1. DEFINITIONS AND INTERPRETATION

In these Terms, the following words shall have the meanings assigned to them:

1.1. "Agency" means Handmade Media (Pty) Ltd (Reg: 2014/116901/07), a private company duly incorporated in the Republic of South Africa.

1.2. "Agreement" means the collective legal relationship between the Parties, comprising these Terms, any signed Proposal, and any Service Level Agreement (SLA).

1.3. "Agency Tools" means any proprietary frameworks, software code, UI/UX libraries, brand guide templates, or methodologies owned or developed by the Agency prior to or independently of the Services.

1.4. "Business Day" means any day other than a Saturday, Sunday, or official public holiday in the Republic of South Africa.

1.5. "Client" means the entity or person identified in the Proposal to whom the Agency is providing Services.

1.6. "Confidential Information" means any information disclosed by one Party to the other which is designated as confidential or which by its nature ought to be considered confidential, including trade secrets and client lists.

1.7. "CPA" means the Consumer Protection Act, No. 68 of 2008.

1.8. "Deliverables" means the specific outputs to be produced by the Agency as set out in the Proposal (e.g., a website, a video, a social media strategy).

1.9. "Effective Date" means the date of signature of the Proposal or the date on which the Agency commences work, whichever occurs first.

1.10. "Fees" means the amounts payable by the Client to the Agency as consideration for the Services, as set out in the Proposal or Invoice.

1.11. "Intellectual Property Rights" means all patents, copyrights, trademarks, design rights, and other intellectual property rights (whether registered or unregistered).

1.12. "Operator" has the meaning assigned to it in Section 1 of POPIA.

1.13. "Parties" means the Agency and the Client, and "Party" shall mean either one of them.

1.14. "Personal Information" has the meaning assigned to it in Section 1 of POPIA.

1.15. "POPIA" means the Protection of Personal Information Act, No. 4 of 2013.

1.16. "Proposal" means the document (which may be titled an Estimate, Quote, or Scope of Work) issued by the Agency and accepted by the Client.

1.17. "Responsible Party" has the meaning assigned to it in Section 1 of POPIA.

1.18. "Services" means the marketing, creative, digital, and consulting services provided by the Agency to the Client.

1.19. "Sign-off" means the written or electronic approval (including email) by the Client of a Deliverable or a stage of the project.

1.20. "Source Material" means the raw, unedited, or layered files (e.g., raw video footage, Figma files, code repositories, layered AI/PSD files) used to create the Final Deliverable.

1.21. "Third-Party Services" means services provided by third parties including, but not limited to, Google Ads, Meta, hosting providers, or software plugin developers.

1.22. "VAT" means Value Added Tax as levied in terms of the Value Added Tax Act, No. 89 of 1991.

 

2. APPOINTMENT AND SCOPE

2.1. The Client appoints the Agency as its marketing and creative services provider for the Services defined in the Proposal.

2.2. These Terms apply to all future Proposals unless expressly superseded by a newer version in writing.

2.3. Scope Creep: Any request for work outside the defined Proposal will be quoted separately. The Agency is not obliged to commence "out of scope" work until a revised Estimate is approved.

 

3. FEES AND PAYMENT TERMS

3.1. Upfront Payment: Unless otherwise specified in a Proposal, 100% of the Fees are payable upfront upon acceptance of the Proposal.

3.2. Milestones: For large-scale projects, the Parties may agree to a milestone-based payment schedule in writing.

3.3. Suspension of Services: If any payment is overdue, the Agency may, without prejudice to its other rights, suspend all Services (including taking websites offline or pausing active ad campaigns). The Agency is not liable for any consequential loss, including loss of traffic or revenue, during such suspension.

3.4. Currency: Payments must be made in the currency specified in the Proposal, free of bank charges or set-off.

 

4. INTELLECTUAL PROPERTY & USAGE RIGHTS

4.1. Transfer of Ownership: Ownership of the final, flattened/exported Deliverables passes to the Client only upon receipt of full and final payment of all Fees.

4.2. Retention of Source Material: The Agency remains the sole owner of all Source Material (including Figma files, layered AI/PSD files, and raw video rushes). The Agency is not required to provide Source Material to the Client unless a specific "Release Fee" is agreed upon in writing.

