TERMS & CONDITIONS
Upon agreeing any cost estimate (via email, WhatsApp or written approval) provided by a Thumbnail Visuals representative, the client will be liable for full payment of said cost estimate, unless otherwise agreed with said representative and client. If work has commenced, the full invoice shall be payable where resources have been assigned to work on the project. If the project is cancelled by the client, the client will be responsible for covering the resource/design costs that occurred based on an hourly rate. The amount due shall be the lesser between the hourly rate’s total and the full invoice amount.
In the case of a Social Media, PR campaign, or general advertising campaign an invoice for the full retainer amount will be sent to you before the project or job in question commences, or at the beginning of each month, payable before any work commences for the month going forward.
For example, your invoice will be generated and sent on the 28th of January, in order for Thumbnail Visuals to commence work on your brand or project on 1 February.
50% payment is due in order to secure Thumbnail Visuals time before any work can commence. The balance will be due prior to the completion and handover of the job.
No refund will be processed if all jobs are done completely, subject to rejection of solutions proposed by Thumbnail Visuals.
Should it occur that the brand or client’s company does not make good on the full payment for a particular month’s retainer or project, a 5% admin fee will be liable each month after the payment date.
Should you wish to cancel your retainer contract with Thumbnail Visuals , this should be done in writing a full month before the date of cancellation. This month will be charged for as per the original agreement, and the client liable for payment thereof with no dispute.
The ideas, concepts, designs, relationships, passwords, login details and any other intellectual property which Thumbnail Visuals accrues or obtains as a result of working with each brand/client will remain the property of Thumbnail Visuals until such time as the client pays the full amount owed.
Written approval or a signature on a document from you, as the client, or payment of an invoice issued as a result of a quote or estimate, indicates authorisation from your company to proceed with the project/s described within this document. Your signature states that you are a legally authorised representative and are committing to pay for all fees incurred in the production of this project and that you agree to the Terms laid out.
PARTIES
Thumbnail Visuals, a PTY (Ltd) in South Africa (2018/546966/07) means the person or entity described as the Client on the Cost Estimate provided per job.
INTRODUCTION AND FUTURE MANDATES
The Client hereby engages Thumbnail Visuals, which engagement Thumbnail Visuals hereby accepts, to provide Services and deliver Deliverables subject to the terms and conditions set out below and in the cost estimate and roll-out plans provided. The Parties agree that all future work or mandates given by the Client to Thumbnail Visuals shall unless otherwise agreed in writing between the Parties be governed by the terms and conditions set out in this Agreement.
TERMS AND CONDITIONS
1. DEFINITIONS
In this Agreement, unless the context indicates otherwise, the words and expressions set out below shall have the meanings assigned to them and cognate expressions shall have a corresponding meaning, namely:
“Accepted Estimate” means a Cost Estimate accepted by the Client in accordance with clause 4.3;
“Agreement” means this agreement, including each Accepted Estimate and document, referred to herein, subject to any amendments or variations in accordance with clause 17.8;
“Thumbnail Visuals ” includes any product, document, business process, text, artwork, trade mark, branding, logo, slogan, design, still, graphic, video, photograph, sound recording, script, music, picture, document, software 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 Intellectual Property Rights therein) which is used, owned, developed and/or created by or for, or licensed to, Thumbnail Visuals Solutions at any time;
“Thumbnail Visuals ” means the person described as such on the Cover Schedule, or such other person as Thumbnail Visuals may notify Client in writing from time to time;
“Business Day” means any day other than a Saturday, Sunday or official public holiday in South Africa;
“Client Representative” means such person as the Client may notify Thumbnail Visualsin writing from time to time or, in the absence of any such notification, a representative of the Client that Thumbnail Visuals customarily deals with in the providing the Services in the ordinary course;
“Commencement Date” means, unless otherwise agreed between the Parties, the date of signature of this Agreement by the Party last in time to do so.
“Deliverables” means any creative work, strategy, proposals, presentations, press releases, reports, copy, documents, data or other materials developed by Thumbnail Visuals expressly, specifically and exclusively for the Client in terms of an Accepted Cost Estimate but which, for the avoidance of doubt, excludes Thumbnail Visuals Proprietary Material;
“Cost Estimate” means a quotation, proposal or cost estimate issued by Thumbnail Visuals to Client in respect of Services to be provided and/or Deliverables to be delivered.
