- Application of Conditions
These Terms and Conditions shall apply to all services rendered by Agent Orange The Publisher CC (herein termed Agent Orange Design) and shall be incorporated into every agreement between Agent Orange Design and any Customer placing an order with Agent Orange Design.
The Customer shall be responsible for any increases in Agent Orange Design’s costs as a result of any changes to such job parameters or other material made by the Customer either directly or indirectly after the date of any estimate given by Agent Orange Design, and for any increase in costs by way of overtime charges if the time and date for completing a project is brought forward by the Customer either directly or indirectly.
Written confirmation accepting our estimate or a purchase order is required before work can commence (e-mails are considered a written confirmation).
In the case of printed work, the client will be required to approve and sign off designs, copy, artwork and proofs before final printing can begin. Agent Orange Design will take reasonable precaution to ensure accuracy of text on visual materials, but ultimate responsibility lies with the client.
(a) In the event that any job is cancelled by the Customer after having been placed with Agent Orange Design, the Customer will be responsible to Agent Orange Design for the cost of work carried out and other costs incurred by Agent Orange Design up to the date of such cancellation. In addition, the Customer will be responsible for paying any cancellation fee incurred by Agent Orange Design to any sub-contractor of Agent Orange Design which becomes due and payable as a result of such cancellation.
(b) Any cancellation must be in writing and must be sent or delivered to Agent Orange Design and shall be deemed effective only as at the date received by Agent Orange Design. Nothing herein shall constitute a penalty and both Agent Orange Design and the Customer agree that any cancellation fee referred to herein is a fair and proper assessment of Agent Orange Design’s loss.
- Preliminary work
All work carried out, whether experimentally or otherwise, at a Customer's request shall be deemed chargeable.
- Supply of design elements and data
A charge may be made to cover any additional work involved where the design elements/data supplied or specified is not clear, legible, or in the prescribed format/specification to produce satisfactory results. Where material is so supplied or specified, responsibility will not be accepted for imperfect work caused by defects in the supply, format or specification. This includes any incompatibility or defects caused by differing software versions or conflicting operating systems.
Agent Orange Design is registered for VAT. Therefore, we include such value on quotes, orders and/or invoices.
All payments to Agent Orange Design shall be made within 48 hrs. of the date of any invoice submitted. Agent Orange Design reserves the right to require a Customer to make full or part payment prior to supply of work and/or to submit interim invoices for work done before completion of any job. All queries regarding invoices should be brought to the attention of Agent Orange Design within 7 days of receipt of invoice. Agent Orange Design reserves the right to charge interest on accounts outstanding 15 days after the date of invoice, at a rate of 3% per month of the outstanding amount.
In the event of default in payment by the Client the Company shall be entitled without prejudice to any other right or remedy to suspend any further performance of or deliveries under any contract or contracts between the Company and the Client without notice.
Unless the client has established a valid credit facility with the Company, no deliverables, masters or rights in any project shall be released without the prior settlement of any outstanding payment.
An account shall be considered default if it remains unpaid for 45 days from the date of invoice. Agent Orange Design shall be considered entitled to remove Agent Orange Design's and/or the Customer’s material from any and all computer systems, until the amount due has been fully paid. This includes any and all unpaid monies due for services, including, but not limited to: hosting, domain registration, design and project management, sub-contractors, printers, photographers and libraries. Removal of such materials does not relieve the Customer of it’s obligation to pay the due amount. Customers whose accounts become default agree to pay Agent Orange Design reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
Unless specifically requested to the contrary, Agent Orange Design shall be entitled to sub-contract any work to any third parties as it thinks fit. Agent Orange Design shall not be responsible to the Customer for any delays occasioned by a sub-contractor failing to meet deadlines imposed upon it by Agent Orange Design for completion of any job, for any reason outside the direct control of Agent Orange Design.
The Client agrees not make an approach to any Agent Orange Design sub-contractors, agents or employees with a view to contracting with the sub-contractors, agents or employees of Agent Orange Design directly to work independently of Agent Orange Design.
Agent Orange Design reserves the right to publicise work produced for the Customer other than when contractually bound not to do so. Agent Orange Design requests all printed literature and websites designed by Agent Orange Design to have a design credit. In the case of websites, this should be in the form of a small link at the bottom of the home page or site-wide.
