– THE BRAND CARTEL –
These terms and conditions (“Terms”) govern all Projects, Processes and Deliverables delivered or executed by The Brand Cartel Digital Consulting (Pty) Ltd (“The Brand Cartel”). Similarly, the access and use of The Brand Cartel’s website will be governed by these Terms as well.
These Terms shall take precedence over any other terms and conditions, which may form part of your documentation unless agreed to in writing and signed by both Parties.
Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:
- Client” means the party engaging with The Brand Cartel on any matter, including, for purposes of receiving Services from The Brand Cartel;
- “Data” means any data, including personal information as defined in the Protection of Personal Information, Act 4 of 2013 (“POPI”), the Electronic Communications, Act 25 of 2002 (“ECTA”) and any other applicable legislation in the jurisdiction where the Services are to be provided, supplied, stored, collected, collated, accessed, retained or processed by The Brand Cartel on behalf of the Client, irrespective of the media or form;
- “Data Protection Legislation” means the laws relating to data protection in South Africa, including, but not limited to, the Electronic Communication and Transactions Act 25 of 2002 (ECTA), the Consumer Protection Act (CPA) 68 of 2008 and the Protection of Personal Information Act (POPI);
- “Deliverables” means any deliverable recorded in the SOW provided by The Brand Cartel to the Client including any designs, software, programs, creative work, copy, documents, data or other materials developed by The Brand Cartel expressly, specifically and exclusively at the request and instance of for the Client in terms of these Terms of Service;
- “Estimate” means a quotation, proposal or cost-estimate as more fully described below issued by The Brand Cartel and accepted and signed by the Client in respect of Services to be provided and/or Deliverables to be delivered in terms of the SOW. All Estimates are valid for 72 (seventy-two) hours only;
- “IP Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, trade, business and domain names, rights in trade dress or get-up, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
- “Parties” means you and The Brand Cartel and “Party” shall mean either one of them;
- “Personal Data” means all personal data for which you are the responsible party (where, for the purposes of this definition, “Personal Data” and “responsible party” have the meanings given to them by POPI) to which The Brand Cartel have been given access or which is generated by or on your behalf, including, inter alia-
- Race, sex, gender, sexual orientation, pregnancy, marital status, nationality, ethnic or social origin, colour, age, physical or mental health, well-being, disability, religion, conscience, belief, cultural affiliation, language and birth;
- Education, medical, financial, criminal or employment history;
- Names, identity number and/or any other personal identifier, including any number(s), which may uniquely identify a data subject, account or client number, password, pin code, customer or data subject code or number, numeric, alpha, or alphanumeric or configuration of any nature, symbol, e-mail address, domain name or IP address, physical address, cellular phone number, telephone number or other assignment;
- Blood type, fingerprint or any other biometric information;
- Personal opinions, views or preferences;
- Correspondence that is implicitly or expressly of a personal, private or confidential nature (or further correspondence that would reveal the contents of the original correspondence); and
- Corporate structure, composition and business operations (in circumstances where the data subject is a juristic person) irrespective of whether such information is in the public domain or not;
- “Processing” means the collection, receipt, recording, organisation, collation, storage, updating or modification, testing of, retrieval, alteration, consultation or use;
- dissemination by means of transmission, distribution or making available in any other form by electronic communications or other means; or
- merging, linking, blocking, degradation, erasure or destruction; and “Process” has a corresponding meaning.
- “Project Commencement Date” means the mutually agreed date on which the Services will commence;
- “Services” means the performance of the services, functions, responsibilities, development and delivery of Deliverables by The Brand Cartel for the Client as set out in the SOW and any other items or services provided by The Brand Cartel to the Client as they may evolve during the continued duration of the provision of the Services and any other services provided by The Brand Cartel, including but not limited to, digital and consulting services, hosting services, web development, graphic design, copywriting, website maintenance, email marketing, social media, new product development, business analysis and digital strategy;
- “The Brand Cartel” means The Brand Cartel (Pty) Ltd with registration number: 2013/143694/07 with registered address at Unit F12, Pinewood Square, Pinewood Office Park, 33 Riley Road, Woodmead, Johannesburg, 2191, South Africa and/or its Affiliates.