“Intellectual Property” means all patents, rights to inventions, copyright and related rights, all other rights in the nature of copyright, trademarks, trade names and domain names, business names, logos, service marks, moral rights, know-how, business methods and trade secrets, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in design, database rights and any other intellectual property rights (including but not limited to moral rights), in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals, extensions or revivals of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future and in any part of the world (and “Intellectual Property Rights” means any ownership, license or associated rights relating to Intellectual Property);
“Parties” means Thumbnail Visuals and the Client and “Party” shall mean either one of them;
“Services” means, subject to the provisions of this Agreement, the services specified, and to be provided, by Thumbnail Visuals and accepted by Client under this Agreement in an Accepted Estimate or as otherwise agreed in writing between the Parties; and
“VAT” means Value-Added Tax at the rate prescribed from time to time.
2. INTERPRETATION
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
References to “company” shall be to anybody corporate, wherever incorporated.
A reference to one gender shall include a reference to the other genders.
Words in the singular shall include the plural and vice versa.
References to statutory provisions shall be construed as references to those provisions as respectively amended or re-enacted or as their application is modified by other provisions (whether before or after the date of this Agreement) from time to time and shall include any provisions of which they are re-enactments (whether with or without modification).
References to clauses and schedules are to clauses to and Schedules of this Agreement. A reference to a paragraph is to a paragraph of the relevant Schedule.
Writing or written includes email.
Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words “without limitation” following them. The words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
The headings are inserted for convenience only and shall not affect the construction of this Agreement.
Except to the extent otherwise provided, each Accepted Estimate and each Schedule shall be construed and interpreted in accordance with the provisions of this agreement and in the event of a conflict between an Accepted Estimate and this agreement, the provisions of the relevant Schedule shall prevail (unless the parties otherwise agree in writing).
3. THE SERVICES
The Client hereby appoints Thumbnail Visuals with effect from the Commencement Date to provide the Services and the Deliverables in accordance with each relevant Accepted Estimate, and Thumbnail Visuals hereby accepts such appointment.
The Parties agree that the terms and conditions contained in this Agreement (together with each relevant Accepted Estimate) shall govern the relationship between them with regard to the provision of the Services and the Deliverables. This Agreement is an enabling agreement in terms of which Thumbnail Visuals will provide the Services to the Client, and the details of the specific Services which Thumbnail Visuals will provide to the Client from time to time shall be as recorded in an Accepted Estimate.
Thumbnail Visuals undertakes to perform the Services and provide the Deliverables in a diligent, efficient and professional manner and shall use its best endeavors to adhere to any deadlines and/or time frames as approved between the parties, taking into account that Thumbnail Visuals ability to perform efficiently is based on certain assumptions which may change during the course of Thumbnail rendering its services to the Client in terms hereof. Any such changes may have a bearing on performance and Thumbnail Visuals shall not be held liable for any failures and/or delays which are beyond its reasonable control. Where no time frame or delivery dates have been set and/or deadlines have been agreed to, Thumbnail Visuals will render its services within a reasonable period. The Client agrees that Thumbnail shall not be held liable for any delays which are outside of its reasonable control, including but not limited to, delays caused by Client’s own failure or delay in approving work and/or Estimates and/or any delays caused by third party contractors.
4. ESTIMATES
Prior to the commencement of any work by Thumbnail Visuals in connection with the Services and Deliverables, Thumbnail shall issue the Client with an Estimate specifying:
the Services and/or Deliverables to be provided to the Client by Thumbnail;
the fees to be charged by Thumbnail Visuals to the Client for the Services and/or Deliverables to be provided; and
to the extent relevant, dates by which or upon which such Services and/or Deliverables are to be provided.
Prior to signature by the Client, each Estimate will be valid for 30 days from the date of issue thereof unless revoked or replaced by Thumbnail Visuals before the expiry of such period and prior to receipt by Thumbnail of a copy thereof signed by the Client.
Upon acceptance and signature of an Estimate by the Client, such Estimate shall be an Accepted Estimate which shall henceforth be binding on the Parties and shall be subject to and construed in accordance with the terms and conditions of this Agreement.
In the event that the Client wishes to appoint Thumbnail Visuals to provide additional services, being services not already subject to an Accepted Estimate, Thumbnail Visualsshall issue the Client with a new Estimate in respect of such services in accordance with this clause 4.
An Accepted Estimate may amend the terms and conditions of this Agreement only with respect to the subject matter of such Accepted Estimate. Insofar as any Accepted Estimate specifically amends the provisions of this Agreement, such amended provisions in the Accepted Estimate shall prevail in respect of that Accepted Estimate only. Amendments to this Agreement of general application shall be dealt with in accordance with clause 17.8.