- Performance, Delivery or Collection
(a) Unless otherwise agreed in writing, all times quoted for performance or delivery or availability for collection are given in good faith but are not guaranteed by Agent Orange Design. The time for performance or delivery or availability for collection shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Client. Alteration by the Client of its requirements may result in delay in performance, delivery and/or availability for collection for which the Company shall bear no liability.
(b) Any packaging supplied by the Company, unless otherwise expressly agreed, is intended to provide adequate protection throughout normal conditions of transport by the means specified in the agreement or as otherwise agreed. If the Client (or the intended recipient) fails to take delivery on the agreed date or to collect on the agreed collection date, or if no specific delivery or collection date has been agreed, when the goods are ready for dispatch, Agent Orange Design shall be entitled to store the goods and to charge the Client the reasonable cost of doing so, and to tender its account for such charges to the Client, provided that in no event shall Agent Orange Design be under any liability in respect of any loss or damage following the dispatch of any goods from the Company’s premises.
For the avoidance of doubt, the Client agrees and acknowledges that Agent Orange Design is not providing to the Client the benefit any insurance, beyond any specifically required by law, with respect to any risks that might arise out of or as a result of the use by the Client of Agent Orange Design's facilities or services and any consequential risks that might rise from it.
- Retention of title
Customers retain the copyright to data, files and graphic logos provided by the Customer, and grants Agent Orange Design the rights to publish and use such material. The Customer must obtain permission and rights to use any information or files that are copyrighted by a third party.
The ownership of any design or any other material prepared by Agent Orange Design remains with Agent Orange Design until all sums owing and due to Agent Orange Design by the Customer have been discharged in full. If a choice of design is presented, only one solution is deemed to be given by Agent Orange Design as fulfilling the contract, all other designs remain the property of Agent Orange Design. Agent Orange Design reserves the right to demand payment in full before any design or other material is supplied to the Customer, or making live of any online project. For the avoidance of doubt the parties hereby agree that Agent Orange Design shall be and remain the owner of the entire copyright and other intellectual property rights in any design or other copyright work prepared by Agent Orange Design hereunder for the full duration of copyright therein.
The Customer may request in writing from Agent Orange Design, the necessary permission to use materials (for which Agent Orange Design holds the copyright) in forms other than for which it was originally supplied, and Agent Orange Design may, at it’s discretion, grant this subject to additional charges. Such permission must be obtained in writing before it will allow any of the aforesaid artwork, images, text, or other data to be used.
- Extent of Agent Orange Design’s responsibility
(a) Agent Orange Design’s responsibility is restricted to providing graphic design services. It shall be the responsibility of the Customer to ensure that any third party’s approval which is required in respect of the said job be obtained. Any expense incurred by Agent Orange Design in providing further services to obtain such third party approval shall be charged to the Customer at Agent Orange Design’s standard rates.
(b) The Customer shall be liable to Agent Orange Design for any increased costs incurred by any changes to the job specification required by the Customer.
(c) It is the responsibility of Agent Orange Design Customers to approve the design of any brochure/website/graphic/logo/artwork provided by Agent Orange Design. Once the Customer has approved a design, it becomes the legal responsibility of that Customer. Agent Orange Design cannot be held responsible for any similarities or infringement of copyright to any other publication or website if the design has been approved by the Customer. It is therefore the responsibility of the Customer to ensure the design they approve is not similar to that of competitors or other businesses and Agent Orange Design cannot be held responsible in any way for damages or loss of earnings or any other loss or legal action if similarities are found after the approval is received from the Customer to Agent Orange Design.
- Limitation of liability
(a) The Company will take all reasonable precautions to safeguard property entrusted to us. In the absence of negligence on our part, however, we are not responsible for loss, destruction or damage or unauthorised use by others of such property.
(b) All implied conditions and warranties, statutory or otherwise are hereby excluded.
(c) Agent Orange Design’s liability (if any) to the Customer shall in all cases be limited to the amount of the job payable by the Customer and in no circumstances shall Agent Orange Design be liable for any loss of profit or other consequential loss suffered by the Customer.
(d) If Agent Orange Design is unable to provide any facilities or services agreed to be provided by Agent Orange Design to the Customer due to circumstances beyond its control Agent Orange Design shall not be liable for any loss suffered or any sum payable by the Customer as a result thereof.
