TERMS OF ENGAGEMENT OF NICEWORK SERVICES
This document, read alongside any Nicework Proposal, sets out the terms and conditions upon which Nice Work Communications CC, with registration number Registration Number CK 2003/096998/23 of Office 1.1 Workshop17, Heritage Site, 16 Baker Street, Firestation, Rosebank, Johannesburg, 2196 (“Nicework”) has agreed to provide its services to you, as the Client (“the Terms”). Your mere receipt of this document and/or acceptance of any Nicework quotation or service indicates your explicit and/or tacit acceptance of the terms of engagement listed below, and any project Proposal conditions expressly provided to you from time to time.
Terms are not necessarily defined in order.
1. THE SERVICES
Nicework will provide its services, and those of its contracted third-party service providers to the Client, based on the brief provided by the Client verbally and in written correspondence, and confirmed in the Nicework Proposal completed in collaboration with the Client (“the Services”).
1.1. Once Nicework has been engaged by the Client to provide the Services, Nicework will pitch concepts to the Client and present a proposal to the Client to outline the general timeline for any rounds of edits and general production required to provide the Services as pitched, as well as any project-specific details including price, exact Services to be rendered and final delivery formats (“Proposal”).
1.2. The Services will include a Proposal phase and various presentations before a final product is presented to the Client (“Product”). Once a Product is, or is deemed to be, accepted and only after full and final payment of any fees due to Nicework by the Client have been paid, the Services will be rendered and complete, and ownership of, and any rights to/over, any Product, or any data or material produced pursuant to the final Product’s completion, will pass to the Client.
1.3.The Client understands that Nicework 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 and adhere to the Proposal. Failure or delay by the Client in providing this action or information will lead to delays in provision of the Services and Proposal, for which Nicework will not be liable.
2. RELATIONSHIP BETWEEN THE PARTIES
2.1. Nicework 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. Nicework shall not, by reason of the actions of any of the other parties in the Production, incur any personal liability as co-partner to any third party.
3. PROPOSAL PHASE
3.1. Once Nicework has been engaged by the Client, but before the Services commence, Nicework and the Client will meet or correspond to discuss their engagement, the Services, and complete the Proposal.
3.2. Whilst a Proposal is included as a part of the pre-production cost detailed in a Nicework invoice, Nicework reserves the right to nevertheless distinctly and separately charge the Client for a Proposal, and is subject to clause 3.6 below. Any additional Proposal/s may incur a charge, which charge shall be communicated by Nicework to the Client at the relevant juncture, and reflected on a relevant Nicework invoice.
3.3. Once the Proposal has been accepted by the Client, and all necessary information completed in a Proposal, Nicework will provide a quote to the Client for the envisaged Services. Same quote, or the associated correspondence to the quote, may include:
3.3.1. a summary page/s detailing the overall charges to the Client for the Services;
3.3.2. a subsequent line-item breakdown of each cost incurred for the Services;
3.3.3. any further additional costs which are stated and accepted in a project Proposal and
3.3.4. an outline of future phases that will be scoped and costed separately.
3.4. The parties understand that in order to successfully pitch for a job, Nicework will need to provide the Client with certain ideas in respect of the Services.
3.5. Before all such rights to a Product are transferred to the Client upon full payment of any Service Fee due to Nicework for Services completely rendered, the Client understands that all these ideas, products, plans and/or any intellectual property utilised pursuant and part of a pitch, Proposal or delivery of the (unfinished work too) final work, are the intellectual property of Nicework and that the Client will have no right whatsoever to use or claim any of these ideas without Nicework’s express, written, prior permission. The Client further understands that by breaching this clause 3.5, it will cause direct financial damage to Nicework. As such, Nicework reserves the right to claim damages, amongst other remedies, from the Client, should the Client fail to adhere to this provision.
3.6. The Client understands that Nicework spends a reasonable amount of time on proposing for a job. If Nicework puts in any additional time on preparation of an additional proposals on the instruction of the Client and in the belief that its pitch will be accepted, Nicework reserves the right to charge the Client an hourly rate of R960.00 (nine hundred and sixty Rand) for such additional time, should the pitch not subsequently be accepted. The amount of additional time will be determined in Nicework’s sole discretion.
