These terms and conditions (“Terms”) govern all Projects and Outputs delivered or executed by Billie and Code (Pty) Limited (Registration Number 2020/631141/07) (“B&Co”). Similarly, the access and use of B&Co’s website will be governed by these Terms as well.
These Terms shall take precedence over any other terms and conditions which may form part of your documentation, unless agreed to in writing and signed by both Parties.
1. DEFINITIONS:
Unless inconsistent with the context, the expressions set forth below shall bear the following meanings:
1.1. “Acceptance/Accepted/Accept” means the acceptance of any interim or Final Output submitted to you by B&Co. Acceptance must be communicated in writing to B&Co within 24 hours. Failure to Revert or Accept within the 24-hour period will result in B&Co deprioritizing the project and its outputs until written acceptance is received by B&Co;
1.2. “Cost Estimate / CE” means the accepted calculation of the cost and deliverables of the Project;
1.3. “Data Protection Legislation” means the laws relating to data protection in South Africa, including, but not limited to, the Electronic Communication and Transactions Act 25 of 2002 (ECTA), the Consumer Protection Act (CPA) 68 of 2008 and the Protection of Personal Information Act (POPI);
1.4. “Digital Realm” means the region, sphere, platform or domain within which the content delivered by B&Co may be visible to current, past or prospective customers or any other third party;
1.5. “Intellectual Property” shall include, without limitation, any know-how, patent, copyright, registered design, trademark or other industrial or intellectual property rights, whether registered or not and whether or not capable of being registered;
1.6. “B&Co” means Billie and Code (Pty) Limited, registration number: 2020/631141/07
1.7. “B&Co’s Pre-Existing Intellectual Property” means all Intellectual Property owned by B&Co including any improvements, enhancements, modifications or knowledge developed while performing the Services and producing the Output for you and in any working papers and presentations compiled in connection with the Services but shall not extend to your Personal Information reflected in such working papers;
1.8. “Open Files/Production Files” means the files containing all information and building blocks of the finalised work/output/deliverables;
1.9. “Output” means the interim and/or final Services or Project deliverables delivered to you by B&Co for Acceptance or Revert;
1.10. “Parties” means B&Co and you as the Party engaging with B&Co for purposes of receiving Services from B&Co and Party shall mean either one;
1.11. “Personal Data” means all personal data for which you are the responsible party (where, for the purposes of this definition, “Personal Data” and “responsible party” have the meanings given to them by POPI) to which B&Co have been given access or which is generated by or on your behalf, including, inter alia-
1.11.1. Race, sex, gender, sexual orientation, pregnancy, marital status, nationality, ethnic or social origin, colour, age, physical or mental health, well-being, disability, religion, conscience, belief, cultural affiliation, language and birth;
1.11.2. Education, medical, financial, criminal or employment history;
1.11.3. Names, identity number and/or any other personal identifier, including any number(s), which may uniquely identify a data subject, account or client number, password, pin code, customer or data subject code or number, numeric, alpha, or alphanumeric or configuration of any nature, symbol, e-mail address, domain name or IP address, physical address, cellular phone number, telephone number or other assignment;
1.11.4. Blood type, fingerprint or any other biometric information;
1.11.5. Personal opinions, views or preferences;
1.11.6. Correspondence that is implicitly or expressly of a personal, private or confidential nature (or further correspondence that would reveal the contents of the original correspondence); and
1.11.7. Corporate structure, composition and business operations (in circumstances where the data subject is a juristic person) irrespective of whether such information is in the public domain or not;
1.12. “POPI” means the Protection of Personal Information Act, No. 4 of 2013;
1.13. “Processing” means the collection, receipt, recording, organisation, collation, storage, updating or modification, testing of, retrieval, alteration, consultation or use;
1.13.1. dissemination by means of transmission, distribution or making available in any other form by electronic communications or other means; or
1.13.2. merging, linking, blocking, degradation, erasure or destruction; and “Process” has a corresponding meaning.
1.14. “Project” means the scope / piece of work / services / plan which B&Co will deliver to you and what you will pay B&Co for (more fully described in the CE);
1.15. “Project Commencement Date” means the mutually agreed date on which the planning / pre-production of the Project will commence;
1.16. “Revert” means feedback given to B&Co on an interim or final Output presented, where you require changes and/or amendments. All reverts must be submitted to B&Co within 24 hours of B&Co having submitted the Output to you.
