet paid to a third Party Provider. See refunding clause.
Termination for cause: Either party may terminate this Agreement for cause, as to any or all Subscription Services or Standard Service Agreement : (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
STANDARD SERVICE REFUND
The Client may choose to cancel the standard service early at their convenience.
The Service Provider will determine the balance of the marketing spend budget, if not yet paid to a third Party Provider, within a 30 day service period.
The refund excludes the services already rendered, marketing spent paid and banking transfer fees, which means the refund is only based on the balance of the marketing spend budget of the Client within a 30 day service period. The Service Provider will provide a communication concerning the refund to the Client. If no objection is received from the Client, the Service Provider will go ahead with the refund to the Client.
To receive the refund the Client ensures that the Service Provider has got the latest banking details of the Client whereupon the amount will be transferred by EFT to the Clients account within seven (7) to Fourteen days (14) days, of the refund communication to the Client.
The Service Provider and the Client warrants that it is legally entitled to enter into this Agreement and that the performance of its obligations under this Terms and 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 Terms and Conditions on behalf of it are duly authorised to do so; and furthermore that its entry into and performance of this Terms and 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 Terms and Conditions shall be the full extent of its obligation to the other party concerning its performance or non-performance under this Terms and Conditions. Accordingly, except as aforesaid, all warranties, conditions or representations, expressed, implied, statutory or otherwise and whether arising under this Terms and Conditions or under any prior Terms and 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 Terms and 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.
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 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 Terms and 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 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 indemnify and hold the Service Provider harmless from and against any and all claims, judgements, awards, costs, expenses, damages and liabilities (including reasonable attorney fees) of whatsoever kind and nature that may be asserted, granted or imposed against the Service Provider directly or indirectly arising from or in connection with Client’s marketing or support services of the product or services or the unauthorised representation of the product and services or any breach of this Terms and Conditions and other terms and conditions by the Client.
The Client warrants that everything it provides the Service Provider to employ in any Services or project is legally owned or licensed to the Client.
The Client agrees to indemnify and hold the Service Provider harmless from any and all claims brought by any third-party relating to any aspect of digital marketing services, including (but without limitation to) any and all demands, liabilities, losses, costs and claims including legal fees arising out of injury caused by the Client’s products/services, material supplied by client, copyright infringement, and defective products sold or advertised online by the Client.
The Client further agrees to indemnify the Service Provider from responsibility for problems/disruptions caused by third-party services that the Client may use, such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of digital marketing projects.
TRANSFER OF RIGHTS AND OBLIGATIONS
The Client shall not cede, assign, or transfer any of its rights or obligations in terms of this Terms and 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 Terms and 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 Terms and Conditions or any other terms and conditions or policies on the scale of attorney and client.
The Client acknowledges that the Service Provider is free to advertise, promote, market, work, demonstrate, offer to sell, sell and license products and services to any person or entity, client or third party through itself or with the assistance of any third party, including companies that are deemed as direct or indirect competitors of the Client.
The Client acknowledges that the Service Provider is free to enter into the same terms and conditions or similar terms and conditions with any person or entity for any client.
The Service Provider reserves the right, at their sole discretion, to modify or replace this Terms and Conditions or any other terms, policies, or procedures at any time.
The Service Provider will try to provide at least 30 days’ notice prior to any new terms taking effect.
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.
This Agreement is the entire understanding between the parties relating to the subject matter hereof and supersedes all prior or coexistent understandings, whether on the website, written or oral. The parties have executed this Agreement via electronic signature or acceptance of the terms and conditions on the paygate, with full knowledge of its content and significance and intending to be legally bound by the collective terms hereof effective from date of last signature.
If there is any question about this Terms and Conditions, including the Terms and Conditions, Specific Terms or any other terms and conditions, please contact the RAS Digital Marketing by sending an email to email@example.com or use the Contact us page.
Our address is https://rasdigitalmarketing.com 2 Ncondo Place, Ridgeside, Umhlanga Ridge, Durban, 4329, South Africa.