LIFA TERMS AND CONDITIONS
In these Basic Terms and Conditions, the words shall have the meanings assigned to them below.
1.1 “Agreement” means the entire content of this Basic Terms and Conditions documents, the Proposal, any Supplements designated below, together with any exhibits, schedules and attachments hereto;
1.2 “Basic Terms and Conditions” means these basic terms and conditions of the Company as set out in this document
1.3 “Client” means the party indicated in the Proposal as the client / recipient of the Services;
1.4 “Client Content” means all materials, information, photography, writings, and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables;
1.5 “Commencement Date” means the later of i) the Signature Date, and ii) acceptance of any Proposal by the Client;
1.6 “Company” means Lifa Ltd. (registration number 141,367), Suite 102, Ground Floor, Blake Building, Belize City, Belize, a company duly incorporated and registered in accordance with the laws of Belize;
1.7 “Copyrights” means the rights to control the use and distribution of artistic and creative works as defined and enforceable under the Copyright, Designs and Patents Act 1988, United Kingdom;
1.8 “Deliverables” means the services and work product specified in the Proposal to be delivered by the Company to the Client, in the form and media specified in the Proposal;
1.9 “Fees” means the fees and charges set out in the Proposal payable by the Client to the Company without deduction or set-off, in immediately available funds into the nominated bank account of the Company;
1.10 “Final Art” means all creative content developed or created by the Company, or commissioned by the Company, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic designs, illustrations, photography, animation, sounds, typographic treatment and text, modifications to Client Content, and the Company’s selection, arrangement and coordination of such elements, together with Client Content and Third Party Materials;
1.11 “Parties” means the Client and the Company and “Party” means either one of them;
1.12 “Preliminary works” means all work product, including but not limited to, concepts, sketches, visual presentations, designs, web layouts, or other alternate or preliminary designs and documents developed by the Company, and which or may not be shown or delivered to the Client for consideration but do not form part of the Final Art;
1.13 “Proposal” means the proposal prepared by the Company and accepted in writing by the Client, setting out the Project, Deliverables, timelines and Fees. This may include a letter of engagement, service agreement and or purchase order concluded between the Company and a Client in a form other that the Company’s standard proposal form, wherein the Company’s Services are procured by a Client.
1.14 “Project” means the scope and purpose of the Client’s identified usage of the work product as identified in the Proposal;
1.15 “Services” means the services set out in the Proposal, and/or any other written agreement or letter of engagement concluded between the Company and the Client in terms whereof the Company delivers a service to the Client;
1.16 “Signature Date” means the date of last signature of this agreement by the Parties;
1.17 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration;
1.18 “Trademarks” shall carry the meaning assigned to it in the Trademarks Act, 1994,United Kingdom;
1.19 These Basic Terms and Conditions shall be read in conjunction with, and is incorporated as an integral part of, any Proposal accepted by a Client. In the instance of ambiguity between these Basic Terms and Conditions and any Proposal, the provisions of the Sale or Proposal shall prevail.
The parties have agreed for the Company to deliver certain services as set out in the Proposal to the Client, in accordance with the terms and conditions detailed in this agreement.
The terms of the Proposal shall be effective for 7 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution
4. PROVISION OF SERVICES AND PAYMENT OF FEES
4.1 The Company shall, on a non exclusive basis, provide the Services to the Client, and, as consideration therefor, the Client shall pay the Fees to the Company.
4.2 Fees and disbursements:
4.2.1 The Client shall pay to the Company the fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
4.2.2 Where the Proposal for any reason is silent on the payment schedule, the fees shall be paid as follows:
22.214.171.124 70% of the total fees shall be payable upfront against presentation of the Company’s invoice;
126.96.36.199 Final 30% shall be payable against presentation of the Company’s invoice prepared based on Final Deliverables;
188.8.131.52 Any additional work required in addition to the original Proposal due to changes in the Project shall be subject to payment of a 50% upfront fee in respect thereof.
4.2.3 Expenses. By prior agreement as set out in the Proposal, the may be liable to the Company for payment of the Company’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus Company’s standard markup of 17 percent (17%), and, if applicable, a mileage reimbursement at R5.20 per km; and (b) travel expenses including transportation, meals, and lodging, incurred by Company with Client’s prior approval.