- “The Brand Cartel Proprietary Material” means any product, software, document, business process, text, artwork, trade mark, branding, logo, slogan, design, still, graphic, video, photograph, sound recording, script, music, picture, document and/or other data or material of any nature whatsoever, and all right, title and interest therein (including but not limited to, the underlying copyright in any source code or business methodology associated therewith and all other IP Rights therein) which is used, owned, developed and/or created by or for, or licensed to, The Brand Cartel at any time, (including without limitation any of the aforementioned data or material which is created by The Brand Cartel for its own use and/or which existed prior to the execution of any SOW but, for the avoidance of doubt, excluding the Deliverables.
APPOINTMENT AND DURATION:
You shall be bound by these Terms the moment you engage with The Brand Cartel or access The Brand Cartel’s website and will terminate once The Brand Cartel has delivered the Services to you, or you have paid for such Services in full or the Terms are terminated in line with Clause 9 below.
- The Brand Cartel shall deliver the Services to the Client as agreed by both Parties in the Estimate and/or SOW.
- The Brand Cartel shall issue the Client with a written Estimate specifying:
- the Services and/or Deliverables to be provided by The Brand Cartel and any Service Levels which may apply;
- the fees to be charged by The Brand Cartel to the Client for the Services and/or Deliverables to be provided, including the method of and timelines for payment; and
- to the extent relevant, dates by which or upon which such Services and/or Deliverables are to commence and be completed, including detailed project plans.
- The Client shall be entitled to propose changes to the Estimate, prior to the expiry of 72 (seventy-two) hours, which changes shall be subject to agreement by the Parties. Where The Brand Cartel agrees to such changes, it shall issue a revised Estimate incorporating such changes for consideration by the Client.
- Upon acceptance and signature of the Estimate by the Client, the Estimate shall be binding on the Parties. These Terms shall apply to all Estimates.
- No site or other digital property shall go live without a duly accepted and signed Estimate.
- The Brand Cartel shall issue an invoice on signature by the Client of the Estimate and the Client shall pay the total fee specified upon presentation of the invoice.
- Should any fees not be paid upon presentation of the invoice, The Brand Cartel will not release or share any Deliverables. The Brand Cartel retains the right to, including but not limited to, take any web-site, social media platform, digital advertising platform or any other digital asset offline and suspend the delivery of the Services for the period the fees remain unpaid;
- Interest on any overdue payments shall be charged at a rate of 2% per month.
- The Client agrees to pay all the fees The Brand Cartel may incur when recovering any unpaid fees from the Client.
- The Client shall compensate The Brand Cartel for all disbursements reasonably incurred and properly vouched by The Brand Cartel in the performance of its duties under these Terms, provided that such disbursements have been pre-approved by the Client in writing. The Brand Cartel shall issue invoices for any such disbursements in arrears in the month in which the disbursement was incurred and Client shall make payment thereof upon presentation of the invoice.
- All amounts payable by the Client to The Brand Cartel shall be paid into The Brand Cartel’s banking account or such other account as The Brand Cartel may notify the Client in writing from time to time.
- The Client may not withhold any amount disputed by it. In the event of any dispute, such dispute shall be referred to each Party’s senior financial representative to negotiate in good faith to resolve any dispute within 5 (five) days of such dispute arising. Where the Parties cannot not reach resolution with regards to the disputed amount(s) or Services within 10 (ten) days, such dispute shall be referred for resolution in accordance with the dispute resolution provisions under the Terms.
- Should either Party breach any clause in these Terms the affected Party shall be able to give the Party who is in breach notice in writing to rectify the breach within 14 (fourteen) days from date of the notice.
- Should The Brand Cartel fail to rectify the breach within 14 (fourteen) days you will be able to claim specific performance from The Brand Cartel.
- Should you fail to rectify the breach within 14 (fourteen) days, The Brand Cartel will be able to cancel these Terms or claim specific performance from the Client.
- Both Parties shall be allowed to claim damages in addition to claiming specific performance from the other Party.
- The Brand Cartel will take out the necessary public liability insurance to cover production of the Project, where required. These costs will be reflected in the CE and are for your account.
- The Brand Cartel will not insure you or any third-party in any manner over and above the public liability insurance referred to in clause 6.1 above, you are required to ensure that you have adequate insurance to cover any liability that may arise from the Project.