1.17. “Scope of Work / Project Scope” means the document signed by both Parties containing any milestones, reports, deliverables, timelines and end products that are to be provided by B&Co, as well as any work delivered.
1.18. “Services” means web design, social media, google Adwords, web hosting.
1.19. “Website” means the website of B&Co at https://www.billieandcode.co.za/
2. APPOINTMENT AND DURATION:
You shall be bound by these Terms the moment you engage with B&Co or access B&Co’s website and will terminate once B&Co has delivered the Services to you, or you have paid for such Services in full or the Terms are terminated in line with Clause 7 below.
3. SERVICES:
3.1. B&Co will deliver the Services to you as agreed by both Parties in the Scope of work and / or the CE;
3.2. In the event that B&Co agrees to extended use of the final Output as aforesaid, a new CE must be signed detailing the costs and other terms relevant to the agreed extended use of the final Output. No extended use of any final Output will be allowed prior to a signed and accepted CE as well as performance in accordance with that CE;
3.3. B&Co will provide interim Output at agreed intervals in terms of which you will be required to Accept or Revert on the interim stages of the Project;
3.4. You are required to Revert to B&Co within 24 (twenty-four) hours of B&Co having sent the interim Output, in order for the Project to continue as agreed in the CE and not be delayed.
3.5. Should you wish to Revert on the Output, you are required to set out your requested changes and comments in writing, within the time frame referred to above, and submit to B&Co for review.
3.6. Should B&Co believe, in its sole discretion, that your Revert amounts to a change of scope or differs from the agreed deliverables contained in the CE, you will required to follow the amendment process set out in clause 5 below.
3.7. Should B&Co accept that the Revert is in line with the scope of the CE, B&Co will make the required amendments and resubmit the interim Output to you for Acceptance.
3.8. Should you fail to Accept or Revert to B&Co within the period set out in clause 3.5 above, B&Co will deprioritize the project and its outputs until written acceptance is received by B&Co.
4. PAYMENT TERMS:
4.1. B&Co will provide you with a CE which will be valid for 10 (ten) calendar days;
4.2. Once the CE has been accepted by you, depending on the Project, you may be required to:
4.2.1. Make a payment of a deposit of 50% of the amount reflected in the CE must be paid to B&Co within 48 (forty-eight) hours of acceptance of the CE; and
4.2.2. The remaining payment amount reflected in the CE shall be paid by you within 48 (forty-eight) hours of acceptance of the second and final deliverables.
4.3. Where a CE has not been provided, payment of any invoice submitted by B&Co must be paid in full within 30 (thirty) days of receipt thereof.
4.4. Where you require a Purchase Order number to be issued prior to making payment of any invoice, same should be provided within 5 (five) days of request by B&Co.
4.5. B&Co fees shall escalate at a rate determined by B&Co on 1 January each year;
4.6. Should any fees not be paid on the due date for payment, B&Co will not release or share any Output. All fees must be paid in full to B&Co before it will release or share any Output. B&Co will suspend the delivery of the Services for the period the fees remain unpaid;
4.7. Interest on any overdue payments shall be charged at a rate of 2% per month.
4.8. You agree to pay all the costs (including legal fees) that B&Co may incur when recovering any unpaid fees from you.
4.9. Payment on all disbursements, expenses and any third-party invoices for, amongst others, composers, models and venues will be allocated in a separate CE. You will be required to carry charges of forward cover on these disbursements, where appropriate, from the date of the CE.
4.10. With regard to payment of the invoices in respect of Services delivered by B&Co, payment must be made in Rands at the spot rate (meaning the price based on the rand conversion on the date of payment).
5. AMENDMENTS TO THE PROJECT SCOPE:
5.1. Any proposed amendments to the Project Scope shall be made in writing.
5.2. A meeting between the Parties shall be held to discuss the proposed amendments and to ascertain what the Parties wish to achieve by making such amendments.
5.3. B&Co will have internal discussions regarding the feasibility and practicality of the proposed amendments, the cost and date of delivery impact and whether it will be possible for B&Co to effect the amendments.
5.4. Should B&Co be satisfied that B&Co can effect the amendments, B&Co will draft a new CE for you to accept and sign.
5.5. Should B&Co not be satisfied that B&Co can effect the amendments, B&Co will inform you in writing and will continue with the work as quoted in the original CE.
