1.1
Bashwax will provide its services based on the Brief provided by the Client verbally and in written correspondence (“the Services”). From the Services, Bashwax will create a final version of a product (“the Product”).
1.2
Once the quote has been accepted and the Deposit has been paid by the Client, Bashwax will begin providing the Services and present a production schedule to the Client to outline the general timeline for any rounds of revisions and general production (“Production Schedule”).
1.3
The Client understands that Bashwax 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 Production Schedule. Failure or delay by the Client in providing this action or information will lead to delays in provision of the Services and Production Schedule, for which Bashwax will not be liable.
Bashwax 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. Bashwax shall not, by reason of the actions of any of the other parties, incur any personal liability as co-partner to any third party.
3.1
Before the Services commence, Bashwax and the Client will meet or correspond to discuss their engagement, the Services, and complete any production-specific information in the quote (“Brief”).
3.2
The Client understands that any ideas which Bashwax presents in the Brief and the surrounding discussions are the intellectual property of Bashwax and that it will have no right whatsoever to use or disclose any of these ideas without Bashwax’s express prior written permission. The Client further understands that by breaching this clause 3.2, it will cause direct financial damage to Bashwax. As such, Bashwax reserves the right to claim damages, amongst other remedies, from the Client, should the Client fail to adhere to this provision.
4.1
Prior to the final Product being delivered to the Client, Bashwax will present the number of preliminary edits/cuts of the Product to the Client as detailed in the quote. For each presentation by Bashwax, the Client will provide feedback and thereafter Bashwax will alter the preliminary edits/cuts of the Product based on the Client’s feedback in alignment with the brief.
4.2
Should the Client require further amendments to the Product after the final presentation, Bashwax may, in its sole discretion, charge an additional fee to the Service Fee. The additional fee will be communicated to the Client in advance.
4.3
A presentation of the preliminary Product created by Bashwax 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 on the quote.
5.1
Bashwax will deliver the final Product/s to the Client in digital form.
5.2
Once the Client has taken delivery of the Product/s, Bashwax shall store the Product/s internally for 12 (twelve) months after delivery of the Product/s. Thereafter, Bashwax has no obligation to store the work further.
4.3
A presentation of the preliminary Product created by Bashwax 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 on the quote.
The Client undertakes to Bashwax, in relation to the Services that it will:
6.1
pay each invoice issued in terms of clause 6 timeously and in full;
6.2
provide the contact details of an employee with decision-making authority who will attend to all correspondence from Bashwax;
6.3
provide Bashwax with clear, timeous, and reasonable instructions and directions where necessary;
6.4
uses the Product for the purpose for which it was created, and complies with any laws or regulations in force where the Product is used; and
6.5
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 Bashwax.
Service fee:
7.1
pay each invoice issued in terms of clause 6 timeously and in full;
7.2
Once the quote has been accepted by the Client, and the invoice has been delivered to the Client for payment thereof, the Client will pay Bashwax as follows:
7.2.1a 50% (fifty percent) non-refundable deposit of the Service Fee will be paid to Bashwax upon acceptance of the invoice by the Client (“the Deposit”); ande will be paid to Bashwax upon acceptance of the invoice by the Client (“the Deposit”); and rutrum lorem imperdiet. Nunc ut sem vitae risus tristique posuere.
the remainder of the Service Fee and any additional costs or disbursements necessary for the provision of the Services will be paid on presentation of an invoice for the completed Product.
7.3
Invoices will reflect the Service Fee and any additional disbursements or costs, inclusive of Value Added Tax, where applicable.
7.4
Invoices will be paid free of exchange, bank fees or set off, by the Client into Bashwax’s South African bank account nominated in writing for that purpose, or as displayed on an invoice.
Variations
7.5
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. Bashwax 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, Bashwax is not obliged to carry out any additional services.
Payment Delays
7.6
Bashwax reserves the right to suspend the Services in its sole discretion should any payment be delayed.
7.7
Should an invoice remain unpaid for more than 30 (thirty) 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.
7.8
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.
