Date issued: 10 September 2021
This Service Terms and Conditions replaces all previous Service Terms and Conditions and is effective from the date of issue as reflected above. Please read this Service Terms and Conditions hereafter carefully before purchasing and using our Services.
This Service Terms and Conditions (collectively, the “Service Terms”) forms the Agreement between RAS Digital Marketing (Pty) Ltd (collectively “we”, “our”, “ours”) and the Client (collectively “you”, “your”, “yours”).
By purchasing and using our Service, you agree to be bound by these Service Terms. If you disagree with any part of this Service Terms, then you may not use our Services.
Subject to all the terms and conditions set forth herein, we shall provide the marketing & management services, strategies, campaigns and advertising services (collectively, the “Services”) outlined in the Order Form that is made subject to the Service Terms and executed by both Parties hereto.
In the event of any conflict between this Service Terms and the terms of the Order Form, the terms of the Order Form shall control.
2.1 AVAILABLE SERVICES
Descriptions of the available Services and corresponding additional terms (collectively “Additional Service Terms”) are provided in Section 22, Additional Service Terms hereto. The Additional Service Terms is part of this Service Terms and may be updated from time to time as additional services are introduced along with any corresponding additional terms for such service, which shall be effective upon execution of a new Order Form for the respective Service.
You acknowledge and agree that you shall only receive the Services outlined in the Order Form, as purchased by you.
You agree and acknowledge that the Services may be provided to you via our third-party vendors and/or partners. You acknowledge and agree that the Services may be dependent on timely receipt of certain information, content and materials from you.
We will determine the method, details, and means of performing the Services. You are responsible for implementing any recommendations, Facebook pixel installations, HTML code, server code, sitemaps, and/or content, as applicable, provided by us in connection with the Services. You shall appoint a competent Webmaster to implement such instructions where necessary.
Such recommendation by us and implementation by you may involve modifying certain social media pages, web pages, making configuration changes to the webserver, site navigation or content management system. You agree that we shall not be responsible or liable for any of the foregoing, or any impact caused by your actions.
In addition to implementing code recommendations, you will be responsible for uploading / implementing the appropriate Webmaster (“Validation Keys”) necessary to monitor the website(s) on the applicable search engines (i.e., Google, Bing, etc.).
You hereby authorise us to act on behalf of you in connection with the provision of the Services to you under this Agreement. Such authority includes, but is not limited to, ordering the Services from third parties.
For the avoidance of doubt, you grant, us all the rights necessary to facilitate the provision of the Services to you hereunder.
You agree to comply with all reasonable requests from us where necessary for the performance of the Services as outlined in this Service Terms.
3. THIRD-PARTY SERVICE
You acknowledge that we cannot accept any responsibility or liability for the performance, policies or actions of third party networks including, but not limited to, search engines, display networks, social media networks or directories.
You acknowledge that third party networks may drop listings, suspend accounts, impose additional requirements or change terms and conditions, or undertake other actions, which may impact the Services, at their discretion. You agree that we shall not be responsible or liable for any of the foregoing.
You acknowledge that we cannot guarantee specific delivery or positioning of any creative / advertising placements in connection with the Services.
We utilise your existing media platforms to provide the Services as outlined in the Order Form. In some circumstances, you will not have the required platforms readily available when this Agreement is concluded. In this event, we will set the required platform up for you as outlined in the Order Form.
We require access to, and you agree to provide such access or otherwise make available, any systems, hardware, services, hosting, social media managers, FTP software or similarly functioning software or content management systems, or other resources deemed necessary by us to fulfil its obligations under this Agreement.
6. SERVICE FEES
6.1 ACCOUNT MANAGEMENT FEES
We will charge the account management fee(s) as outlined in the Order Form to perform the Services selected by you as outlined in the Order Form.
The account management fees are charged monthly and paid in advance by you for the Services. The account management fees shall be paid on the date of acceptance or signature as outlined in the Order Form.
