ATKASA – Digital Agency Pty –
Client Terms and Conditions
1.1.These Terms and Conditions (“Agreement”) set forth the legally binding terms between the Marketing Agency (“Agency”, “we”, “us”, “our”) and the Client (“you”, “your”) for the provision of marketing services as described herein. By engaging our services, you agree to be bound by these Terms and Conditions.
2.1.The Agency shall provide marketing services to the Client as detailed in a separate Service Level Agreement (SLA) and/or project scope document(s),Cost Estimates and proposals which shall be incorporated into this Agreement by reference.
3. Fees and Payment Terms
3.1.Strict Payment Terms: The Client agrees to adhere to the payment terms specified in this Agreement. All payments are due strictly on presentation of the invoice unless otherwise agreed in an SLA. Any deviation from the payment terms may result in the suspension or termination of the services provided by the Agency.
3.2.Purchase Orders and Pre-Payments: The Agency shall not commence any project or work unless the Client has provided a valid Purchase Order or Cost Approval and has paid the relevant fees required in advance.
3.3.Service Level Agreement (SLA) Fees: SLA fees are strictly payable on the 1st of each month. Failure to pay the SLA fees on time may result in the suspension or termination of the services provided by the Agency. Any payment made after the 1st of the month will immediately incur interest charges at a rate specified by the Agency in the SLA or, if not specified, at the maximum rate permitted by law.
3.4.Release of Work: The Agency shall not release any work, materials, or deliverables to the Client unless all outstanding fees have been paid in full.
3.5.Changes to Brief or Scope of Work: Any changes to the initial brief or scope of work, as agreed upon by both parties, may require additional cost estimates. The Client shall be responsible for approving and paying any additional costs associated with such changes prior to those changes being implemented.
3.6.Reviews and Revisions: The Client is entitled to a total of one (1) review per project and prior to sign off. Any further changes or revisions requested by the Client will incur additional costs, which shall be payable by the Client.
3.7.Quotations: All projects and SLAs will be quoted on and approved by the Client prior to the commencement of work. Cost estimates provided by the Agency are based on the initial brief and scope of work supplied by the Client. The Client acknowledges and agrees that variables may affect the costs of a project, and the Client shall be responsible for any such additional costs.
3.8.Agency-Paid Media Budgets: In the event that the Agency is paying the media budgets for any campaigns, projects, etc. from its accounts, the Agency will charge a 7.5% service fee to cover banking costs, credit costs, and other associated expenses. This fee will be added to the invoice and is payable by the Client as part of the agreed payment terms.
4. Intellectual Property
4.1.Upon full payment of all fees and outstanding amounts, the Agency grants the Client a non-exclusive, perpetual, worldwide license to use the work, materials, and deliverables provided by the Agency solely for the purpose and in the manner agreed upon in the SLA and/or project scope document(s).
5.1.Both parties agree to keep all information relating to the other party confidential, including, but not limited to, trade secrets, proprietary information, and customer data.
6. Termination of Project or SLA
6.1.The SLA may be terminated subject to the clauses contained in the SLA.
6.2.In addition, the Client may cancel any project with the Agency by providing written notice as follows:
6.2.1 Before Commencement of any work done by the agency.
6.2.2 During the project at anytime by giving one (1) calendar month’s written notice within the first three (3) months of commencement, and/or by giving three (3) calendar month’s written notice subsequent thereto
6.3.In the event of cancellation under Clause 6.1 or 6.2, the Client shall remain liable for all SLA fees, project fees, and any additional costs the Agency may incur due to the cancellation during the notice period.
7. Limitation of Liability
7.1.The Agency’s total liability to the Client under this Agreement shall not exceed the total amount of fees paid by the Client to the Agency under this Agreement. In no event shall the Agency be liable for any indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenue, whether incurred directly or indirectly.
8. Governing Law and Jurisdiction
8.1.This Agreement shall be governed by and construed in accordance with the laws of The Republic of South Africa, without regard to its conflicts of law principles. Any disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the Johannesburg High Court.
9. Amendments and Addenda to Services and Fees
9.1.Should a Client request an upgrade of their SLA or additional work on a project, the acceptance of a Cost Estimate by the Client constitutes an addendum to this Agreement. The new services and costs specified in the addendum shall be accepted by both parties and shall form part of the Agreement.
10. Entire Agreement
10.1.This Agreement, together with any separate SLA and/or project scope document(s) and any addenda as described in Clause 9.1, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether oral or written, between the parties relating thereto. No amendment or modification of this Agreement shall be effective unless in writing and accepted/signed by both parties.
11. Amendments and Waivers
11.1.No amendment, modification, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom such amendment, modification, or waiver is sought to be enforced. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
12.1.If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be deemed severed from this Agreement, and the remaining provisions shall continue in full force and effect, as if this Agreement had been executed without the invalid, illegal, or unenforceable provision.
13.1.All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by email of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
14. Acceptance of Terms and Conditions
14.1.The Client agrees to be bound by the Agency’s Terms and Conditions upon acceptance of any cost estimate or upon signing an SLA with the Agency. The Terms and Conditions are available for review on the Agency’s website and are included in all email signatures as well as cost estimates for reference.
14.2.The Agency reserves the right to update or modify these Terms and Conditions at any time without prior notice to the Client. The Client’s continued engagement of the Agency’s services following any such changes constitutes acceptance of the revised Terms and Conditions..
15.1.This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
16.Breach of Agreement and Legal Action
16.1 In the event that the Client fails to abide by the terms of this Agreement, in whole or in part, the Agency reserves the right to institute legal action against the Client to enforce the terms of the Agreement or to seek any other remedies available under the law.
16.2 Should the Agency initiate legal action against the Client due to the Client’s breach of the Agreement, the Client shall be responsible for all costs and expenses incurred by the Agency in connection with such legal action, including but not limited to attorney’s fees, court costs, and any other related expenses.
17.1.The headings in this Agreement are for convenience only and shall not affect the interpretation or construction of any provision of this Agreement.