Both Parties agree that The Brand Cartel will, at all times, treat all information in connection with and / or relating to the other Party, its business and all matter incidental thereto (the “Confidential Information”) as strictly confidential and shall not, without written consent (which consent will not be unreasonably withheld) from the other Party disclose such Confidential Information to any other person and / or make use of such Confidential Information for any purpose other than in connection with the rendering of the Services.
INTELLECTUAL PROPERTY RIGHTS:
- Subject to the remaining provisions of this clause 8, all The Brand Cartel Proprietary Material owned by either Party (whether before or after the Effective Date) shall remain the sole and exclusive property of that Party.
- All content on The Brand Cartel’s website (unless explicitly stated), any content created for you, work delivered to you, including but not limited to, raw/captured footage, ideas and execution, strategy, graphics, images, clips, digital downloads, and software, is our property or licensed to us whether registered or not. The Brand Cartel specifically reserves all rights relating to such content. Only final outputs/deliverables delivered by The Brand Cartel and paid for in full by you shall become your property.
- “The Brand Cartel Brand Management” and other marks indicated on The Brand Cartel’s website are The Brand Cartel’s trademarks. These and other graphics, logos, page headers, button icons, scripts, product and service names are our copyrights and/or trademarks belonging to us, whether registered or not (this means any recognisable sign, design, or expression which distinguishes any products or any characteristic of appearance of products or services of The Brand Cartel from those of others, belongs to us).
- The Brand Cartel’s trademarks and/or copyrights may not be used with any other product or service without The Brand Cartel’s prior written consent.
- The Brand Cartel’s trademarks and/or copyrights may not be used in any way that may cause confusion, or in a way that prejudices or discredits The Brand Cartel.
- All other trademarks and/or copyrights not owned by The Brand Cartel that appear on The Brand Cartel’s website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Brand Cartel.
- All content on the Website (unless explicitly stated), and any work submitted to clients or potential clients, including but not limited to, text, graphics, logos, button icons, images, clips, digital downloads, data compilations, and software, is the property of The Brand Cartel or licensed to The Brand Cartel and as such, is protected from infringement by domestic and international laws, legislation and treaties. The Brand Cartel expressly reserves all rights pertaining to such content.
- The Brand Cartel and its affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, an infringement of any intellectual property right, please notify us by e-mail or post at the address below.
- All content, trademarks and data on this Website and any work submitted to clients or potential clients, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or are licensed to The Brand Cartel, and as such are protected from infringement by domestic and international laws, legislation and treaties.
- All other trademarks not owned by The Brand Cartel that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by The Brand Cartel.
- Both Parties shall be shall be entitled to cancel these Terms at any time prior to Services being Delivered, free of penalty, provided such notice of cancellation is received by no later than 60 (sixty) days prior to Services being Delivered,
- The Brand Cartel reserves the right to charge a cancellation fee to cover any costs which The Brand Cartel may incur due to you canceling these Terms should the Client cancel at any time after the period set out in clause 9.1 above.
- Should the Client cancel these Terms after 50% of the Services have been Delivered to the Client, the Client will be liable for 100% of the fees for the Services as set out in the Estimate/SOW.
- Any losses suffered as a result of the aforesaid cancellation shall be charged to the the Client by way of direct invoice or set off, at The Brand Cartel’s election.
- The Brand Cartel disclaims all warranties of any kind, whether express or implied in respect of the Services and you use such Services at your own risk.
- You understand and agree that The Brand Cartel will not be able to guarantee a specific set of results and there is accordingly no warranty as to fitness for purpose.
- The Brand Cartel will not be liable for any loss or damages arising, whatever the cause, in accordance with these Terms.
- Should The Brand Cartel be found to be liable to you for a particular act or omission then The Brand Cartel’s liability will be limited to fees already paid by you on the Project forming the subject of the dispute.
- You hereby indemnify The Brand Cartel from any loss, damage (either general, special or consequential), liability, claim, expense, costs or demand which may arise due to your unlawful conduct, willful misconduct and / or gross negligence.