In the event of a conflict between the provisions of this Agreement and an Accepted Estimate, the provisions of the Accepted Estimate shall prevail.
5. PROVISION OF SERVICES/DELIVERABLES
In providing the Services, Thumbnail Visuals will take reasonable steps to understand the Client’s business and to familiarize itself with the market(s) within which the Client operates. To this end, the Client agrees to provide Thumbnail Visuals from time to time and without delay with any information, documentation, guidance and/or assistance (together, “Information”) that Thumbnail Visuals might reasonably require to provide the Services.
The Client authorizes, and grants a license to, Thumbnail Visuals to use any proprietary Information furnished to Thumbnail Visuals in terms of clause 5.1 for the sole purpose of enabling Thumbnail Visuals to provide the Services and the Deliverables and warrants where necessary that all necessary third party consents have been obtained by the Client for such use.
Thumbnail Visuals shall deliver each Deliverable to the Client in accordance with the provisions of the relevant Accepted Estimate. Where such provision is not made in the Accepted Estimate, delivery shall be deemed to have occurred and risk in the Deliverable shall transfer upon physical or constructive delivery, submission, transfer or transmission (electronic or otherwise) of the Deliverable to the Client by Thumbnail.
6. CHANGE CONTROL
The Thumbnail Visuals Representative and the Client Representative shall meet at least once every two months (or more often if so agreed between the parties) to discuss matters relating to the Services and Deliverables. If either party wishes to change the scope or execution of the Services or Deliverables, it shall submit details of the requested change to the other in writing.
If the Client requests a change to the scope or execution of the Services and/or Deliverables, Thumbnail Visuals shall, within a reasonable time, provide a written estimate to the Client of:
the likely time required to implement the change;
any necessary variations to Thumbnail Visuals charges arising from the change;
the likely effect of the change on the scope, execution, milestones and/or other issues relating to the Services and/or Deliverables; and
any other impact of the change on this Agreement.
If the Client wishes for Thumbnail Visuals to proceed with the change, Thumbnail Visuals shall have no obligation to do so unless and until the parties have agreed the necessary variations to its charges, the Services and/or the Deliverables and any other relevant terms of this Agreement to take account of the change and this Agreement has been varied in accordance with clause 6.2.
7. PAYMENT
Unless and/or to the extent otherwise provided in a relevant Accepted Estimate, Thumbnail Visuals shall issue invoices and the Client shall pay all fees, costs and disbursements set out in and in accordance with each Accepted Estimate in consideration of the relevant Services and/or Deliverables.
In the absence of provision for the method of payment in an Accepted Estimate, the Client shall pay to Thumbnail in respect of each Accepted Estimate:
upon acceptance by the Client of the Accepted Estimate in terms of clause 4.3, the following invoice terms apply:
50% (fifty percent) of the total fee specified will be due within 7 (seven) working days of the Client receiving the invoice; and
the balance of the total fee, together with any other remaining payments or charges due under or in respect of such Accepted Estimate, within 30 days of invoice following completion of the Services before services will be delivered.
In the case of a “retainer” fee, an invoice will be generated and payment due by the 25th (twenty fifth) for the retainer month going forward.
All rates and fees quoted by Thumbnail Design Agency are quoted exclusive of VAT and any other applicable taxes. Subject to clause 7.1, the Client shall render payment to Thumbnail in respect of VAT and any other applicable taxes concurrently with each underlying payment in terms of clause 7.1 and 7.2 on which the relevant VAT amount is calculated.
Late payments shall be subject to interest 5% per month, which interest shall be payable by the Client to Thumbnail Design Agency on demand.
All amounts payable by the Client to Thumbnail Design Agency shall be paid in cleared funds, free of withholding, deduction, set-off or exchange, into Thumbnail’s banking account.
8. THIRD PARTY CONTRACTORS AND STAFF
Thumbnail Design Agency may from time to time appoint and/or sub-contract third parties to perform Services or provide Deliverables (in part or in full) provided that Thumbnail Design Agency shall remain the primary point of contact with the Client.
Thumbnail Design Agency shall use due care and skill in the selection and appointment of third parties in accordance with clause 8.1.
The Client hereby undertakes to Thumbnail Design Agency, that it shall not for the duration of this Agreement and for a 24 month period thereafter, whether directly or indirectly, nor in any capacity whatsoever, circumvent Thumbnail Design Agency by directly engaging a third party supplier appointed by Thumbnail Design Agency, to the exclusion of Thumbnail Design Agency, in connection with the Services and Deliverables. The Client agrees that a breach of this provision shall constitute a material breach of this agreement, entitling Thumbnail Design Agency in its discretion, to terminate its services to the Client and/or to claim damages and opportunity loss costs.
