3RD FLOOR TERMS AND CONDITIONS
1: ACCEPTANCE AND BINDING AGREEMENT
- By accepting 3RDFLOOR’s quotation and throughout the Client’s use of 3RDFLOOR’s services, the Client agrees to be bound unconditionally by these terms and conditions. If the Client does not agree to be bound by these terms and conditions, it must immediately stop using any of 3RDFLOOR’s services.
- These terms and conditions may be amended by 3RDFLOOR at any time. Any services rendered after the date of amendment will be subject to the amended terms and conditions and binding on the Client without further notice.
- The Client acknowledges that no warranties or representations were made by 3RDFLOOR, its employees or any of its other duly authorised representatives regarding its services or any of the features or qualities of such services on or before accepting these terms and conditions
2: INTERPRETATION AND DEFINITIONS
For the purposes of these terms and conditions:
- “Client Material” means any intellectual property, information or documentation provided or made available by the Client to 3RDFLOOR;
- “confidential information’’ means any proprietary and non-public information belonging to a party which has been or may be disclosed to or obtained by the other party before or during their working relationship, whether such information is in writing or was obtained pursuant to discussions, and includes any intellectual property; underlying works; business, marketing or financial data; know-how and trade secrets; strategies; designs; plans; specifications; reports; customer lists; price lists; studies or findings; computer software and code; databases; inventions; ideas; employee information; information about business partners, suppliers and service providers; or any material which contains or is generated from any such confidential information.
- “consequential loss” means, in relation to a breach of these terms and conditions, any indirect loss or special damages resulting from such breach, including but not limited to loss of data, loss of profit, loss of revenue, loss of contractual opportunities, or loss of goodwill, regardless of whether or not the party committing the breach knew or ought to have known that such loss or damages would be likely to be suffered as a result of their breach;
- “End Product” means a defined end product to be created and produced by 3RDFLOOR in the media chosen by the Client as part of or pursuant to the services provided by 3RDFLOOR;
- “intellectual property” means rights to or in any patents, designs, copyrights, database rights, trade secrets, know-how, confidential information, trademarks (whether registered or unregistered), company names, trade names, domain names; or any other rights, licences, or pending applications for the registration of any such rights anywhere in the world, which are owned and/or held by a party;
- ‘’pre-existing intellectual property’’ means any intellectual property which 3RDFLOOR owns or otherwise has rights in and which may be used to provide the services and/or produce an End Product;
- “prime rate” means the rate of interest charged by First National Back on overdraft facilities offered to its private clients;
- ‘’underlying work’’ means any component, part or element included in or used to produce the End Product, which includes but is not limited to any drawing, module, composite, character, dialogue, effect, function, hint, icon, image, layout, overlay, palette, rough, scene, script, sequence, sound, storyboard, symbol, template, underlay, vector or working, film, concept, treatment, shot list, footage, audio recording, editing file, project file or colour grade;
- 3RDFLOOR will provide services to the Client in accordance with the briefs given to 3RDFLOOR by the Client from time to time.
- The Client’s briefs must be recorded in writing and must clearly set out the Client’s requirements and expectations for the services to be provided or End Product to be delivered by 3RDFLOOR.
- Any changes to the Client’s brief must be confirmed in writing, including any changes to the nature, scope and timing of the services to be provided or any previously agreed pricing.
- The Client must make sure that all Client Material given to 3RDFLOOR as part of its brief or otherwise is correct and accurate.
- 3RDFLOOR may sub-contract or delegate its obligations to a suitable subcontractor, provided that 3RDFLOOR will remain liable for the performance of such subcontractor.
- 3RDFLOOR will not be liable for any loss or inconvenience suffered by the Client as a result of any delay in providing services where such delay is caused by:
- the Client not providing the Client Material required by 3RDFLOOR timeously or at all; or
- the Client changing its brief or any instructions and/or decisions previously communicated to 3RDFLOOR; or
- the client failing to pay any amount owing to 3RDFLOOR or otherwise committing any breach of its other obligations; or
- the failure of a contractor nominated by the Client to deliver any service, good or licence required for the performance of 3RDFLOOR’s services.
- Any changes to the pricing previously agreed to by the parties which is caused by a delay which is outside the control of 3RDFLOOR will be for the Client’s account.
4: FEES AND PAYMENT
- All quotations issued by 3RDFLOOR will be valid for 30 days. After a quotation has been signed and accepted by the Client, any additional work or services required by the Client will be quoted and charged for separately.