6.2 SETUP FEES
In addition to the account management fees, we will charge you a one-time setup fee to initiate the Services selected on the Order Form, which fees shall be invoiced on the date of acceptance or signature as outlined in the Order Form.
If you discontinue the service for one (1) month and longer, an additional setup fee will be applied.
6.3 ADVERTISING FEES
In addition to the account management fees and the setup fees, you will agree to a monthly advertising fee in the form of a budget (“Advertising Budget”) outlined in the Order Form, for advertising expenses on Google, Facebook, LinkedIn and/or any additional advertising platform.
We utilise, your existing social media platforms for creating awareness or advertising, your products or services. In this event, you shall provide the needed credit card facilities as required by the third party social media platform to pay for such third party service which is directly invoiced by the third party social media platform for your account, based on the Advertising Budget agreed in the Order Form. You acknowledge that we do not have access to your credit card facilities, or the actual marketing budget spend.
The Advertising Budget must remain fixed for the period agreed in the Order Form. Any modification to the Advertising Budget must be made in writing via email by you and we will acknowledge it in writing via email by one of our designated account managers. You acknowledge that any changes in the Advertising Budget will harm the performance of the Service provided and that we will not take any remedial steps concerning the underperforming Services, and no claims can be instituted against us for such underperformance.
Advertising Budget modifications must be submitted and acknowledged as per the previous sentence, at least three (3) business days before commencement of the applicable month.
Unless otherwise agreed in writing by the parties, the Advertising Budget outlined in the Order Form, as modified in writing via email as outlined above, will automatically be designated as the Advertising Budget during the Term.
You acknowledge that all account management fees, and setup fees are non-refundable.
7. PAYMENT TERMS
All payments for the Services will be done in advance based on an invoice presented by the merchant paygate or sent by email. The paygate will request you to read and accept the Terms & Conditions before the payment will be processed as per the Order Form based on the date of acceptance or signature as outlined in the Order Form.
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 you acknowledge that the price you see at that moment is the price you pay regardless of any special price presented before or after the time. No VAT is charged because we are in the process of registration.
You accept that we use a merchant account to receive payments and the payment gateway is through PayFast. PayFast accepts credit and debit cards or EFT.
If you fail to make the next payment by the date of acceptance or signature as stipulated by the Order Form, we have the right but is not obligated to terminate the Agreement with written notice. If you failed to pay for the Services within the next thirty (30) days, you shall pay a setup fee again to restart the Services.
We shall be entitled to charge for any additional modifications or customisation beyond the Order Form, that excludes the normal account management and setup fees incurred by us in the performance of this Agreement.
If you request any additional customisation or modifications that are additional to the Order Form, we will consider the changes and advise you accordingly, and if you insist to continue with the implementation of the customisation or change, we will provide a quotation for the work to be done, whereupon you shall approve the change, and do the payment before the customisation will commence.
You acknowledge that we will not be held responsible for underperforming Service, which we advised against.
9. TERM OF AGREEMENT
The Agreement shall remain in effect during the term outlined in the Order Form (“Term”). Unless terminated as provided for in Section 10.1, the Agreement will automatically renew for an additional term of equal length to the previous Term.
Either party may terminate this Agreement by providing the other party with written notice at least thirty (30) days before the end of the Term.
The Agreement may be terminated by a party if the other party materially breaches the Agreement and does not remedy such breach within thirty (30) days following written notice thereof from the non-breaching party.
In the event of a breach of the Agreement by you, the Services may be suspended by us until the breach of the Agreement is remedied. The Agreement or a particular Service may be terminated by us upon:
- termination or expiration of the relationship between us and the vendor/partner that enables the Services; or
- thirty (30) days advance written notice to you.
Upon termination of this Agreement, we may remove any tracking codes or pixels and the like installed by us in connection with the Services.
The provisions of the Agreement, which expressly or by implication are intended to survive termination or expiration, will survive and continue to bind the parties.