4.2.4 Additional Costs. The Project pricing includes Company’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
4.3 Fees and disbursements are payable by the Client to the Company, into a bank account nominated by the Company in writing, within 2 (two) Business Days of each of the Company’s invoices, without any deduction or set off and in cleared immediately available funds.
4.4 The Client shall be liable for payment to the Company of interest on all overdue amounts, at the following rate:
4.4.1 5% above the publicly quoted 90 (ninety) day LIBOR (London Inter Bank Offering Rate) compounded monthly in arrear from the due date to date of payment.
5. TERM AND TERMINATION
This Agreement shall commence upon the Commencement Date and shall remain effective until the Services are completed and delivered, unless terminated pursuant to the provisions of clause 15.
6.1 General Changes: Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Company’s prevailing standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Company may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
6.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of thirty five percent (35%) of the time required to produce the Deliverables, and or the value or scope of the Services, Company shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Company.
6.3 Timing. The Company will prioritize performance of the Services as may be necessary or as identified in the Proposal , and will undertake commercially reasonable efforts to perform the Services within time identified in the Proposal. The Client hereby irrevocably agree and undertake to review the Deliverables within the time identified for such review and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Company. The Company shall be entitled to request written clarification of any concern, objection or correction. The Client acknowledges and agrees that the Company’s ability to meet any and all schedules is entirely dependent upon the Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in the Client’s performance or Changes in the Services or Deliverables requested by the Client may delay delivery of the Deliverables. Any such delay caused by the Client shall not constitute a breach of any term, condition or the Company’s obligations under this Agreement.
6.4 Testing and Acceptance. The Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. The Client, within five (5) business days of receipt of each Deliverable, shall notify the Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments the Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and the Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from the Client, the Deliverable shall be deemed accepted.
The Company undertakes to perform and/or procure that the performance of the Services is conducted in a professional and workmanlike manne
8. CLIENT RESPONSIBILITIES
8.1 The Client hereby acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
coordination of any decision-making with parties other than the Company;
8.1.1 provide reasonable feedback and approval of all Deliverables within the timeframe allowed for in the Proposal, failing which, approval shall be deemed provided at the expiry of such timeframe;
8.1.2 provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
8.1.3 final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in the Company’s name in the form, size and location as incorporated by Company in the Deliverables, or as otherwise directed by the Company. The Company retains the right to reproduce, publish and display the Deliverables in Company’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
10. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
11. RELATIONSHIP OF THE PARTIES
11.1 Independent Contractor. The Company is an independent contractor, not an employee of the Client or any company affiliated with the Client. The Company shall provide the Services under the general direction of the Client, but the Company shall determine, in the Company’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. The Company and the work product or Deliverables prepared by the Company shall not be deemed a work for hire. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
11.2 Company Agents. The Company shall be permitted to engage and/or use third party Companies or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, the Company shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
11.3 No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any of the Company’s, employee or Design Agent of the Company, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, or consultation occurs, the Client agrees that the Company shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with the Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. The Company, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
11.4 No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties
12. WARRANTIES AND REPRESENTATIONS
The Client hereby represents, warrants and covenants to the Company that (a) the Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of the Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) the Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) the Client shall comply with all laws and regulations as they relate to the Services and Deliverables
13. LIMITATION OF LIABILITY
13.1 Neither party shall be liable to the other for any indirect or consequential damages whatsoever or howsoever arising.
13.2 The Client agrees to indemnify, save and hold harmless the Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of the Client’s responsibilities or obligations, representations or warranties under this Agreement.
13.3 The Services and the work product of the Company are sold “as is”. In all circumstances the maximum lability of the Company, its directors, officers, employees, Design Agents and affiliates (“Company Parties”), to the Client for damages for any and all causes whatsoever, and the Client’s maximum remedy, regardless of the form of action, whether contract, delict or otherwise, shall be limited to the net profit of the Company earned in respect of the Agreement. In no event shall the Company be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials and or services provided by the Company, even if the Company has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
13.4 The Client hereby acknowledge that the Company is not an authorised or expert financial services provider, and the Company makes no representations as to its authority or expertise in this regard. Any Services delivered by the Company to the Client in respect of capital finance, investment, fund raising and/or corporate finance, is done strictly on an introductory and investor relations facilitation basis. The Company will not be liable to a Client for any loss arising out of or in connection with its appointment to identify, introduce and facilitate potential investment by the Client or by a third party in the Client’s fund raising and/or capital projects, in contract, delict, by statute or otherwise, unless the loss is primarily caused by the gross negligence and wilful default of the Company. Where any loss is suffered by the Client for which the Company is determined to be liable to the Company, the loss recoverable from the Company shall be limited to its fee or compensation.