- You indemnify and will keep The Brand Cartel indemnified against any claim for infringement of intellectual property rights regarding any information given by you to The Brand Cartel and against all costs, expenses and damages The Brand Cartel may incur or become liable for because of such infringement.
- The Brand Cartel will inform you, in writing, as soon as The Brand Cartel have been made aware of any claim being made or action threatened or brought against The Brand Cartel and will allow you, at your own expense, to continue with any litigation or negotiations that may follow for a settlement of the claim.
PROTECTION OF PERSONAL INFORMATION (“POPI”):
- The Brand Cartel will only Process or disclose Personal Data in accordance with applicable laws, in terms of these Terms and in accordance with any written instructions, requirements or specific directions from you.
- The Brand Cartel will ensure that all staff members of The Brand Cartel and any other persons that has access to your Personal Data are bound by the appropriate legally binding obligations in relation to your Personal Data.
- The Brand Cartel will take appropriate, reasonable and technical measures to ensure that the integrity of your Personal Data in possession or under control of The Brand Cartel is secure and your Personal Data in possession or under control of The Brand Cartel remains available to you as and when you need it.
NOTIFICATION OF PERSONAL DATA SECURITY BREACH:
- The Brand Cartel will notify you immediately when upon becoming aware that the Personal Data of a data subject has been accessed or acquired by an unauthorised person and take all appropriate steps to limit the compromise of Personal Data and to restore the integrity of the affected information systems as quickly as possible, The Brand Cartel will assist you to report all relevant facts relating to the compromise and provide you with details of the Personal Data affected by the compromise.
- If The Brand Cartel or any third-party to which the Personal Data has been disclosed pursuant to these Terms, is required by law, regulation or court order, to disclose or process any Personal Data, The Brand Cartel will advise you thereof prior to disclosure or Processing.
- The Brand Cartel will not transfer Personal Data provided to you outside of South Africa unless you authorise such transfer in writing and The Brand Cartel will comply with your express instructions for cross-border transfers of any Personal Data.
- On condition that undertakings provided by The Brand Cartel and if content was approved or assumed to have been approved by you and was actually implemented, presented, published and/or communicated by us in such approved format, The Brand Cartel will not be liable for any loss or damage of whatsoever nature and howsoever arising, including but not limited to, loss of profit and direct, indirect, incidental, special or consequential loss or damage, whether arising under contract, delict or otherwise, which may be suffered or incurred by you or any third-party as a result of the provision of the Services in terms of these Terms.
- Both Parties undertake to use The Brand Cartel’s reasonable endeavours to procure that any of the other person’s data operators (as defined in POPI), agents and contractors comply with the Data Protection Legislation and all other applicable data protection legislation and regulations about the performance of the other person’s obligations and exercise of their rights under these Terms.
- Both Parties undertake-
- to treat the Personal Data as confidential information;
- not to use or knowingly permit any third-party to use, or have access to, the Personal Data for any purpose other than as is expressly permitted by these Terms;
- that The Brand Cartel will not use Personal Data held by The Brand Cartel pursuant to these Terms for any purpose that is inconsistent with those purposes notified to the relevant data subject (as defined by the Data Protection Legislation) on or before the time of collection of that Personal Data.
RETENTION AND DESTRUCTION:
- The Brand Cartel will store all Personal Data which it processes for the minimum time periods stipulated by POPI in writing and shall be required to destroy all Personal Data relating to the data subjects in compliance with the destruction time periods stipulated by POPI.
- If either Party is prevented or restricted from carrying out all or any of their obligations under these Terms because of a strike, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, shortage or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labours government interference (“the event”), the Party who is affected by this event will be relieved of their obligations under these Terms during the time the event carries on and shall not be liable for any delay or failure in the performance of any obligations under these Terms or loss or damage either general, special or consequential which the other Party may suffer due to the event.
- Once the event has ended the Party who is affected by the event must give notice to the other Party that such event has ended. Should the event continue for a period of more than 90 (ninety) days, the other Party will be allowed to immediately cancel these Terms.
- The Brand Cartel’s Website is the registered property of The Brand Cartel.
- The Brand Cartel expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in the Website without prior notice.
- Nothing on the Website shall be construed as an offer by The Brand Cartel to you, the user, but merely an invitation to do business.