Once the Agreement is terminated, you are responsible to cancel our access to your social media platform, immediately after the Agreement is terminated.
10. YOUR CONTENT AND USAGE
10.1 YOUR RIGHTS
The rights and licenses granted hereunder to you are non-transferrable. You will not permit any third party to use or disclose the Services unless expressly permitted under this Agreement.
Without limitation of the above, you will not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services.
You do not have the right to interfere with any marketing campaigns managed by us on your social media platforms. We will be requested by you to consider a modification or customisation as outlined in Section 9 of this Service Terms.
We and our partners and/or vendors exclusively retain all right, title and interest in and to the Services, in all forms, and all copies, modifications, edits, improvements, additions, and derivative works prepared from or relating to the same, including all worldwide rights to patents, copyrights, trademarks, trade secrets or other intellectual property rights in or relating to the same.
The Services shall not constitute (“work for hire”). You are not acquiring any right, title or interest of any nature whatsoever in any Services except the right to use the Services as contemplated in this Agreement. We will have exclusive rights in making any derivative works from the Services or its related work.
10.2 YOUR CONTENT
You own or is authorised to use, any keywords, combination of keywords, social media ad sets, ads and your advertising materials, artwork, links, domain names (URLs), websites, data and content provided by you to us, including your trademarks, service marks, names and logos and the content of any creative material created by us that you approve (collectively, “Content”).
You hereby grant to us and our third parties a perpetual, non-exclusive, royalty-free, irrevocable right and license:
- to use, copy, perform, display, distribute and modify the Content in any manner or medium, now known or hereafter developed, for us to perform the Services, and;
- to prepare statistical analyses which we and our third parties may use to improve their services and may combine with other similar data from other customers and disseminate and otherwise use it in a combined form.
10.3 YOUR CONTENT USAGE
You grant us the right to:
- use any Content provided by you in connection with the Services and/or,
- cross-link any such Content with other advertising developed by us.
You grant us the right to attach, link, list, reference or otherwise identify you as our client in our marketing and advertising campaigns.
In connection with the delivery of certain Services, you agree and acknowledge that our identification may be seen, and remain within the code or on your website, identifying us as the author and/or service provider.
You also agree to put our copyright notices on any reports, pages generated in connection with the Services and the relevant content therein.
11. CONFIDENTIAL INFORMATION
Confidentiality (“Confidential Information”) means any confidential and/or proprietary information provided by us to you under this Agreement, including without limitation, any information relating to our products, services, costs, prices, vendors, partners, finances, marketing plans, strategies, business opportunities, personnel, research, development or know-how that is:
- designated by us as confidential in writing on the materials at the time of disclosure,
- if disclosed orally, designated as confidential at the time of disclosure, and reduced to writing and designated as confidential in writing within thirty (30) days after oral disclosure, or,
- given the nature of the information and the circumstances of disclosure, a reasonable person would deem it to be confidential.
Confidential Information includes, but is not limited to, the Services and all associated intellectual property and know-how. You will not use any portion of the Confidential Information provided by us hereunder for any purpose other than the purposes contemplated by the Agreement.
You shall protect all Confidential Information received from us with the same degree of care with which you protect your own Confidential Information, which in no event shall be less than reasonable care.
You shall promptly notify us of any actual or suspected misuse or unauthorised disclosure of our Confidential Information.
You shall not disclose our Confidential Information to any person except as authorised in writing by us.
Upon termination of this Agreement and/or upon request by us, you shall promptly return to us all of our Confidential Information in your possession (including all copies and extracts thereof). Furthermore, you will destroy all electronic copies in your possession and send proof that it was destroyed to us, never to be used or to be distributed by you again.
In connection with a breach of the confidentiality provisions herein, we shall be entitled to seek relief, in any court having proper jurisdiction, in addition to any other remedy that we may have.