The client will, in its dealings with Thumbnail Design Agency, work with various Thumbnail Design Agency employees. The Client hereby undertakes to Thumbnail Design Agency that it shall not approach any of these employees with offers of direct employment for a 24 month period post termination of its business dealings with Thumbnail Design Agency.
9. RISK, RIGHT, TITLE AND INTEREST, INTELLECTUAL PROPERTY
All risk in each Deliverable shall pass to the Client upon delivery in accordance with this Agreement.
All right, title and interest in and to the Thumbnail Design Agency Proprietary Materials shall at all times remain fully vested in and belong to Thumbnail Design Agency and its licensors, and the Client shall have no rights whatsoever in or to the Thumbnail Proprietary Materials other than as granted pursuant to Agreement.
The Thumbnail Visuals Agency Proprietary Material may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited in whole or in part without Thumbnail Design Agency’s written consent.
Subject to the provisions of this clause 9, all right, title and interest in and to each Service and Deliverable shall be owned and remain fully vested in Thumbnail until the Client has paid in full, in accordance with clause 7 above, all amounts owing to Thumbnail Visuals Agency under the relevant Accepted Estimate in respect of such Service and/or Deliverable, whereupon Thumbnail Design Agency shall cede to the Client all of its right, title and interest therein.
As of the Commencement Date, the Client grants to Thumbnail Design Agency a non-exclusive license for the continued duration of this Agreement to perform any lawful act including the right to use the Client’s Intellectual Property for the sole purpose of providing the Services to the Client pursuant to this Agreement and the Accepted Estimates.
10. RIGHTS OF TERMINATION ON BREACH AND EARLY CANCELLATION
Either Party (the “Aggrieved Party”) may terminate this Agreement immediately by giving written notice to the other Party (the “Defaulting Party”) if any of the following events occurs:
the Defaulting Party has failed to make any payment of any sum due and payable under this Agreement within 14 days of written notice from the Aggrieved Party specifying the amount and nature of the sum due and requiring it to be paid;
the Defaulting Party commits any material breach of any of the provisions of this Agreement and fails to remedy it within 14 days after receiving a written notice from the Aggrieved Party containing full particulars of the material breach and requiring it to be remedied;
business rescue proceedings as contemplated under the Companies Act, No. 71 of 2008 (as amended, repealed and/or replaced from time to time) are instituted and/or implemented in respect of the Defaulting Party.
upon investigation it has been found that the client is or has unethical motives, appears to be unlawful, or is rude or malignly in behaviour or actions towards any employees, the company or business partners. Thumbnail reserves the right to cancel any agreements with immediate effect to enforce Thumbnail’s strict benignant working environment.
All accounts should be paid in full before any transfer of services will take place. This includes, but is not limited to domains, email accounts, open files and social media accounts.
Early cancellation: In the event of the Client canceling any Services after having given its approval for Thumbnail Design Agency to commence with such work, the Client agrees that it shall be liable to Thumbnail for any costs incurred and cost of work done by Thumbnail Design Agency up to the date of such cancellation, regardless of the nature of the services rendered (“the cancellation fee”). The costs incurred will be payable by the Client within 30 (thirty) days of the date of cancellation and upon Thumbnail issuing its invoice to the Client.
Termination of this Agreement for any reason shall not affect the accrued rights of the Parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other and all provisions which are expressed to survive this Agreement (including but not limited to clauses 1, 9, 10.2, 11, 13, 14, and 19) shall remain in force and effect.
In the event of a cancellation of an activation, where a CE has been approved by Client, the following cancellation fees apply:
30 days prior to an event – 20% of the total event cost is to be billed by WK to Client.
14 days to 29 days prior to an event – 30% of the total event cost is to be billed by WK to Client.
1 week prior to an event – 50% of the total event cost is to be billed by WK to Client (Unless additional costs have been incurred by WK, in which case these need to be paid for by the Client).
Less than 7 days prior to an event – 75% of the total event cost is to be billed by WK to Client (Unless additional costs have been incurred by WK, in which case these need to be paid for by the Client).