- All fees quoted by 3RDFLOOR will be exclusive of Value Added Tax (VAT) and/or any third party disbursements or expenses incurred by 3RDFLOOR on the Client’s behalf.
- All amounts due to 3RDFLOOR must be paid by the Client within 14 days of being invoiced.
- All payments must be made by electronic fund transfer (EFT) into 3RDFLOOR’s designated bank account and will only be deemed to have been received once they reflect in the account.
- If the Client fails and/or refuses to pay any amount which is due and payable to 3RDFLOOR on due date, then 3RDFLOOR will be entitled to:
- Immediately suspend or stop providing any further services to the Client;
- Charge interest on the overdue amount at the prime rate from the date that payment was due to the date payment is finally made, both days included. Such interest will be calculated daily and compounded monthly during the period that payment remains due.
5:INTELLECTUAL PROPERTY OWNERSHIP
- Pre-existing intellectual property. All intellectual property which is owned by 3RDFLOOR or in which 3RDFLOOR has rights, including any underlying works, will remain the sole property of 3RDFLOOR and no rights or licences to use such pre-existing property will be conferred on the Client unless expressly agreed in writing.
- Client Materials. All intellectual property in the Client Materials which is owned by the Client or in which the Client has rights, will remain the sole property of the Client. The Client hereby grants 3RDFLOOR a non-exclusive, worldwide, royalty-free licence to use, copy or adapt the Client Materials for the purposes of providing services or delivering an End Product to the Client.
- New intellectual property. Unless otherwise agreed in writing between the parties, all intellectual property created by 3RDFLOOR or any employee, agent or subcontractor of the Service Provider in the course of providing the services or producing the End Product for the Client, including any underlying works, will vest in 3RDFLOOR upon creation. It is expressly acknowledged and understood by the Client that, upon payment of all amounts due to 3RDFLOOR for any services provided or End Product produced, the Client will enjoy a non-exclusive, worldwide, perpetual licence to use the End Product and underlying works for the agreed purposes recorded in the Client’s brief, and for no other purpose and in no other media without the prior written consent of 3RDFLOOR.
- IP warranty and indemnity. Both parties warrant that no aspect of any intellectual property created, licenced or provided by either of them in connection with any services, End Products, underlying works, or Client Materials under this agreement will infringe any intellectual property rights or other proprietary rights of any third party. Each party indemnifies the other, at its own cost, against any costs, damages and attorney fees finally awarded in any legal proceeding arising from any claim for the infringement of any third party intellectual property rights, provided that the indemnified party notifies the indemnifying party of such claim within 10 (ten) days of obtaining knowledge of it.
The Client consents to 3RDFLOOR using its name, trademarks and a description of the services provided under this agreement in any marketing material or proposals which 3RDFLOOR may wish to submit or distribute.
7: LIMITATION OF LIABILITY
- No party will ever be liable, whether in contract, delict or otherwise, for any consequential loss arising from any breach of these terms and conditions.
- 3RDFLOOR’s total liability for any direct damages or loss, whether in contract, delict or otherwise, arising from the provision of any services or the delivery of any End Product to the Client, will never exceed, in aggregate, the total amount of fees payable to 3RDFLOOR by the Client for such services or End Product.
8: GENERAL PROVISIONS
- The agreement constituted by these terms and conditions is the entire agreement between the parties.
- No amendment or consensual cancellation of these terms and conditions and no settlement of any disputes, extension of time, waiver or relaxation or suspension of any of these terms and conditions will be binding unless recorded in writing and signed by both parties.
- If any term or condition contained herein becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, the legality, validity or enforceability of the remaining terms and conditions will be affected or impaired.
- These terms and conditions are governed by the laws of the Republic of South Africa. Both parties consent and submit to the jurisdiction of any Magistrates Court having jurisdiction over their person for the purposes of any legal proceedings arising from or in connection with these terms and conditions.
- Should it be necessary for 3RDFLOOR to institute action against the Client for any reason, and in so doing, 3RDFLOOR incurs legal costs, then the Client shall be liable to 3RDFLOOR for all such legal costs on the attorney-and-client scale (including collection fees and VAT).
- The signatory to these terms and conditions warrants that he is duly authorised by the Client to act on its behalf in signing same and should he not have such authority then, without prejudice to such rights as 3RDFLOOR may have at law, the signatory shall be held personally bound to this agreement.