12. YOUR REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
- the Content will not infringe upon or violate any intellectual property or other rights of any third party, and that you have all necessary licenses and clearances to use, and to allow us to use, the Content,
- you have all rights, title, interest, consents, authorisations, permits, licenses, registrations, notices, and rights to perform its obligation under this Agreement, including, but not limited to, the provision of the Content hereunder in connection with the Services and provision of the Services to your customers and website users,
- you shall comply with all applicable laws, rules, regulations (including, but not limited to, laws regarding the collection, use, and disclosure of information from visitors to your websites) and industry best practices in connection with your use of the Services,
- you have the full power and authority to enter into this Agreement, including the execution and performance in terms of this Agreement and will not breach or cause a default under any other agreement, contract, or joint venture agreement to which it is a party.
13. LIMITED WARRANTY
If the Services are not provided by us as outlined in the Services herein or the Order Form, we shall re-perform the Services without unreasonable delay, at our own expense and without charge to you to bring the Services into conformance with the description of Services herein or the Order Form.
This warranty shall be the exclusive warranty available to you and you waive any other warranty, express or implied.
You acknowledge that we do not warrant that the Services will work for all audiences and on all social media platforms or in every circumstance.
You acknowledge and agree that we will not be responsible for the results, productivity or any other measurable metric of the Services.
Except as expressly provided herein in this section, we disclaim all representations and warranties of any kind or nature, express or implied (either in fact or by operation of law), concerning any service or item provided hereunder, including, but not limited to, any warranty of merchantability, title, design, infringement, or fitness for a particular purpose and any warranty arising from conduct, course of dealing, custom, or usage in trade.
You will defend, indemnify and hold harmless, us, our vendors, partners, parents, subsidiaries, affiliates and their officers, directors, employees and agents and their successors and assigns (collectively, “Indemnitees”) against all claims, demands, losses, costs or liability (including without limitation reimbursement for reasonable attorneys’ fees and disbursements) which Indemnitees, may incur as a result of, arising from or relating to:
- any breach of the Agreement by you or any of your officers, directors, employees and agents,
- use of the Services and/or Content,
- infringement by the Content of a patent, copyright, trademark right or other intellectual property rights of a third party or misappropriation of any third-party trade secret,
- any violation of any law by you in connection with the transactions contemplated by the Agreement,
- your products and or services, including, but not limited to, defective products and or services sold via the Services,
- problems/disruptions with the Services caused by third party services that you may use, such as merchant accounts, shopping carts, shipping, hosting services, real-time credit card processing, media platforms and networks and other services that relate to or impact your use of the Services,
- use of digital tracking measures in connection with any applicable Services, including but not limited to, conversion tracking, call tracking, reverse proxies and analytic applications,
- the web pages, landing pages, social media pages linked to from your website or advertisements and the content therein,
- the products and or services promoted or offered in, or in the web pages, landing pages, social media pages linked to, from your website or advertisements; and
- the collection and use of your personally identifiable information collected from users of your website or advertisements.
15. LIMITATIONS OF LIABILITY
In no event shall we be liable for any indirect, consequential, exemplary, incidental, special or punitive damages, including lost profits, lost savings, lost or destroyed data, lost revenues, lost opportunity costs, diminished brand or any other economic loss, of any type or nature, or for events or circumstances beyond our control, even if we have been advised of the possibility of such damages.
Neither occasional short term interruptions of service nor interruptions of service resulting from events or circumstances beyond our reasonable control shall be cause for any liability or claim against us hereunder, nor shall any such occasion render us in default under this agreement.
Our cumulative, collective liability in connection with or arising in any way or any degree from this Agreement, or otherwise from the acts or omissions of us under any and all legal theories will not exceed the lesser of (i) R 1,000 or (ii) the total amount paid by you to us in the twelve (12) months before such claim arose.
You hereby acknowledge and agree that the remedies set forth above are reasonable and will not fail in their essential purpose.