4.3. Agency IP: All Agency Tools remain the exclusive property of the Agency. The Client is granted a non-exclusive, non-transferable license to use any Agency Tools embedded within a Deliverable solely for the purpose for which that Deliverable was created.

4.4. Third-Party Licenses: The Client is responsible for the cost of any third-party licenses (stock images, fonts, plugins). If the Client provides assets, they warrant they have the necessary rights to use them.

 

5. DIGITAL MARKETING & AD SPEND

5.1. Mandatary Capacity: The Agency acts as a mandatary for the Client regarding Third-Party Services (Meta, Google, etc.).

5.2. Pre-payment of Ad Spend: The Agency will only deploy ad spend once the funds have cleared in the Agency’s bank account.

5.3. Performance Disclaimer: The Agency does not guarantee specific conversion rates or ROI, as these are influenced by third-party algorithms and market conditions beyond the Agency’s control.

5.4. Account Ownership: Unless otherwise agreed, the Client shall own the ad accounts, but the Agency shall maintain administrative access for the duration of the Services.

 

6. REGULATORY COMPLIANCE & CLIENT WARRANTIES

6.1. Regulated Sectors: For Clients in the Insurance, Auditing, or Pet Food sectors, the Client warrants that all marketing claims have been vetted by their internal compliance or legal teams.

6.2. Final Approval: The Client’s Sign-off on any copy or design constitutes a warranty that the content is accurate and compliant with all industry-specific statutes (e.g., FSCA, ARB, or Department of Agriculture guidelines).

6.3. Indemnity: The Client indemnifies the Agency against any claims, fines, or legal costs arising from a breach of statutory regulations related to the Client’s industry.

 

7. WEBSITE DEVELOPMENT & UAT

7.1. Testing: Upon completion of a build, the Agency will provide a testing environment. The Client has 5 (five) business days to perform User Acceptance Testing (UAT).

7.2. Go-Live: Once the Client provides Sign-off or requests the site to go "live," the site is deemed accepted.

7.3. Warranty: The Agency provides a 30-day warranty post-launch to fix "bugs" (functionality not working as per the original Proposal). This warranty excludes new feature requests or issues caused by the Client’s own edits.

 

8. CANCELLATION AND POSTPONEMENT

8.1. Project Cancellation: If the Client cancels a project after payment but before completion, the Agency shall be entitled to retain a portion of the Fees commensurate with the work completed and resources allocated, with a minimum cancellation fee of 25% of the total project value.

8.2. Production Postponement: If a content creation shoot is postponed by the Client with less than 48 hours' notice, a postponement fee of 50% of the production day-rate will apply.

 

9. DATA PRIVACY (POPIA & GDPR)

9.1. Operator Status: The Agency acts as an Operator and the Client as the Responsible Party.

9.2. Data Processing: The Agency will process Personal Information only to perform the Services and will implement security measures as required by Section 19 of POPIA.

9.3. Cross-Border Transfers: The Client consents to the transfer of data to sub-processors in the UK, USA, and Cayman Islands, provided such transfers meet the requirements of Section 72 of POPIA.

 

10. NON-SOLICITATION

10.1. The Client shall not, during the term of this Agreement and for 12 months thereafter, solicit or employ any employee or regular freelancer of the Agency.

10.2. Penalty: Should the Client breach this clause, they shall pay the Agency a recruitment fee equal to 30% of the individual’s new annual gross remuneration.

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11. LIMITATION OF LIABILITY

11.1. To the maximum extent permitted by the CPA, the Agency’s total liability for any claim is limited to the Fees actually paid by the Client for the specific Service giving rise to the claim.

11.2. The Agency is not liable for indirect or consequential damages, or for failures of Third-Party Services (e.g., hosting outages, social media platform bans).

 

12. BREACH AND TERMINATION

12.1. Either Party may terminate this Agreement if the other Party breaches a material term and fails to remedy it within 7 (seven) business days of written notice.

12.2. Upon termination, all Fees for work-in-progress become immediately due and payable.

 

13. GENERAL PROVISIONS

13.1. Domicilium: The Parties choose their respective addresses in the Proposal as their address for legal service (domicilium citandi et executandi).

13.2. Whole Agreement: This document, together with the Proposal, constitutes the entire agreement between the Parties. No variation is valid unless in writing and signed by both Parties.

13.3. Jurisdiction: This Agreement is governed by the laws of the Republic of South Africa.