- You may send content and other communications to and/or via this Website provided that the content is not illegal, obscene, objectionable, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a communication. The Brand Cartel reserves the right to remove or edit such content in its sole discretion.
- You hereby represent and warrant that you own or otherwise control all the rights to the content that you post on this Website; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you indemnify The Brand Cartel or its affiliates from all and any claims resulting from content you supply to The Brand Cartel. The Brand Cartel shall not be held responsible or liable for any content posted on The Brand Cartel Websites.
LICENSES AND WEB SITE ACCESS
- The Brand Cartel hereby grants you a limited license to access and make personal use of the Website provided that in making use of the Website you do not download any content, other than for page caching purposes, except where the facility to download is expressly provided or express written consent to do so is otherwise given by The Brand Cartel. You are expressly prohibited from modifying any portion of this Website, whether in part or whole, except with the express written consent of The Brand Cartel.
- This license does not include any right of resale or commercial use of this Website or its contents. For the purposes of this clause 17, any collection and/or use of any listings and/or descriptions; any derivative use of this Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools for any commercial purpose is expressly prohibited unless stated otherwise.
- It is expressly prohibited to frame or utilize framing techniques to enclose and/or mask any trademark, logo, or other proprietary information (including images, text, page layout, or form) of The Brand Cartel and/or our affiliates without its express written consent.
- It is expressly prohibited to use any meta tags or any other “hidden text” utilizing The Brand Cartel’s name or trademarks without the express written consent of The Brand Cartel.
- Any unauthorized use of this Website, its content or applications terminates the permission or license granted by The Brand Cartel. You are granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page of The Brand Cartel provided the link does not portray The Brand Cartel, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner.
- You may not use any The Brand Cartel logo or other proprietary graphic, trademark, or material as part of the link without express written permission from The Brand Cartel.
DISCLOSURES REQUIRED BY SECTION 43 OF THE SOUTH AFRICAN ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT (ECTA):
- The full name and legal status of the web site owner is: The Brand Cartel DIGITAL CONSULTING (PTY) LTD (Registration Number 2013/143694/07).
- The full address of the web site owner is: http://www.The Brand Cartel.co.za/
- Members: Prudence The Brand Cartel.
- Physical address for receipt of legal service: Unit F12, Pinewood Square, Pinewood Office Park, 33 Riley Road, Woodmead, Johannesburg, 2191.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY:
Subject to the provisions of sections 43(5) and 43(6) of the ECTA, The Brand Cartel shall not be liable for any damage, loss or liability of whatsoever nature arising from the use or inability to use this web site or the services or content provided from and through this Website. Furthermore, The Brand Cartel makes no representations or warranties, implied or otherwise, that, amongst others, the content and technology available from this Website are free from errors or omissions or that the service will be 100% uninterrupted and error free.
The Client will not be allowed to cede, delegate, assign or otherwise transfer all or any of its rights under these Terms unless written permission from The Brand Cartel has been given and such permission shall not be withheld unreasonably.
- Should a dispute arise that cannot be resolved amongst the Parties, The Brand Cartel will allow the senior executives of both Parties to attempt to resolve the dispute within 14 (fourteen) days of being asked to do so.
- Failing resolution of the dispute within 14 (fourteen) days, the Parties agree to submit to arbitration proceedings in respect of such dispute in accordance with the Rules of the Arbitration Foundation of Southern Africa.
- Neither Party will be bound by any direct or indirect term, representation or promise that is not recorded in these Terms.
- Any permission or approval that might be given by one Party (the “grantor”) to the other Party (the grantee) will not be seen as a waiver or abandonment of any of the rights of the grantor, who shall not thereby be excluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
- Nothing in these Terms will form a partnership, joint venture, agency or employment between the Parties, and neither Party will be allowed to bind, or contract in the name of the other or to create a liability against the other in any way for any purpose.
ACCEPTANCE OF THESE TERMS BY YOU SHALL BE DEEMED TO HAVE TAKEN PLACE ONCE YOU ACCEPT THE ESTIMATE OR BY THE USE OF The Brand Cartel’S WEBSITE. EVERY INSTANCE OF THE SERVICES AND USE OF THE WEBSITE SHALL BE SUBJECT TO THE ABOVE TERMS.