TERMS OF ENGAGEMENT OF MOOD CREATIVE AGENCY
This document sets out the terms and conditions upon which Mood Creative Agency (Pty) Ltd with registration number 2020/615774/07 with registered address at 1 Deane Road, Sea Point, Cape Town, Western Cape, 8005 (“Mood Creative Agency”) has agreed to provide its services to you, as the Client (“Terms”). Your acceptance of any Mood Creative Agency quotation or service indicates your explicit and/or tacit acceptance of the terms of engagement listed below, and any Annexures attached.
THE SERVICES
Mood Creative Agency will provide its services based on the requirements communicated by the Client verbally and in written correspondence (“the Services”), as set out in greater detail in Annexure A. From the Services, Mood Creative Agency will create a product for the client (“the Product”). Details relating to the Product are set out in greater detail in Annexure A.
Once the quote has been accepted and the Deposit is paid by the Client, where applicable, Mood Creative Agency will begin providing the Services. Alternatively, should the Client enter into a retainer with Mood Creative Agency (“the Retainer”), Mood Creative Agency shall begin providing the Services upon receipt of payment of the monthly Retainer amount.
The Client understands that Mood Creative Agency will require certain information, equipment or action from the Client and/or its contracted third-party service providers in order to properly render the Services. Failure or delay by the Client in providing this action or information will lead to delays in provision of the Services, for which Mood Creative Agency will not be liable.
RELATIONSHIP BETWEEN THE PARTIES
Mood Creative Agency is a service provider and has no employment relationship with the Client. Nothing contained in these Terms shall be deemed to constitute a partnership, joint venture, employer/employee agreement or the like between them. Mood Creative Agency shall not, by reason of the actions of any of the other parties, incur any personal liability as co-partner to any third party.
BRIEFING PHASE
Before the Services commence, Mood Creative Agency and the Client will meet or correspond to discuss their engagement, the Services, and complete any instruction-specific information (“Brief”).
The Client understands that any ideas which Mood Creative Agency presents in the Brief and the surrounding discussions are the intellectual property of Mood Creative Agency and that it will have no right whatsoever to use or disclose any of these ideas without Mood Creative Agency’s express prior written permission. The Client further understands that by breaching this clause 3.2, it will cause direct financial damage to Mood Creative Agency. As such, Mood Creative Agency reserves the right to claim damages, amongst other remedies, from the Client, should the Client fail to adhere to this provision.
PRESENTATION OF THE PRODUCT
Prior to the final Product being delivered to the Client, Mood Creative Agency will present the number of preliminary versions of the Product to the Client as detailed in the Brief. For each such presentation by Mood Creative Agency, the Client will provide feedback and thereafter Mood Creative Agency will alter the preliminary versions of the Product based on the Client’s feedback in alignment with the Brief.
Should the Client require further amendments to the Product after the final presentation, Mood Creative Agency may, in its sole discretion, charge an additional fee to the Service Fee. The additional fee will be communicated to the Client in advance.
A presentation of the preliminary Product created by Mood Creative Agency will be considered accepted and completed if the Client, following receipt of the presentation, has not requested any additional alterations within the time period stipulated in the Brief.
GENERAL OBLIGATIONS OF THE CLIENT
The Client undertakes to Mood Creative Agency, in relation to the Services that it will:
pay each invoice issued in terms of clause 6 timeously and in full;
provide the contact details of an internal person with decision-making authority nominated by the Client for the purposes of attending to all correspondence from Mood Creative Agency;
provide Mood Creative Agency with clear, timeous and reasonable instructions and directions where necessary;
uses the Product for the purpose for which it was created, and comply with any laws or regulations in force where the Product is used; and
it shall not do anything or allow any act to be done which does or is reasonably and foreseeably likely to prejudice the good name and reputation of Mood Creative Agency.
PAYMENT TERMS
Service Fee
Mood Creative Agency will charge a fee for the Services. This fee, including any necessary disbursements or additional costs as detailed in the quote, is detailed in the quote and subsequent related invoice/s (“Service Fee”).
The Service Fee does not include any import/export fees, collection/release charges, international taxes, licensing fees or other incidental fees which may arise through Mood Creative Agency’s provision of the Services for the Product. These additional costs will be for the Client’s account.
Invoices will reflect the Service Fee and any additional disbursements or costs, inclusive of Value Added Tax, where applicable.
Invoices will be paid free of exchange, bank fees or set off, by the Client into Mood Creative Agency’s South African bank account nominated in writing for that purpose, or as displayed on an invoice.
Ad Hoc Services
Once the quote has been accepted by the Client, and the invoice delivered to the Client for payment thereof, the Client will pay Mood Creative Agency as follows:
50% (fifty percent) of the Service Fee will be paid to Mood Creative Agency upon acceptance of the invoice by the Client (“the Deposit”);
Any tranches, fees or payments agreed upon during the execution of the project/work shall be paid on the agreed-upon due dates thereof; and
the remainder of the Service Fee and any additional costs or disbursements necessary for provision of the Services will be paid within 7 (seven) days after presentation of the final Product.
