1. DESCRIPTION OF THE SERVICES.
1.1 The Marketer will generate and deliver leads to the client. All resources and Intellectual property (IP) used by the marketer is the property of the marketer. The marketer will design and implement the system in a professional and timely manner.
1.2 The parties may at any time modify the scope of the Services by including desired changes in a written “change order” that describes the changes, with the adjustment to the payment for the Services that will result from said changes. Such a change order shall only become effective once it has been signed and dated by both parties.
2. Digital Marketing Team.
2.1 The Marketer will only make use of personnel who are sufficiently qualified to provide the Services envisaged by this Agreement (the “Digital Marketing Team”).
2.2 The Marketer reserves the right to make changes to the Digital Marketing Team as it deems necessary, and in its sole discretion. Orientation of replacement personnel shall be at the Marketer’s expense.
3. Term / Scheduling.
3.1 This Agreement shall come into effect on the date of first payment.
3.2 The Marketer shall endeavor to reach Satisfactory completion of the Services whenever possible, within the lead time estimated by the Marketer, agreed upon between the Parties, and contained in the quotation.
3.3 The Client acknowledges that the estimated lead time may be subject to change, that this estimation does not include time during which the Marketer must wait for the Client to provide materials or information necessary for the completion of the Services. The Marketer agrees to notify the Client of any anticipated delays in completing the Services.
3.4 The term “satisfactory completion” of the Services means when the items set forth in Schedule A (depending on the package the client chose) is launch ready, pending client approval.
4.1 In consideration for its Services, the Client will pay the Marketer upfront and in advance the full total monthly cost, as contained in the quotation, before any work will commence. Of said full total cost, 70% (Seventy Percent) shall be non-refundable.
4.2 The Client will make payment to the Marketer on/before the 28th of each month. In the event that payment is not made on/before the 28th, the Marketer reserves the right to shut down the website, all funnels, any and all landing pages, any and all ads, emails and third-party Apps. If the Client cannot make payment on/before this date, the Client must come to an arrangement with the Marketer as to when payment will be made. Any leniency afforded to the Client shall not detract from or in any way release the Client from its contractual obligation of making prompt payments.
4.3 Monthly payments are non-refundable.
4.4 Should the Client wish to terminate the Marketer’s Services, one month’s paid notice is required and is to be confirmed in writing.
5. Ownership Rights.
5.1 The Digital Marketer/Designer/Copywriter/Online Advertiser and beyond, will retain ownership of all intellectual property and proprietary information which is included in the Services, also including but not limited to all source code, object code, screens, documentation, digital programming, operating instructions, design concepts, landing pages and funnels, ads, content, copywriting, graphics, and photographs.
5.2 Ownership of the domain names, hosting, characters, stored data, reports, and notes prepared by the Marketer shall vest in the Client upon the date that the Clients’ payment obligations with the Marketer is settled in full.
5.3 None of the information as referred to in 5.1 may be disclosed, copied, or given to any third party, and shall be kept confidential.
6. Marketer the Ownership Rights and Grant of License.
Notwithstanding any other provision of this Agreement, the Services will/may include programming code that the Marketer has previously developed for its own use (the “Marketer’s Prior Code”). The Marketer expressly retains full ownership of such code, including all associated rights to use such code. This code is not limited to custom code but processes of third-party Apps as well.
7. Copyright Notice.
The Marketer shall include the following copyright notice (or any other notices requested by the Client) to be displayed on each page of the Website that can be viewed by a user: “© 2021”
8.1 The Marketer will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Marketer, or divulge, disclose, or communicate in any manner any information that is proprietary to the Client (e.g., database and other stated confidential information). The Marketer will protect such information and treat it as strictly confidential.
8.2 The Client will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the Client, or divulge, disclose, or communicate in any manner any information that is proprietary to the Marketer (e.g., trade secrets, intellectual property, strategies, tactics, formulas, landing pages, know-how and confidential information). The Client will protect such information and treat it as strictly confidential.
8.3 The obligation of confidentiality contained in clause 8 shall continue to be binding on the Parties after the termination of this Agreement.