11. LIABILITY AND INDEMNITY
Unless otherwise expressly provided in this Agreement, the Parties’ liability to one another under this Agreement, howsoever arising, shall be limited to direct damages and losses only and in no event shall either Party be liable for any:
business interruption, loss of use, profit, anticipated profit, contracts, revenues, goodwill, anticipated savings, business information, data or other pecuniary loss; or
consequential, incidental or indirect losses; or
special or other damages, arising out of this Agreement Clause 11.a shall not operate to exclude any liability of a Party arising as a result of that Party’s fraudulent conduct or in respect of any death or personal injury caused by that Party’s negligence.
12. FORCE MAJEURE
If either Party is prevented or restricted directly or indirectly from carrying out any or all of its obligations under this Agreement (the “Affected Party”) due to any cause beyond the reasonable control of the Affected Party (including without limiting the generality of the foregoing, any war, civil commotion, political or civil disturbance, riot, insurrection, strike, lock-out, labor dispute or other industrial action, boycott, fire, explosion, flood, storm, subsidence, volcanic eruption or other volcanic activity, epidemic or other natural or physical disaster, sabotage, terrorism, acts of any state or government or other authority or other acts of God), then the Affected Party shall be relieved of its obligations in this Agreement during the period that such event and its consequences continue but only to the extent so prevented and shall not be liable for any delays or failure in the performance of any of its obligations hereunder or for any loss or damage (general, special or consequential) which the other Party may suffer, due to or resulting from such delay or failure, provided that written notice shall within ten Business Days of the occurrence constituting force majeure, be given by the Affected Party to the other Party concerned, and provided further that the obligation to give such notice shall be suspended to the extent necessitated by such force majeure.
Any Party invoking force majeure shall use its reasonable endeavors to terminate the circumstances giving rise to force majeure and upon termination of the circumstances giving rise thereto, shall forthwith give written notice to the other Party concerned.
The Parties agree that should the circumstances giving rise to force majeure continue for a period of more than thirty (30) days after the Affected Party has notified the other Party of such circumstances in terms of clause 12.1, the Party who has not claimed force majeure may terminate this Agreement by notice in writing to the other Party, in which event neither Party shall be liable to the other for any losses or damages as a result of such force majeure.
13. CONFIDENTIALITY
All communications between the Parties, and all information and other materials supplied to or received by either of them from the other (the “Confidential Information”) shall be kept confidential by the Parties unless or until the Party receiving the Confidential information (the “Receiving Party”) can reasonably demonstrate that the Confidential Information (or the relevant portion thereof):
is already in the public domain through no fault of its own;
has been lawfully obtained from any third party who/which was under no obligation to keep such communication, information or material confidential;
is already lawfully known to the Receiving Party at the time that it receives such information (and the Receiving Party is under no prior obligation to keep such information confidential); or
is disclosed by the Receiving Party to satisfy the order of a court of competent jurisdiction or of a governmental or regulatory body, or to comply with the provisions of any law or regulation in force from time to time, provided that in these circumstances the Receiving Party shall:
disclose only that portion of the Confidential Information which it is legally required to disclose; and
use its reasonable endeavors to protect the confidentiality of such Confidential Information to the fullest extent practicable.
The Parties shall use all reasonable endeavours to procure the observance of these restrictions and shall take all reasonable steps to minimise the risk of disclosure of Confidential Information by those persons required to possess any such information and who shall have access to such information, and will instruct those persons on the confidentiality of such information, ensuring that only they themselves and such of their employees and directors shall have the duty to treat the same as confidential.
The obligations contained in this clause 13 shall endure, even after the termination of this Agreement for whatever reason.
14. NO COMPETITION OR SOLICITATION
The Client acknowledges that Thumbnail’s employees and its preferred third party contractors and consultants will have a close working relationship with the Client and that Thumbnail is reliant upon its employees and its preferred third party contractors and/or consultants and has invested substantial time and money in them and/or in supporting the businesses.
The Client undertakes and agrees with Thumbnail that it will not at any time during the term of this Agreement or for a period of one year from the date at which this Agreement terminates or expires, however that may occur:
induce to leave, solicit or entice away or endeavor to induce to leave, solicit or entice away any director or employee of Thumbnail who has undertaken work for the Client or has had any dealings with the Client as a result of Thumbnail (and the Client agrees that, without prejudice to any other rights or remedies that Thumbnail might have, if the Client acts in breach of this provision it will be liable for fee for each of the relevant employee induced to leave, solicited or enticed away at a rate equivalent to six months’ wages or salary for the relevant employee;
solicit or offer services or custom, or endeavor to solicit or offer services or custom, to any subcontractor or consultant engaged by to perform or provide services or perform obligations under or in connection with this Agreement to Thumbnail and/or the Client (and the Client agrees that, without prejudice to any other rights or remedies that Thumbnail might have, if the Client acts in breach of this provision it will be liable for fee for each of the relevant consultant induced, solicited or enticed away at a rate equivalent to six months’ fees that would have been earned by that consultant or contractor through its work with the Client; or
cause or permit any person directly or indirectly under its control or supervision, or in its employ, to do any of the acts or things specified above.