Retainer Services
Where the Services are being provided on a retainer basis, Mood Creative Agency will charge a monthly Service Fee for the Services. The Service Fee, including any necessary ongoing disbursements or additional costs, is detailed in the quote and subsequent invoice/s, which will be delivered by Mood Creative Agency to the Client by the 20th day of each month in which the Services are provided. The Client shall make payment of the full amount of the quote/invoice by the 25th day of the month in which they receive the quote/invoice. In the event that Mood Creative Agency delivers a quote/invoice to the Client after the 20th day of the month, the Client shall make payment of the full amount of the quote/invoice within 7 (seven) days after receipt of the quote/invoice.
Variations
The Service Fee is subject to change should the Brief be altered in any way by the Client after commencement of the Services, including any additional revisions to a presentation of the Product. Mood Creative Agency will provide a quote for the Services as varied, which additional sum will be added to the Service Fee. If the Client does not accept a new quote, Mood Creative Agency is not obliged to carry out any additional services.
In the event that disbursements require upfront payment, the Client will be required to pay the costs before Mood Creative Agency carries out the additional services.
Payment Delays
Mood Creative Agency reserves the right to suspend the Services in its sole discretion should any payment be delayed.
Should an invoice remain unpaid for more than 20 (twenty) calendar days, interest will be charged on any outstanding amounts at a rate equal to the South African published prime overdraft rate, compounded monthly, in arrears. The Client undertakes to pay any such interest along with the Service Fee, where necessary.
The Client acknowledges and agrees that it is not a valid reason to withhold payment of the Service Fee due to the Client not being paid by a third party, and accordingly, the Client will pay the Service Fee timeously, regardless of whether it has been paid by a third party or not.
CANCELLATION OF THE SERVICES
Should the Client wish to cancel the Services, the following will occur:
unless otherwise provided, the Client must give Mood Creative Agency ten (10) calendar days’ written notice of its intention to cancel the Services;
where the Services are provided on a retainer basis, the Client must give Mood Creative Agency thirty (30) calendar days’ written notice of its intention to cancel the Services;
Mood Creative Agency shall provide the Client with a final invoice which will cover all expenses, disbursements or Services already incurred or provided by Mood Creative Agency prior to the date of termination. The Client understands that the final invoice will include any reasonable loss Mood Creative Agency has suffered from cancellation with its third-party suppliers or from the cancellation of the Services generally;
Mood Creative Agency will firstly use the Deposit to set off the final invoice. In the event that there is an insufficient amount to cover the final invoice in the Deposit, the Client will be liable to pay the difference to Mood Creative Agency within 7 (seven) calendar days of receiving an invoice; and
the parties will hand over to the other party any document, film, storyboard, hard-drives, equipment or confidential information belonging to that party.
Should the Client advance or postpone the Production Schedule for any reason, including bad weather or availability of location, such advancement or postponement must be carried out at a time convenient to Mood Creative Agency.
OWNERSHIP OF THE PRODUCT
All ownership and copyright in the final presentation of the Product/s created out of the Services will remain Mood Creative Agency’s property until the Service Fee has been paid in full. Upon full and final payment being made by the Client, Mood Creative Agency shall assign ownership of the Product to the Client. Mood Creative Agency reserves the right to withhold or revoke any permission given to the Client to use the Product in the event that the Service Fee is not paid in full.
The Client will have no rights, title or interest to any of the contact details, information or database of contacts which Mood Creative Agency utilizes in providing the Services. Mood Creative Agency database of contacts, media and suppliers will at all times remain the intellectual property of Mood Creative Agency. Passing on these details will be at the discretion of Mood Creative Agency, unless previously agreed.
USE OF THE PRODUCT
Notwithstanding the above and unless otherwise agreed between the parties in the Brief, Mood Creative Agency may use in perpetuity any part of the Product for its own promotional or marketing purposes in any medium or public space (including its website and portfolio). It is the responsibility of the Client to inform Mood Creative Agency if any part of the Product is confidential or will have a detrimental effect on the Client if used by Mood Creative Agency for promotional or marketing purposes.
CREDIT FOR THE SERVICES
When specifically agreed upon in writing between the parties, or as per the Brief, Mood Creative Agency must be credited in any use of the Product on public platforms and on broadcast media, including but not limited to the Client’s website, any social media platform, blog posts and third party media coverage.
NON-SOLICITATION
The Client will not during the term of this agreement or for a period of 12 (twelve) calendar months following termination thereof, directly or indirectly solicit, employ or contract in any manner with any employee of Mood Creative Agency.
LIABILITY AND INDEMNIFICATION
Each party warrants to the other that any information, including but not limited to, images, footage, online content, documents or designs provided to a party in connection with the Services is free from any copyright and/or does not infringe upon any rights of any third party to which the information belongs or all fees, royalties and payments have been made to and permissions granted from the lawful copyright owner.
Apart from instances of dishonesty or gross negligence, Mood Creative Agency will not be liable for loss, damage or delay, including loss of profits and consequential loss, suffered by the Client as a result of Mood Creative Agency provision of the Services or negligence in respect thereof, including but not limited to spelling, editing, formatting, design or grammatical errors after the Client has accepted the final Product.