8.4 The Marketer may seek and obtain injunctive relief against the release or threatened release of such proprietary and/or confidential information in addition to any other legal remedies which may be available to the Marketer.
9. Independent Contractor.
9.1 The Marketer is an independent contractor with respect to its relationship to the Client. Neither the Marketer nor the Marketer’s employees are, or shall be deemed for any purpose, to be employees of the Client. The Client shall not be responsible to the Marketer, the Marketer’s employees, or any governing body for any payroll taxes related to the performance of the Services.
9.2 The Marketer as an independent contractor shall be paid by the Client on the stated invoice date.
9.3 If the invoice is not paid in full on the invoice date, the Client will be responsible for penalties and interest that accompany the full amount of the invoice.
The Marketer will not use the trademarks, service marks, symbols, or any abbreviations of the Client, without the prior written consent of the Client.
11. Warranty – Marketer.
11.1 The Marketer warrants to the Client that all software programming, web pages, and materials delivered to the Client in connection with the Services are free from defects in materials and faulty workmanship under normal use, and that the Website will operate properly with compliant web browsers.
11.2 The Client acknowledges that no website design process can guarantee bug-free results, and that the Marketer shall provide the Services in a workmanlike manner, within local industry standards and tolerances for commercial applications, provided the changes are inside the scope of work provided.
12. Warranty – Intellectual Property Rights.
12.1 The Marketer represents and warrants that it has the unencumbered right and power to enter into and perform in terms of this Agreement, that the Marketer is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, contractual, or other proprietary rights of third parties in or to any programming or materials included by the Marketer in the Services or trade names related to the Services.
12.2 In the event of any claim, charge, suit, or proceeding by any third party against the Client alleging such infringement, the Marketer shall defend such claim, charge, suit or proceeding. The Marketer shall indemnify and hold the Client harmless from and against any loss, cost, damage, or expense (including attorney fees and legal expenses) incurred by the Client that may result by reason of any such claim, charge, suit or proceeding.
12.3 The Marketer does not share any intellectual property, strategies, designs, copywriting, ads, landing pages or anything else pertaining to this service with any other marketer or third party. The Marketer shall not work with any other marketer on a project relating to digital marketing services unless agreed upon in writing.
13. Warranty – Client.
The Client represents and warrants to the Marketer that the Client owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials (“the materials”) provided by the Client for inclusion in the Website, and that the Client has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The Client shall indemnify and hold the Marketer harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials.
14. Disclaimer of Warranties.
Except as expressly set forth in this Agreement, the Parties hereby specifically disclaim any representations or warranties, express or implied, regarding the services, including any implied warranty of merchantability or fitness for a particular purpose, or implied warranties arising from the course of dealing, or the course of performance.
15. Limitation of Liability.
15.1 Under no circumstances shall either party be liable to the other party or any third party for indirect, incidental, consequential, special or exemplary damages (even if that party has been advised of the possibility of such damages), arising from any provision of this agreement such as, but not limited to, loss of revenue or anticipated profit or lost business, costs of delay or failure of delivery, or liabilities to third parties arising from any source.
15.2 The Marketer shall not be liable for any adverse or poor results due to the Client electing to use a strategy different and/or separate from the strategies contained in the Services of the Marketer.
15.3 The Marketer’s Services only amount to the generating of leads, and the Client acknowledges and takes cognizance of the fact that the Client is solely responsible for transforming those leads into sales. Under no circumstances shall the Marketer be responsible for sales on the Client’s behalf.
Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third-party claims, demands, liabilities, costs and expenses, including reasonable attorney’s fees, costs, and expenses, resulting from the indemnifying party’s material breach of any duty, representation, or warranty under this Agreement.
17.1 This Agreement shall automatically terminate upon completion of the Services.
17.2 Either party may terminate this Agreement at any time by providing 1 (One) month’s advanced written notice to the other Party. In the event that the Client terminates the Agreement by notice, the Client shall be obliged to pay the agreed upon fees to the Marketer up to the end of the notice period.