16. FORCE MAJEURE
No failure, delay, or default in the performance of any obligation under this Agreement (other than payment obligations) will constitute a breach of this Agreement if it is caused by unrest, strike, fire, shortage of materials, the act of a public authority, civil disorder, riot, work stoppage, labour strife, cessation of third party supplies or services, vandalism, war, severe weather, natural disaster or other act of God; terrorism; or other cause that is beyond our reasonable control or otherwise chargeable, for so long as such cause continues and for a reasonable period of time thereafter.
All notices, authorisations and consents concerning this Agreement shall be deemed given:
- on the day personally delivered,
- on the fifth (5th) business day after deposited in South Africa mail, postage prepaid, certified, or registered, return receipt requested, and
- on the business day after sent by nationally recognised overnight courier, charges prepaid, return receipt requested,
- All notices, authorisations and consents are to be sent to the address under the Contact Us section below and for the attention of the Managing Director.
18. TRANSFER OF RIGHTS AND OBLIGATIONS
This Agreement shall be binding upon both parties and their respective successors and assigns.
We may assign this Agreement as and when required to fulfil the Services as per the Order Form and the Agreement.
You shall not cede, assign, or transfer any of its rights or obligations in terms of this Service Terms nor any terms and conditions without our prior consent in writing.
19. DISPUTE RESOLUTION
Should any dispute, disagreement or claim arise between the parties concerning this Service Terms, 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.
We shall be entitled to the award of legal costs in any litigation arising in terms of this Service Terms or any other terms and conditions or policies on the scale of attorney and client.
We reserve the right, at our sole discretion, to modify or replace this Service Terms or any other terms, policies, or procedures at any time.
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.
21. ENTIRE AGREEMENT
This Agreement is the entire understanding between the parties relating to this Service Terms and supersedes all prior or coexistent understandings, whether on the website, written or oral.
No change, modification or amendment to this Agreement will be effective or binding unless signed by you and our duly authorised officer.
The parties have executed this Agreement, with full knowledge of its content and significance and intending to be legally bound by the collective terms hereof effective from the date of acceptance or signature.
The waiver by either party of any breach or failure to enforce any of the Service Terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
Except as explicitly set forth herein, none of the provisions of this Agreement will be for the benefit of or enforceable by any third party.
If any term of this Agreement is held invalid, illegal or unenforceable for any reason, the remainder of the provision shall continue in full force and effect.
22. ADDITIONAL SERVICE TERMS
We provide the following services either on an individual or combined services as outlined in this Service and the Order Form following this Service Terms:
- Digital Advertising Management Services
- Digital Retargeting Management Services
- Email Marketing Management Services
- Social Media Management Services
You acknowledge and agree that the above services are provided following the additional service terms, which must be read with the foregoing Service Terms.
You hereby appoint us as your provider, where we agree to accept such appointment to provide this Service as outlined in this Service Terms and the Order Form.
The agreement between the parties in respect of the required Service listed shall commence on the date of acceptance or signature as outlined in the Order Form.
We shall render the Service to you for a Term of thirty (30) days calculated from the date of acceptance or signature as outlined in the Order Form unless agreed and stated otherwise herein.
The Term of this Agreement shall be extended automatically for the next Term unless you notify us in writing at least thirty (30) days before the expiry of the Term that you will no longer be making use of the Services beyond the expiry of the Term.