15. ARBITRATION
The Parties agree that, in the event of a dispute arising in respect of this Agreement, the senior executives of each Party respectively authorised to settle disputes shall use best and bona fide endeavours to resolve such dispute within 14 days of either Party notifying the other in writing of the existence of the dispute. Failing resolution of the dispute within the 14 day period, the Parties agree to submit to arbitration proceedings in respect of such dispute in accordance with this clause 15.1.
Subject to clause 15.1, any dispute arising out of this Agreement or the interpretation thereof, both while in force and after its termination, shall be submitted to and determined by arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa (the “Rules”). Such arbitration shall be held in Cape Town unless otherwise agreed and shall be held in a summary manner with a view to it being completed as soon as possible.
There shall be one arbitrator who shall be, if the question in issue is:
primarily an accounting matter, an independent chartered accountant of at least 10 (ten) years’ standing;
primarily a legal matter, a practising Senior Counsel or commercial attorney of at least 10 (ten) years’ standing;
any other matter, a suitably qualified person.
The appointment of the arbitrator shall be agreed upon between the Parties, but failing agreement between them within a period of 14 (fourteen) days after the arbitration has been demanded, either of the Parties shall be entitled to request the Chairman for the time being of the Arbitration Foundation of Southern Africa to make the appointment who, in making his appointment, shall have regard to the nature of the dispute.
The arbitrator shall have the powers conferred upon an arbitrator under the Rules.
The award of the arbitrator on conclusion of the arbitration will be final and binding. Each of the Parties hereby submits itself to the Western Cape High Court (Cape Town) should any other Party wish to make the arbitrator’s decision an order of Court.
Unless the arbitrator in the exercise of his discretion decides otherwise, the costs of the arbitration and the prior proceedings before the High Court will follow the outcome of the award.
The arbitrator will make his award in writing, setting out the reasons for his findings.
16. DOMICILIUM CITANDI ET EXECUTANDI
Any notice or other communication to be given or served under or in connection with this Agreement shall be in writing and shall be:
delivered by hand, delivery by courier shall be regarded as delivery by hand;
sent by pre-paid registered post or recorded delivery;
(if the notice is to be served by post outside the country from which it is sent) sent by registered airmail; or
sent by email, to the party due to receive the communication.
Any communication given pursuant to clause 16.1 shall be sent to: The Client: info@thumbnaivisualsl.co.za For attention: Sphephelo Ndlovu.
A communication is deemed to be given or served:
if delivered by hand, at the time it is left at the address;
if sent by pre-paid registered post or recorded delivery on the fifth Business Day after posting;
in the case of registered or recorded airmail, ten Business Days from the date of posting; or
if sent by email, when the email is sent.
In the case of a notice given or served by hand or by email where this occurs after 5.00pm on a Business Day, or on a day which is not a Business Day the date of service shall be deemed to be the next Business Day.
In proving service of the communication, it shall be sufficient to show that the envelope containing the communication was properly addressed and posted as a pre-paid registered or recorded post or airmail (as the case may be) or if sent by email to the email address set out in clause 16.2.
Any notification of a change of contact details under this clause 16 shall only be effective on the date specified in the notification as the date on which the change is to take place or if no date is specified or the date specified is less than five Business Days after the date on which the notice is deemed to have been served, the date falling five Business Days after notice of any such change is deemed to have been given.
17. GENERAL
The Client acknowledges that, unless and until this Agreement, together with any Estimate, have been signed by the Client and returned to Thumbnail Design Agency, Thumbnail Design Agency shall not be required to perform any Services in terms of the relevant Estimate.
Unless otherwise provided in this Agreement (and in particular in clause 8), no Party may cede, delegate, assign, sub-licence, sub-contract, share or part with any of its rights or obligations under this Agreement to any third party without the prior written consent of the other Party.
This Agreement as defined in clause 1.a contains the entire agreement between the Parties as to the subject matter hereof.
The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Thumbnail which is not set out in the Agreement. Save to the extent otherwise provided herein, no undertaking, representation, term or condition relating to the subject matter of this Agreement not incorporated in this Agreement shall be binding on either of the Parties.