18. Termination on Default.
18.1 If a party defaults by failing to substantially perform any provision, term, or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14(fourteen) days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
18.2 Should the Client (being a company) which is duly represented in entering into this Agreement, not be able to fulfil its payment obligations for the Marketer’s services upon termination, the Clients’ representative shall be deemed to be jointly and severally liable for any outstanding amounts owed to the Marketer.
18.3 Should the innocent party engage the services of an attorney for the enforcement of any of the rights contained in this Agreement due to the breach of the defaulting party, said defaulting party shall be liable to pay all costs on an attorney and client scale, together with collection fees and interest.
19. Results may vary.
The Client hereby acknowledges and takes cognizance of the fact that the Services provided by the Marketer are largely subject to user response that changes frequently, algorithm and or program updates, testing processes, and that results may vary. To that end, the Marketer would encourage the Client to commit to the process for a minimum period of 4 to 6 months to see optimal results. The client will also be responsible for following up on leads to make their sales.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
21 Governing Law / Forum.
This Agreement shall be construed in accordance with the internal laws of the Republic of South Africa, without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the Province of Gauteng, and both parties expressly consent to jurisdiction in such courts.
22. Complete Contract / Amendment.
This Agreement supersedes all prior agreements and understandings between the parties for performance of the Services and constitutes the complete agreement and understanding between the parties. The parties may amend this Agreement in a written document signed by both parties.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
24. Domicilum and notices
24.1 The Client hereby elects the physical address as set out on the first page of the Agreement as its domicilium citandi et executandi address for the purposes of receiving any legal processes, actions and/or notices.
24.2 Any change to said elected address must be made known to the Marketer in writing within 10 (ten) business days of said change.
25. Client consent
25.1 The Client hereby provides consent, in line with the conditions of lawful processing of personal information provided by the Protection of Personal Information Act (“POPIA”), to the Marketer to process the Client’s personal information.
25.2 In line with the above granted consent, and in the interest of the Client, the Marketer hereby warrants the following:
25.2.1 Processing of the Client’s personal information shall be limited to that which is necessary and reasonable for the proper execution of this agreement, any annexures and/or supplementary or ancillary agreements hereto, and in the proper performance of the Marketer’s functions, for the protection of its interests, and to enable the Marketer to provide the relevant services to the Client.
25.2.2 Personal information shall be retained by the Marketer only for as long is necessary and/or allowable by law, and the Marketer will in accordance with its POPIA compliance procedures store, process, amend and destroy the Client’s personal information as provided for and specified by the relevant legislation from time to time.
25.2.3 Personal information shall not be disclosed by the Marketer to any third-party service providers unless they are contracted by operator agreement and are bound by mandate, and a duty of confidentiality. In the absence of such an agreement, personal information may still be processed by third parties, subject to the condition that said processing is lawful, necessary, and reasonable for the execution of this agreement.
25.2.4 The Marketer may disclose the Client’s personal information when required to do so by law, and to communicate or report to any state regulatory or any other governance body on any matter relating to the Client’s personal information that the Marketer is by law obliged to communicate and report on.
25.3 The Marketer may with written permission from the Client obtain information about the Client’s profile from any authorised and registered credit reference agency in the Republic of South Africa.
25.4 The Marketer may provide regular reports in respect of the Client’s payment conduct to any authorised and registered credit reference agency in the Republic of South Africa.
25.5 The Client may receive marketing messages, promotional updates, and client satisfaction surveys from the Service Provider (or designated service provider).
25.6 The Marketer warrants that it shall under no circumstances sell the Client’s personal information.
25.7 The Marketer warrants that all reasonable, technical, and organizational measures have been implemented to ensure the integrity and safety of said personal information in its’ possession and/or under its’ direct or indirect control, to ensure that said personal information remains secure and is protected against unauthorized and/or unlawful processing, accidental loss, destruction, damage or unauthorized alteration.
25.8 The Marketer from time to time shall make available the newest versions of its’ POPIA (Protection of Personal Information Act 4 of 2013) and PAIA (Promotion of Access to Information Act 2 of 2000) policies on its website at the following link: https://bornintelligence.com/, alternatively same may be requested by email from email@example.com.
25.9 The Information Officer of the Marketer can be contacted for any queries or concerns relating to the processing of the Client’s personal information at: firstname.lastname@example.org