14. SPECIAL INTELLECTUAL PROPERTY PROVISIONS
Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, the Company grants to the Client the rights to use the Final Art for its intended purpose as set out in the Project only. Any additional uses not identified therein require an additional license and may require an additional fee. All other rights are expressly reserved by the Company. The rights granted to the Client are for the usage of the Final Art in its original form only. The Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
Save as otherwise provided herein, if any Party to this Agreement breaches any provision of this Agreement and remains in breach for a period of 7 (seven) days from date of receipt of a written notice requiring the defaulting Party to rectify that breach, the other Party shall be entitled at that Party’s sole option:
15.1 to sue for immediate specific performance of any or all of the defaulting Party’s obligations under this Agreement, whether or not such obligation is then due; or
15.2 upon the abandonment of such claim for specific performance, if the breach referred to herein constitutes a material breach, to cancel this Agreement (written notice of such cancellation shall be given to the defaulting Party, and the cancellation shall take effect upon the giving of such notice) and claim damages from the Party in breach;
the Parties’ remedies in terms of this clause are without prejudice to any other remedies, which the Parties may be entitled to in law
16.1 All notices to be given by one Party to the other shall be given in writing, by email or delivered by hand, to the email and/or physical address appearing under the name of each party in the Proposal
which physical addresses the Parties choose as their domicilia citandorum et executandorum.
16.2 In the absence of proof to the contrary, any notice sent by one Party to another:
16.2.1 by hand on a Business Day between 09:00 and 15:00, shall be deemed to have been received on the day on which it is so delivered;
16.2.2 by e-mail be deemed to have been received on the date of its transmission.
16.3 The Parties shall be entitled to change the addresses referred to in 7.1 from time to time, to any other physical addresses and any such change shall only become effective upon receipt of notice by the other Party of such change.
17. GOVERNING LAW AND JURISDICTION
17.1 The governing law of this agreement shall be English Law;
17.2 The Parties agree that any legal action or proceedings arising out of or in connection with this agreement may be brought in the any court with competent jurisdiction.
18.1 1 Headings of clauses shall be deemed to have been included for purposes of convenience only and shall not affect the interpretation of this agreement.
18.1.2 Unless inconsistent with the context words relating to any gender shall include the other genders, words relating to the singular shall include the plural and vice versa and words relating to natural persons shall include associations of persons having corporate status by statute or common law.
18.2This agreement contains the sole record of the agreement between the Parties in relation to the subject matter hereof.
18.3 Neither Party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded in this agreement.
18.4 No consensual cancellation of, or addition to, or variation of this agreement shall be of any force or effect unless in writing and signed by or on behalf of both of the Parties.
18.5 No indulgence that either Party may grant the other shall constitute a waiver of that Party’s rights and shall not preclude that Party from exercising any rights which may have arisen in the past or which might arise in the future.
18.6 Save as otherwise provided herein, neither Party shall be entitled, without the prior written consent of the other to cede any of its rights or delegate any of its obligations in terms of this agreement to any other Party.
18.7 If any term or provision of this agreement shall be found to be void, illegal or unenforceable then, notwithstanding, the remaining terms and provisions hereof shall be and remain binding on the Parties.
18.8 If any provision in a definition is a substantive provision conferring any right or imposing any obligation on either Party, then notwithstanding that it is only in the definitions and interpretation clause, effect shall be given to it as if it were a substantive provision in this agreement.
18.9. Where any term is defined within the context of any particular clause in this agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this agreement, notwithstanding that that term has not been defined in this interpretation clause;
18.10 When any number of days is prescribed such number shall exclude the first and include the last day unless the last day falls on a Saturday, Sunday or an official public holiday in the Republic of South Africa, in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or such a public holiday.
18.11 When the term “Business Day/s” is utilised, it shall refer to any day which is not a Saturday or Sunday or official public holiday in the Republic of South Africa.