No relaxation or indulgence granted by either Party to the other shall be deemed to be a waiver of any of that Party’s rights in terms hereof, nor shall same be deemed to be a novation of the terms and conditions and nor shall same stop either Party from enforcing its rights hereunder.
No single or partial exercise or non-exercise of any right, power or remedy provided by this Agreement or by law shall preclude any other or further exercise of such right, power or remedy or of any other right, power or remedy.
The rights, powers and remedies provided by this Agreement are cumulative and, unless otherwise provided, are not exclusive of any rights, powers and remedies provided by law.
No agreement to vary, add to or cancel this Agreement (including any Accepted Estimate) shall be of any force or effect unless reduced to writing and signed on behalf of both Parties to this Agreement.
If any provision of this Agreement is or becomes illegal, invalid or unenforceable under the law of any relevant jurisdiction, that shall not affect or impair:
the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement.
This Agreement (together with any other document referred to herein which requires signature) may be signed in two counterparts, one or more of which may be delivered via fax or email (scanned), in which event the two originals together will constitute a binding agreement between the Parties.
Each Party shall bear its own costs in connection with the drafting and negotiation of this Agreement.
Nothing in this Agreement and no action taken by the Parties under this Agreement shall create or be deemed to create a partnership or establish the relationship of principal and agent or any other fiduciary relationship between the Parties and no Party shall have the right to obligate or bind the other in any manner whatsoever.
This Agreement supersedes and replaces any and all agreements between the Parties and undertakings given to or on behalf of the Parties in relation to the subject matter hereof.
18. THIRD PARTY RIGHTS
No person who is not a party to this Agreement shall have any right to enforce this Agreement (or any agreement or document entered into pursuant to this agreement) or any rights under this Agreement.
19. GOVERNING LAW
This Agreement, its interpretation and termination shall be governed by and construed in accordance with the laws of South Africa.
Each Party irrevocably submits to the exclusive jurisdiction of the Magistrates’ Courts (subject to clause 15.a) over any claim or matter arising under or in connection with this Agreement.
WEBSITE TRANSFERS
Where websites are transferred to Thumbnail’s server, Thumbnail will assist with the transfer at a reduced transfer rate.
Where a website migration takes place and the site is transferred to the client’s own server (hosting provider), the client will be liable to a full transfer fee.
Where a request is submitted to transfer away from Thumbnail, it will be the client’s responsibility to oversee the process and that all backups are made timeously. The technician (appointed by the client) will receive access to the server to backup and download all files required. Thumbnail reserves the right to withhold permissions if the account is in arrears.
CANCELLATION OF SERVICES
Thumbnail may discontinue services or goods if an amount payable to Thumbnail is overdue or take down a website or application permanently in any case where an amount payable is overdue by more than 30 days. In any such event, you remain liable for the total cost of the contract including all disbursements, unless otherwise agreed between the parties. Furthermore, Thumbnail will not refund ( in part or in whole) any deposits received for the commencement of work, under any circumstances unless agreed firstly in writing by Thumbnail. Thumbnail reserves the right to keep all funds from the deposit if work on a job has commenced and is terminated by either party. Thumbnail shall not be liable for any loss or damage whatever arising from such cancellation.
In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Thumbnail (including, but not limited to, any loss of profits) up to the time of cancellation.
If the project is cancelled by the client, the client will be responsible for covering the resource/design costs that occurred based on an hourly rate. The amount due shall be the lesser between the hourly rate’s total and the full invoice amount.
PRIVACY POLICY
Our Privacy Policy tells you what Personally Identifiable Information we may collect from you, how we may process your PII, how you can limit our use of your PII, and your rights to obtain, modify and/or delete any PII we have collected from you. Except as set out below, we do not share, or sell, or disclose to a third party, any information collected through our Website.
Thumbnail is committed to the security and privacy of all our customers. We take your privacy seriously, and we will work with you to ensure that you have an enjoyable online experience.
INFORMATION WE COLLECT
INFORMATION YOU PROVIDE US
We collect personal information when you request information about our services and products, interact with our Website forms/bots or customer service representatives, request delivery of white papers or other information, schedule an event or otherwise voluntarily provide such information through our Website or otherwise. This information includes the following categories:
Your Personal Contact Information, such as name, phone number and email address
Thumbnail services and products you may be interested in purchasing, including possible scopes of work and fee ranges
Your Company Information, including company website domain/URL, whether you represent a marketing agency, whether your company is a current customer of certain of our business partners
Generally, you will have control over the amount and type of information you provide to us when using our Website.