4. PRESENTATION OF THE PRODUCT
4.1. Once the Services have commenced, and before the Product is delivered to the Client, Nicework may present two (2) preliminary edits/cuts/versions of the Product to the Client as part of the Services to the Client according to the following procedure:
4.2. once the Services have commenced, Nicework will present the first edit/cut/version of the Product to the Client on the date detailed in the relevant Proposal, or as agreed to between the parties in written correspondence (“the first presentation”);
4.3. Nicework will then alter the Product, based on and in accordance with the Client’s feedback from the first presentation and present the updated Product to the Client on the date detailed in the relevant Proposal, or as agreed to between the parties in written correspondence (“the second presentation”); and
4.4. Nicework will then alter the Product, based on and in accordance with the Client’s feedback from the second presentation and will then finalise the Product and present it back to the Client as the final Product and on the date detailed in the relevant Proposal, or as agreed to between the parties in written correspondence.
4.5. Should the Client require further amendments to the final Product after the final presentation, or require further rounds of edits before final presentation, and this arrangement is agreed to in writing between the parties, Nicework may, in its sole discretion, charge an additional fee to the Service Fee, with same fees to be detailed in the final invoice delivered to the Client in respect of the Services, or in an additional invoice, as the case may be, which the Client shall be liable to pay.
4.6. The final presentation of the Product created by Nicework will be considered accepted and completed, and the Services fully rendered, if the Client has not requested any additional alterations within 10 (ten) business days upon receipt of the Product from Nicework.
5. GENERAL OBLIGATIONS OF THE CLIENT
5.1 The Client undertakes to Nicework, in relation to the Services that it will:
5.1.1. pay each invoice issued in terms of clause 7 timeously and in full;
5.1.2. provide the contact details of an employee with decision-making authority who will attend to all correspondence from Nicework;
5.1.3. provide Nicework with clear, timeous and reasonable instructions and directions where necessary;
5.1.4. where required to give its consent or approval, that consent or approval shall not be unreasonably withheld or delayed; and
5.1.5. 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 Nicework.
6. PAYMENT TERMS
6.1. Nicework will charge a fee for the Services. This fee, including any necessary disbursements or additional costs as detailed in a project Proposal, is detailed in the quote and subsequent related invoice/s (“Service Fee”).
6.1.1. Once the quote has been accepted by the Client, and invoice delivered to the Client for payment thereof, the Client will pay Nicework as follows:
6.1.2. a non-refundable deposit of 50% (fifty percent) of the Service Fee will be paid to Nicework upon acceptance of the invoice by the Client (“the Deposit”); and
6.2. the remainder of the Service Fee and any additional costs or disbursements necessary for provision of the Services will be paid on presentation of the final invoice reflecting the total balance due to Nicework once the Services have been fully rendered.
6.3. The Deposit paid by Client to Nicework may, in certain situations, be refunded to the Client, but entirely in Nicework’s sole discretion. If the Terms are terminated, Nicework will use the Deposit to pay for any costs already incurred pursuant to its rendering the Services, and will refund the remainder of the Deposit amount to the Client, if any Deposit funds are remaining after Nicework’s deductions described herein.
6.4. The Service Fee does not include any import/export fees, collection/release charges, international taxes or other incidental fees which may arise directly as a result of Nicework’s provision of the Services. These additional costs will be for the Client’s account.
6.5. The Service Fee is subject to change, should the Proposal be altered in any way after commencement. In the event that disbursements require upfront payment, the Client will be required to pay the costs before Nicework carries out the additional services. If the Client does not accept the new quote, Nicework is not obliged to carry out the additional services, but both parties will endeavour to find a mutually beneficial solution as soon as possible.
7. INVOICE PROCEDURE
7.1. Once the Proposal has been accepted by the Client, Nicework will provide the Client with a quote for the Service Fee.
7.2. Once the Client has accepted the quote in writing, Nicework will subsequently provide the Client with an invoice detailing the Service Fee.
7.3. Payment of the invoice is as per clause 6 above.
7.4. Nicework shall furnish the Client with an invoice for each payment of the Service Fee, being an invoice for the Deposit amount, and a final invoice reflecting the final balance of the Service Fee and any additional costs due on completion of the Services. Invoices will reflect the Service Fee and any disbursements, exclusive of Value Added Tax, where applicable.