(e) Agent Orange Design will make every effort to ensure all delivery deadlines are met and goods are received in good order. Although best efforts are used to guard against any loss arising from the failure of Agent Orange Design's suppliers, media, or others to perform in accordance with their commitments, Agent Orange Design is not responsible for failure on their part.
(f) Agent Orange Design takes no responsibility for the quality of any print or artwork not entirely overseen by Agent Orange Design.
(g) Agent Orange Design takes no responsibility for suitability of materials chosen in good faith and in consultation with the Customer, printer, manufacturer or supplier which does not meet the Customer’s expectations for reasons beyond Agent Orange Design’s control.
- Customer’s indemnities
The Customer shall fully indemnify Agent Orange Design or (where relevant) its sub-contractors, agents or employees from and against all actions, proceedings, claims, demands, damages, fees, costs, losses and expense or other liabilities whatsoever made against or incurred or suffered by Agent Orange Design or sub-contractors, agents or employees by reason of or in respect of:
(a) any infringement of copyright or trademark or any passing off or any other infringement or interference with any proprietary right or interest of any third party or any civil or criminal action or prosecution for defamation or obscenity or for any breach of any confidence or misuse of any confidential information arising out of any work carried out by on behalf of the Customer;
(b) any breach by the Customer of any of these Terms and Conditions;
(c) the Customer agrees that Agent Orange Design holds no responsibility for any amendments made by any third party, before or after a design is published.
- Legal Restrictions
Agent Orange Design's services may be used for lawful purposes only. Submission, transmission, or maintenance of any information or materials in violation of any legal statutes and/or regulations is prohibited. This includes, but is not limited to, material legally judged to be threatening or obscene. Agent Orange Design reserves the right to refuse service to the Customer without providing reason or cause.
- Law and Jurisdiction
These Terms and Conditions shall be interpreted in accordance with the laws of the City of Johannesburg, and the parties agree to submit to the exclusive jurisdiction of the Johannesburg Courts.
Copyrights and Trademarks: The client represents to Agent Orange Design and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Agent Orange Design for inclusion in Web pages are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Agent Orange Design and its subcontractors from any claim or suit arising from the use of such elements furnished by the client.
Copyrights to Web Pages: Copyright to the finished assembled work of Web pages produced by Agent Orange Design, is owned by Agent Orange Design. Upon final payment of this contract, the client is assigned rights to use as a Website the design, graphics, and text contained in the finished assembled Website. Rights to photos, graphics, source code, work-up files, and computer programs are specifically not transferred to the client and remain the property of their respective owners. Agent Orange Design retains the right to display graphics and other Web design elements as examples of their work in their respective portfolios.
Payment of fees: Payments must be made promptly. If an amount remains delinquent 30 days after its due date, an additional 3% penalty will be added for each month of delinquency. Agent Orange Design reserves the right to remove Web pages from viewing on the Internet until final payment is made. In case collection proves necessary, the client agrees to pay all fees incurred by that process.
Completion Date: Agent Orange Design and the client must work together to complete the Website in a timely manner. We agree to work expeditiously to complete the Website as per our turnaround times expressed in our Estimates. To avoid additional fees the client must supply quick and constructive feedback.
Maintenance and Hourly Rate: This agreement includes Web page maintenance to regular Web pages (over a 2-week period) of one-quarter hour total, including updating links and making minor changes. If the client or an agent other than Agent Orange Design attempts updating the client's pages, time to repair Web pages will be assessed at the hourly rate and is not included as part of the updating time. The 2-week maintenance period commences upon the date the website is live. Changes requested by the client beyond those limits will be billed at the hourly rate of R750.00 + VAT. This rate shall also govern additional work authorised beyond the maximums specified above for such services as marketing consulting, Web page design, editing, modifying, animation, photo, and any other design services.
Website Backups: Agent Orange Design will store back-ups of preceding websites for a period of 6 months after uploading the new website. Once a website has been completed, Agent Orange Design will not be held responsible for creating backups of the website, or repair to the website due to client error. Website software should be updated once a year for security purposes and is the responsibility of the client to undertake.
Hosting: Compatibility with our script, uptime rate, website performance and quality of service are guaranteed by our 3rd-party hosting partners. Our company is not responsible for any isolated problems arising from our partner's servers, their faults, misconfiguration or performance.
Photographs and/or Video will remain property of Agent Orange Design and Brandon Barnard Photography, until final payment is made. No retouching services are included in our Estimates, unless otherwise specified. Additional photography time will be charged at a rate of R2,750.00 + VAT per hour.