Service fee:
7.1
pay each invoice issued in terms of clause 6 timeously and in full;
7.2
Once the quote has been accepted by the Client, and the invoice has been delivered to the Client for payment thereof, the Client will pay Bashwax as follows:
7.2.1a 50% (fifty percent) non-refundable deposit of the Service Fee will be paid to Bashwax upon acceptance of the invoice by the Client (“the Deposit”); ande will be paid to Bashwax upon acceptance of the invoice by the Client (“the Deposit”); and rutrum lorem imperdiet. Nunc ut sem vitae risus tristique posuere.
the remainder of the Service Fee and any additional costs or disbursements necessary for the provision of the Services will be paid on presentation of an invoice for the completed Product.
7.3
Invoices will reflect the Service Fee and any additional disbursements or costs, inclusive of Value Added Tax, where applicable.
7.4
Invoices will be paid free of exchange, bank fees or set off, by the Client into Bashwax’s South African bank account nominated in writing for that purpose, or as displayed on an invoice.
Variations
7.5
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. Bashwax 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, Bashwax is not obliged to carry out any additional services.
Payment Delays
7.6
Bashwax reserves the right to suspend the Services in its sole discretion should any payment be delayed.
7.7
Should an invoice remain unpaid for more than 30 (thirty) 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.
7.8
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.
8.1
All ownership and copyright in the final presentation of the Product created out of the Services for the Client, shall remain property of Bashwax until full and final payment is made by the Client.
8.2
Notwithstanding the above and unless otherwise agreed between the parties in writing, Bashwax 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 Bashwax if any part of the Product is confidential or will have a detrimental effect on the Client if used by Bashwax for promotional or marketing purposes.
8.3
The Client will have no rights, title, or interest to any of the working files, styles and methodology used by Bashwax to create the Product/s for the Client. Bashwax’s working files, styles, and methodology used will, at all times, remain the intellectual property of Bashwax and the Client cannot request Bashwax to hand over such working files, styles, and/or methodology. The Client may obtain working files for their projects from Bashwax at an additional cost.
Suppliers
9.1
Unless there has been prior agreement in writing between the parties, the Client agrees that it will not directly contact or attempt to contract with any of Bashwax’s suppliers or in any way attempt to circumvent Bashwax by procuring any item or service in respect of the Services directly from its suppliers.
9.2
The Client understands that any breach of this provision or any attempt to contract any of Bashwax’s suppliers directly will cause financial damage to Bashwax, which will be recoverable by way of a claim for damages.
Employees
9.3
In addition, the Client will not during the term of this agreement or for a period of 6 (six) calendar months following termination thereof, directly or indirectly solicit, employ or contract in any manner with any employee of Bashwax.
10.1
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 or all fees, royalties and payments have been made to and permissions granted from the lawful copyright owner.
10.2
Apart from instances of dishonesty or gross negligence, Bashwax will not be liable for loss, damage or delay, including loss of profits and consequential loss, suffered by the Client as a result of Bashwax’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.
10.3
The Client agrees to hold harmless and indemnify Bashwax 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 Bashwax of the services of any third-party suppliers, breach of any intellectual property rights or in the course of providing the Services.
11.1
Should the Client wish to cancel the Services, the following will occur:
Bashwax shall provide the Client with a final invoice which will cover all expenses, disbursements or Services already incurred or provided by Bashwax prior to the date of termination. The Client understands that the final invoice will include any reasonable loss Bashwax has suffered from cancellation with its third-party suppliers or from the cancellation of the Services generally;
Bashwax 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 Bashwax 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.
11.2
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 Bashwax.
12.1
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:
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 10 (ten) 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.
12.2
The cancellation of the Terms by the innocent party in the circumstances contemplated in clause 12.1 shall be without prejudice to any other rights or remedies the innocent party may have in law (including the right to claim damages).
12.3
In the event of cancellation of the Terms in the circumstances contemplated in clause 12, written notice of any such cancellation shall be given and such cancellation shall take effect on the giving of such notice.
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.
15.1
Should any dispute, disagreement or claim arise between the Client and Bashwax 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.
15.2
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 Bashwax.
15.3
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.
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 Annexure A, from time to time.
17.1
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.
17.2
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 (one party being a duly authorised director of Bashwax). 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.
17.3
Counterparts: The Terms may be signed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
17.4
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.
17.5
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.
17.6
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.
17.7
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.
17.8
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.