7.5. Invoices are due and payable on receipt, and within 30 (thirty) calendar days to avoid the charging of interest.
7.6. All invoices shall be paid free of exchange, bank fees or set off, by the Client into Nicework’s South African bank account nominated in writing for that purpose.
7.7. Nicework reserves the right to suspend the Services in its sole discretion should any payment be delayed.
7.8. Should an invoice remain unpaid for more than 30 (thirty) calendar days, interest may be charged, in Nicework’s sole discretion, on any outstanding amounts at a rate equal to the South African published prime overdraft rate plus 1 (one) percent, compounded monthly, in arrears. The Client undertakes to pay any such interest along with the Service Fee, where necessary.
7.9. 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.
8. PROPOSAL CANCELLATION OR VARIATION BY CLIENT
8.1. Should the Client wish to vary or cancel the Services, the following will occur:
8.2.1. the Client and Nicework will consult and agree on any variations, distinct from those associated with a Pitch or first or second presentations, in writing, thereafter any changes to the Service Fee incurred as a result thereof, will be quoted by Nicework, and after acceptance thereof by the Client, be reflected in the update first or final invoice;
8.3.1. the Client must give to Nicework 10 (ten) calendar days written notice of its intention to cancel the Services performed for specific project work, or 30 (thirty) calendar days written notice of its intention to cancel the Services for retainer work;
8.3.2. thereafter, Nicework shall provide the Client with a final invoice which will cover all expenses, disbursements or Services already incurred or provided by Nicework prior to the date of termination. The Client understands that the final invoice will include any reasonable loss Nicework has suffered from cancellation with its third-party suppliers or from the cancellation of the Services generally;
8.3.3. Nicework 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 Nicework within 7 (seven) calendar days of receiving an invoice; and
8.3.4. the parties will hand over to the other party any document, film, storyboard, hard-drives, property (physical or intellectual), equipment or confidential information belonging to that party.
8.4. Should the Client advance or postpone the Services pursuant to a Proposal for any reason, including bad weather or availability of location, such advancement or postponement must be carried out at a time convenient to Nicework.
9. TERMINATION BY NICEWORK
9.1 Nicework may terminate their participation with these Terms and their provision of the Services in the following situations:
9.1.1 by providing the Client with 30 (thirty) calendar days’ written notice of its intention to cancel the provision of the Services and its adherence to these Terms;
1.1.2 by mutual written agreement with the Client; or
1.1.3 if it becomes entitled to cancel the provision of its Services and its adherence with these Terms, as per clause 15, pursuant to an un-remedied breach of these Terms.
9.2 Upon termination by Nicework for any reason:
9.2.1 both parties will remove and delete all intellectual property of the other party’s which may be in its possession, or return it to the rightful owner thereof, as the case may be;
9.2.2 hand over any partially finished work or working files; and
9.2.3 neither party will represent itself as being affiliated with the other.
10. OWNERSHIP OF THE PRODUCT AND WORK PURSUANT THERETO
10.1. All ownership and copyright in the final Product will remain Nicework’s sole property until full and final payment has been made by the Client. Nicework reserves the right to revoke any permission given to the Client to use the Product, if payment is not made in full, including, but not limited to, the use of watermarks or other similar tools on the Product.
10.2. Nicework will deliver the Product in the final format as specified in the Proposal. Working files of the Product remain the property of Nicework but may be released for an agreed fee. Concept work and alternative-route work presented, but not selected and finalised, remain the property of Nicework unless otherwise specified.
10.3. Once final payment has been made and the Services completed, the use of watermarks or other similar tools on the Product will be removed, and ownership of the Product shall transfer to the Client.
10.4. Notwithstanding the above and unless otherwise agreed between the parties in a Proposal or in writing expressly for this purpose, Nicework may use, in perpetuity, any part of the Product for its own promotional or marketing purposes in any medium or public space (specifically including its website, social media platforms, case studies, presentations, award entries and printed materials).
10.5. It is the responsibility of the Client to inform Nicework if any of the Product is legally confidential, has an embargo, or will have a detrimental effect on the Client if used by Nicework for promotional or marketing purposes. Further to this, the Client indemnifies Nicework against any claim brought against Nicework on the basis that the Client failed to notify Nicework on the above information as required.