As a visitor to our Website, you can browse our Website to find out more about us. You are not required to sign in or provide us with any PII as a visitor.
INFORMATION COLLECTED AUTOMATICALLY
When you use our Website, we automatically collect certain information by the interaction of your mobile device or web browser with our Website.
COOKIES
Like many other websites, we use “Cookies.” A Cookie is a small piece of data stored on your computer or mobile device by your web browser. We use Cookies to identify the areas of our Website that you have visited. We also use cookies to enhance your online experience by eliminating the need to log in multiple times for specific content. Finally, we may use Cookies to personalize the content that you see on our Website or to customize marketing and other information we provide to you.
OTHER AUTOMATICALLY GATHERED INFORMATION
We may automatically record information when you visit our Website, including the URL, IP address, browser type and language, and the date and time of your visit. We use this information to analyze trends among our users to help improve our Website or customize communications and information that you receive from us. If combined with other information we know about you from previous visits, the data possibly could be used to identify you personally, even if you are not signed in to our Website.
GOOGLE ANALYTICS PRIVACY POLICY
Our Website uses “Google Analytics” to collect information about the use of our Website. Google Analytics collects information such as how often users visit our site, what pages they visit when they do so, and what other sites they used prior to coming to our site. We use the information we get from Google Analytics to improve our Website, services and products. Google Analytics collects only the IP address assigned to you on the date you visit our site, rather than your name or other identifying information. We do not combine the information collected through the use of Google Analytics with personally identifiable information. Although Google Analytics plants a permanent cookie on your web browser to identify you as a unique user the next time you visit our site, the cookie cannot be used by anyone but Google. Google’s ability to use and share information collected by Google Analytics about your visits to our site is restricted by the Google Analytics Terms of Use. http://www.google.com/analytics/terms/us.html. You can prevent Google Analytics from recognizing you on return visits to this site by disabling cookies on your browser. https://tools.google.com/dlpage/gaoptout
DO NOT TRACK SETTINGS
Some web browsers have settings that enable you to request that our Website does not track your movement within our Website. Our Website does not obey such settings when transmitted to and detected by our Website. However, this does not change our compliance in any other way with our Privacy Policy.
We may process information or use it to communicate with you on the basis that doing so is necessary to achieve a legitimate interest, either to you or to us. Where we use your information on this basis, we do so after having given careful consideration to:
– whether the same objective could be achieved through other means
– whether processing (or not processing) might cause you harm
– whether you would expect us to process your data, and whether you would consider it reasonable to do so
For example, we may process your data or communicate with you for any of the following purposes:
– advertising and marketing to you, which includes sending promotional communications, targeting advertising, and presenting you relevant offers based on information you provide or our prior dealings
– operating our business, which includes analyzing our performance, meeting our legal obligations, developing our workforce, and doing research
– record-keeping for the proper and necessary administration of our business
– responding to customer complaints or service requests
– responding to unsolicited communications from you to which we believe you would expect a response
– protecting and asserting the legal rights of any party
– insuring against or obtaining professional advice that is required to manage business risk
– protecting your interests where we believe we have a duty to do so
We will continue to use this information for this purpose until the legitimate interest no longer exists or such use is not necessary to achieve the legitimate interest.
OUR USE OF RE-MARKETING
Re-marketing involves placing a cookie on your computer when you browse our Website in order to be able to serve to you an advertisement for our products or services when you visit some other website. We may use a third party to provide us with re-marketing services from time to time. If so, then if you have consented to our use of cookies, you may see advertisements for our products and services on other websites.
THE USE OF A SEO SERVICE IS AT THE CUSTOMER’S OWN RISK
The Customer acknowledges that Thumbnail makes no warranty that a search engine optimization will lead to or improve any increase in sales, profits or any other form of improvement for the Customer’s business or any other purpose
To the fullest extent permissible by law, Thumbnail shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Thumbnail or otherwise. Where liability cannot be legally excluded, the liability of Thumbnail shall be limited to the cost of supplying the service again.
The Customer agrees to indemnify Thumbnail for any third party claim for damages arising out of or in any way connected with the supply of services to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Thumbnail or otherwise
The Customer expressly agree to indemnify and hold harmless Thumbnail, its subsidiaries, affiliates, officers, agents and other partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorney’s fees and disbursements and court costs) arising from or in connection with the Customer’s information, the Customer’s use of Thumbnail search engine optimization services.
Thumbnail does not refund any money received from clients for any past SEO work that they have been asked to carry out. All monies received by Thumbnail for any SEO work will not be refunded at any stage even if the client cancels the SEO service.