The Client agrees to hold harmless and indemnify Mood Creative Agency against any losses, expenses, claims, damage or delay, including loss of profits and consequential loss, suffered by the Client as a result of the utilisation by Mood Creative Agency of the services of any third-party suppliers, breach of any intellectual property rights or in the course of providing the Services.
Where Mood Creative Agency and the Client have agreed upon maintenance Services to be provided by Mood Creative Agency after delivery of the Product, Mood Creative Agency may not be held liable for any loss or damage suffered by the Client save where such loss or damage has been caused directly by way of negligence by Mood Creative Agency in providing the maintenance Services.
BREACH
Either party (“the innocent party”) shall have the right, at its election, to terminate these Terms forthwith by giving notice in writing to the other party (“the breaching party”) in the event that:
on written notice to that effect by the innocent party, should the breaching party commit any breach or permit the commission of any breach of any material obligation or warranty contained in the Terms and, in respect of such a breach capable of remedy, fail to remedy that breach within 5 (five) business days after the giving of written notice to that effect by the innocent party to the breaching party; or
the breaching party repeatedly breaches any of the terms and/or conditions of the Terms in such a manner as to justify the innocent party in holding that the breaching party’s conduct is inconsistent with the intention or ability of the breaching party to carry out the provisions of the Terms.
The cancellation of the Terms by the innocent party in the circumstances contemplated in clause 13.1 shall be without prejudice to any other rights or remedies the innocent party may have in law (including the right to claim damages).
In the event of cancellation of the Terms in the circumstances contemplated in clause 13, written notice of any such cancellation shall be given and such cancellation shall take effect on the giving of such notice.
FORCE MAJEURE
It is agreed that neither party shall be liable for delay or failure to perform any obligations contained herein if such delay is due to acts of god, fire, earthquake, labour dispute, war, martial law, interruption of transport, government order, electrical load-shedding or surges, riot, revolution, outbreak of epidemic diseases or any other cause (besides bad weather) beyond the reasonable control of the parties.
CONFIDENTIALITY
Neither party shall during or after the provision of the Services use to the prejudice or detriment of the other party, or divulge to any person any material, trade secret or any other confidential information concerning the business affairs of the other party which may have come into its possession or knowledge during the course of these Terms or pursuant to the booking or provision of the Services.
DISPUTE RESOLUTION
Should any dispute, disagreement or claim arise between the Client and Mood Creative Agency concerning the Services or anything related thereto, the parties shall endeavour to resolve the dispute amicably, by negotiation, and with the best interests of both parties in mind.
Should the parties fail to resolve such dispute in the aforesaid manner or within such further period as the parties may agree to in their negotiation, it shall be resolved with the assistance of any applicable regulator, or finally, by arbitration in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator appointed by Mood Creative Agency.
The parties both agree that in no circumstance will either party publicize the dispute on any media platform, including social media. The parties understand that any publicity of this nature can cause serious damage to the other party, which damage may result in a financial claim.
SERVICE ADDRESS
Each of the parties choose domicilium citandi et executandi for the purposes of the giving of any notice, the payment of any sum, the serving of any process and for any other purposes arising from the Terms at their respective addresses as nominated to each other in writing, or as per the Brief, from time to time.
GENERAL
Survival of Rights, Duties and Obligations: Termination of the Terms for any cause whatsoever shall not release either party from any liability which at the time of termination has already accrued to the other or which thereafter may accrue in respect of any act or omission prior to such termination.
Entire Agreement and Variation: No alteration, consensual cancellation, variation of, or addition to these Terms shall be of any force or effect unless reduced to writing and signed by both parties (one party being a duly authorised director of Mood Creative Agency). These Terms contain the entire agreement between the parties and neither party shall be bound by any undertakings, representations, warranties, promises or the like not recorded herein.
Counterparts: The Terms may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
Indulgences: No indulgence, leniency or extension of time which any party (“the grantor”) may grant or show to the other shall operate as an estoppel or in any way prejudice the grantor or preclude the grantor from exercising any of its rights in the future.
Governing Law: The Terms shall be governed by and interpreted in accordance with the law of the Republic of South Africa. All disputes, actions and other matters in connection with the Terms shall be determined in accordance with such law.
Invalidity: Any provision of the Terms which is held invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Severability: Each undertaking in the Terms shall be construed as a separate undertaking and if one or more of the undertakings contained in the Terms is found to be unenforceable or in any way unreasonable, the remaining undertakings shall continue to bind the parties. To the extent possible in any jurisdiction to which the Terms may apply or in which the Terms may be enforced, if any undertaking contained in the Terms is found to be void but would be valid if the period of application thereof were reduced or if some part of the undertaking were deleted, the undertaking in question shall apply with such modification as may be necessary to make it valid and effective.
Cumulative Rights and Remedies: The rights and remedies of the parties under the Terms are cumulative and in addition to any rights and remedies provided by law.