22.1.3 YOUR OBLIGATIONS
You must provide us with:
- the full details of all your social media platforms that you presently utilising or which you may have utilised in the past. In this regard, you must provide us with your login details and access passwords as well as any URLs required to gain access to such platforms and you shall also be obliged to make us a manager of any of such platforms, should this be necessary for us to be able to render the Services; or
- you must create social media platform accounts if not in existence yet and set it up as per our guidelines to provide the Services as outlined in the Order Form. This includes making us a manager in the social media platform and provides us with access to the accounts as prescribed above,
- your Corporate Identity as well as any identities applicable to any of your brands together with any specific documents that will assist us in gaining an insight into and an understanding of your corporate identities, which shall include but not be limited to, a colour breakdown for each identity, font particulars and any or all your slogans or logos in high resolution for each identity,
- information or details with regards to what your business stands for, the nature and extent of the services or products that you provide, what is your brand essence and what is your target market. Such information or details should be submitted to us, that will assist us in the strategy development and content curation for this Service that we will be recommending that you implement in terms hereof,
- your stock photographs/images of the brands you own over which you have acquired the right to use. Such photographs/images shall be utilised by us to populate the relevant social media platforms,
- with full information of any events that you have already been organised or which you are planning so that such information can be integrated into this Service as and when required,
- review and approve and sign off on all finalised social media strategies, content, adverts, and competitions before we implement the same.
22.1.4 OUR OBLIGATIONS
When providing the Service to you in terms of this Service Terms, we shall attend to:
- Account: Campaigns are managed from your social media platform accounts, and we will request access to your social media platform account to assess your current ad performance and to set it up, and to manage the advertising campaign outlined in the Order Form,
- Strategy Development: This is the process of developing strategies for the advertising campaigns for the relevant social media platforms that fit in with your corporate identity, and/or its various brands,
- Content Curation: This is the process of developing content for the advertising campaigns for the relevant social media platform that flows from the social media strategies that have been developed, and includes the editing, modification of stock photographs/images/videos to fit a third-party social media platform, to fit in with the Client’s corporate identity, and/or its various brands,
- Content Implementation: This is the process of rolling out the approved and signed off the content on the relevant social media platform/s, that assist in the awareness creation or to attract and convert prospects into leads who have indicated an interest in your products or services,
- Media Management: This is the monitoring of the relevant social media platforms for optimisation purposes as and when required,
- Media Reporting: Provide a standard report, detailing the results by Term. Detailed reporting with insights that are over and above the standard reporting is also available at an extra fee,
- Crisis Management: When there are issues with the campaigns or the social media platform/s that need to be attended to, we will contact the required appointed authorised person and notify them of the problem,
22.1.5 CHALLENGES THAT MAY IMPACT THE SERVICES
The Parties hereby record that we have made you aware that the following issues may negatively impact the Services being provided by us inter alia:
- Client Accounts Availability – If your social media platform accounts are not being made available on time or do not remain available, will have a direct impact on the Service provided,
- Client Content: The late or insufficient provision of your Content could delay the Service implementation,
- Internet Failure: If there is major internet downtime throughout the country or in any other manner whatsoever for whatever reasons, then we may not or will not have access to the social media platforms and/or profiles,
- Lead Magnet Failure: You are unable to provide a lead magnet that is free of charge to be utilised in the advertisement, or the lead magnet is unable to create the necessary interest from prospects to convert into leads,
- Call to Action: If during any campaign there is an error with a domain or URL you supplied to us and we are not informed thereof, then users will be directed to a faulty URL,
- Advert Price Increase: When there is a higher demand for particular demographics the price of the CPC may increase, lowering the overall results for that budget.
- Social Media Platforms: If you are new to this Service or new to the social media platforms, you can only expect a positive engagement after three (3) months this also depending on the advertising budget or the desirability of products or services on offer or competition,
- Customer Database: You confirms that any customer database we will use has been legitimately obtained and, where applicable, all email addresses have opted in for communications as per the POPI Act,
- permits the operation of a retargeting consumer marketing program, including, but not limited to, the provision of anonymous consumer information to a third-party provider of such a program, and,
- provides a link to the consumer opt-out page allowing the consumer to opt-out of such retargeting programs, and,
- provides clear and conspicuous disclosure regarding such retargeting practices,
- you understand that the technology required to operate the retargeting program may utilise a pixel (“Pixel”) placed on your website to set a cookie on the browser of visitors of your website. You will place the Pixel on your website following our guidelines and you agree that the pixel shall not be removed or modify.
23. CONTACT US
If there is any question about this Service Terms, please contact us 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.