10.6. The Client will have no rights, title or interest to any of the contact details, information or database of contacts which Nicework utilizes in providing the Services. Nicework’s database of contacts, media and suppliers will at all times remain the intellectual property of Nicework and the Client cannot request Nicework to hand over such details, regardless of whether one of these contacts assisted in provision of the Services.
11. STORAGE OF PRODUCT FILES
11.1. Nicework shall retain and store any Product content files and related process files for a period of 12 months from the date of completion of the Services. Should the Client require Nicework to retain the files for a longer period, it must be agreed upon subject to an additional storage fee.
11.2. The Client stores any files and/or content with Nicework completely at its own risk. The Client understands that Nicework shall not be held responsible for any stolen, corrupted or damaged files in its possession.
12. CREDIT FOR THE SERVICES
12.1. Unless otherwise expressly agreed to in writing between the parties, or as per the relevant Proposal, Nicework must be credited in any use of the Product in public spaces and on broadcast media, including but not limited to the Client’s website, any social media platform, blog posts and third-party media coverage.
13.1. The Client agrees that it will not directly contact or attempt to contact any of Nicework’s suppliers, employees or sub-contractors (“suppliers”) or in any way attempt to circumvent Nicework by procuring any item or service in respect of the Services directly from any of the suppliers for a period of 12 months after the completion of the Services.
13.2. The Client understands that any breach of this provision, or any attempt to contract any of Nicework’s suppliers directly, will cause financial damage to Nicework. In the event of a breach of clause 13.1 and notwithstanding Nicework’s other remedies in law, the Client will pay Nicework a referral fee of 50% (fifty percent) of the total fee paid to the supplier.
13.3. Nicework is under no obligation to produce the original invoice received from its suppliers as Nicework has ongoing relationships with its suppliers, and consequentially has procured special rates at which it sources products and services. Further, the Client understands that Nicework is under no obligation to limit the amount by which it marks up the products or services it procures in providing the Services.
14. LIABILITY AND INDEMNIFICATION
14.1. 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.
14.2. Apart from instances of dishonesty or gross negligence, Nicework will not be liable for loss, damage or delay, including loss of profits and consequential loss, suffered by the Client as a result of Nicework’s 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.
14.3. The Client agrees to hold harmless and indemnify Nicework 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 Nicework of the services of any third-party suppliers, intellectual property rights or in the course of providing the Services.
14.4. Nicework will attempt to make good any errors to a reasonable degree, but reserves the right to charge for such additional work should the scope require it, as provide for in these Terms.
15.1. 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:
15.1.1. 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
15.1.2. 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.
15.2. The cancellation of the Terms by the innocent party in the circumstances contemplated in clause 15.1 shall be without prejudice to any other rights or remedies the innocent party may have in law (including the right to claim damages).
15.3. In the event of cancellation of the Terms in the circumstances contemplated in clause 15, written notice of any such cancellation shall be given and such cancellation shall take effect on the giving of such notice.
15.4. No such cancellation of the Services shall have any effect or consequence on the duty of the Client to pay to Nicework any amount of money due to it at the time of cancellation.
16. FORCE MAJEURE
16.1. 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, government order, load-shedding, riot, revolution, equipment failure, outbreak of epidemic diseases or any other cause beyond the reasonable control of the parties. Any advancement or postponement caused to the Services from such, must be managed in a way convenient to both parties.
17.1. 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.
18. DISPUTE RESOLUTION
18.1. Should any dispute, disagreement or claim (“dispute”) arise between the Client and Nicework 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.
18.2. 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 Nicework.
18.3. Notwithstanding the above, both parties retain all of the general rights as provided for under applicable national legislation.
18.4. The parties both agree that in no circumstance will either party publicize the dispute on any media platform, including social media platforms. 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.
19. NOTICES AND DOMICILIA
19.1. Each of the parties choose domicilium citandi et executandi (“domicilium”) 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 a Proposal, from time to time. Any notice or service sent by e-mail to its chosen e-mail address stipulated, shall be deemed to have been received on the date of despatch (unless the contrary is proved).
19.2. Notwithstanding anything to the contrary herein contained a written notice or communication actually received by a party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen domicilium.
20.1. 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.
20.2. 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. These Terms and the associated Proposal created between the parties, 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.
20.3. 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.
20.4. 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.
20.5. 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.
20.6. 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.
20.7. 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.
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