With delivery and payment of the works, the customer acquires a license for use of the photographic works within the agreed scope. Not included herein is a sub-licensing to third parties by the customer. The remuneration must be paid in full even if the ordered and delivered photographic images are not used. A back up of the photographs will be kept for 15 days after the shoot. Please store your photographs in a safe place.
Cancellations: Client is responsible for payment of all expenses incurred up to the time of cancellation of the assignment, plus 50 percent of Photographer's fee; however, if notice of cancellation is given less than two (2) business days before the shoot date, Client will be charged 100 percent fee.
Postponements: Unless otherwise agreed in writing, Client will be charged a 100 percent fee if postponement of the assignment occurs after photographer has departed for location, and 50 percent fee if postponement occurs before departure to location.
Fees for cancellations and postponements will apply irrespective of the reasons for them, specifically including but not limited to weather conditions, acts of God, nature, war, terrorism, civil disturbance, and the fault of a third party.
Agent Orange Design and Brandon Barnard Photography retain ownership of all source/native/open files (layered art and/or raw footage).
- Copywriting Services
If the client decides to kill the work after the brief has been met and work has been delivered by the deadline date, full payment will be made.
Process and timescale: Copywriter’s estimate is based on information provided by client. Copywriter reserves the right to amend this fee if the job takes longer than anticipated, or if your requirements change. Copywriter will produce a first draft in the timescale agreed. Copywriter will write up to two (3) drafts in total within the initial estimate of charges. Subsequent amendments will be charged at R750.00 + VAT per hour.
Whilst Copywriter shall make every effort to ensure that copy is free of spelling mistakes and other literals, early drafts may sometimes contain such errors. Copywriter’s practice is to ensure that these are removed before a final draft is submitted to you. However, the responsibility for checking for spelling mistakes and literals is yours, and you absolve the Copywriter of responsibility for any costs incurred as a result of the appearance of such errors in the final published form.
The Service shall be delivered to you in accordance with the brief agreed at the outset of the project either through concept meetings or in written proposals or emails.
The Service shall be made available for acceptance at agreed stages. At each agreed stage changes to the Service shall only be permitted to the extent that such changes are consistent with the brief. Beyond completion of the final "Master" we will allow the 'Three Hour Rule'. By this it is meant that any change or alteration to the final Master that we deem will take less than three man-hours will not be charged.
Other than as stated in the clause above changes to the brief or otherwise that result in additional work being carried out will be chargeable at the relevant daily rate. This shall include the following:
(a) Changes that result from inaccurate or misleading information having been supplied by you in preparation of the brief;
(b) Changes that result from your failure to obtain consent from any third parties or employees necessary in the delivery of the Service;
(c) Changes that result from a significant change to the brief including the script;
(d) Additions to the original brief in the form of extra variations or edits of the originally planned piece, such as web versions or DVD copies.
(e) Additions of any stock footage, music or other third party content that was not originally agreed as part of the original brief. Use of third party Stock Footage and Music will be charged at the appropriate rate requested by the third party supplier.
Our Copyright Policy: We (Agent Orange Design) operate a fair approach to copyright. All copyright vested in the media produced by us shall be assigned to you subject to the following:
(a) Payment in full is received from you for all outstanding invoices;
(b) You grant us a royalty free licence to use all copyright in the media produced by us for our own promotional purposes such as on our website or otherwise;
(c) All design concepts such as logos, themes, plans, models together with all copyright in any music shall remain vested in us and shall be made available to you on licence save that you shall only be permitted to use such material and design concepts for the purpose identified in the brief;
(d) Our enforcement of the above conditions is subject to our adherence to the Storage Policy as outlined below.
(a) All footage will be captured in Hi-Definition (as standard) and stored on professional format digital media and transferred to a hard drive in our studio for "editing.
(b) Following completion of the edit the footage is then copied to a secondary back up hard drive at our studio to protect against electronic drive failure. All original source tapes are archived in our studio and remain property of Agent Orange Design.
We reserve the right to assign or sub-contract any or all of the rights and obligations under these terms and conditions without your further consent to such assignment or sub-contract. Agent Orange Design reserves the right to terminate the contract without further notice if the terms of this contract are not upheld by the client.
Any Breaches of the above Terms and Conditions will be rigorously pursued with applicable laws.
Updated: August 2017