5.6. Should you not be satisfied with B&Co’s decision and decide to cancel these Terms, immediate payment of the cancellation terms as set out in clause 7 shall become due and payable.
6. BREACH:
6.1. Should either Party breach any clause in these Terms the affected Party shall be able to give the Party who is in breach notice in writing to rectify the breach within 14 (fourteen) days from date of the notice.
6.2. Should B&Co fail to rectify the breach within 14 (fourteen) days you will be able to claim specific performance from B&Co.
6.3. Should you fail to rectify the breach within 14 (fourteen) days, B&Co will be able to cancel these Terms or claim specific performance from you.
6.4. Both Parties shall be allowed to claim damages in addition to claiming specific performance from the other Party.
7. TERMINATION:
7.1. Both Parties shall be entitled to cancel these Terms at any time prior to the Project Commencement date, free of penalty, provided such notice of cancellation is received by no later than 30 (thirty) days prior to the Project Commencement Date,
7.2. B&Co reserves the right to charge a cancellation fee to cover any costs which B&Co may incur due to you canceling these Terms should you cancel at any time after the period set out in clause 7.1 above. The cancellation fees are applicable as follows:
7.2.1. Should you cancel these Terms within five days of the Project Commencement Date but no later than 48 (forty-eight) hours prior the Project Commencement Date, you will be liable for 50% of the costs set out in the CE;
7.2.2. Should you cancel the Terms at any time after the period set out in clause 7.2.1 above you be liable for 100% of the costs set out in the CE.
8. INSURANCE:
8.1. B&Co will take out the necessary public liability insurance to cover production of the Project, where required. These costs will be reflected in the CE and are for your account.
8.2. B&Co will not insure you or any third-party in any manner over and above the public liability insurance referred to in clause 8.1 above, you are required to ensure that you have adequate insurance to cover any liability that may arise from the Project.
9. CONFIDENTIALITY:
9.1. Both Parties agree that B&Co will, at all times, treat all information in connection with and / or relating to the other Party, its business and all matter incidental thereto (the “Confidential Information”) as strictly confidential and shall not, without written consent (which consent will not be unreasonably withheld) from the other Party disclose such Confidential Information to any other person and / or make use of such Confidential Information for any purpose other than in connection with the rendering of the Services.
10. INTELLECTUAL PROPERTY RIGHTS:
10.1. Subject to the remaining provisions of this clause 10, all Intellectual Property owned by either Party (whether before or after the Effective Date) shall remain the sole and exclusive property of that Party.
10.2. All content on B&Co’s website (unless explicitly stated), any content created for you, work delivered to you, including but not limited to, raw/captured footage, ideas and execution, strategy, graphics, images, clips, digital downloads, and software, is our property or licensed to us whether registered or not. B&Co specifically reserves all rights relating to such content.
10.3. The trade-mark, copyright or other Intellectual Property rights in the Outputs created by B&Co for you (with the exception of B&Co’s Pre-Existing Intellectual Property included therein or any improvements made in respect thereof) will vest in, and be assigned to you, upon full and final payment of all of B&Co’s fees, third party costs and associated fees, duly payable in terms of clause 4, unless otherwise agreed in writing. It is, however, specifically noted that this excludes all third-party rights, which by their nature cannot be fully assigned to you. These include but are not limited to model and music rights where the rights only relate to a specific territory, medium and/or duration.
10.4. If you use the trade mark, copyright or other Intellectual Property rights for any other purpose other than that that has been acquired by B&Co, then B&Co will not be held liable.
10.5. Any content or ideas prepared by B&Co for you, may only be utilised in conjunction with B&Co. For the sake of clarity, you may not circumvent B&Co and approach a third party with the concepts and ideas created by B&Co, with the intention of that third party utilizing such content and ideas in any development, to the exclusion of B&Co.
10.6. “B&Co” and other marks indicated on B&Co’s website are B&Co’s trademarks. These and other graphics, logos, page headers, button icons, scripts, product and service names are our copyrights and/or trademarks belonging to us, whether registered or not (this means any recognisable sign, design, or expression which distinguishes any products or any characteristic of appearance of products or services of B&Co from those of others, belongs to us).
10.7. B&Co’s trademarks and/or copyrights may not be used with any other product or service without B&Co’s prior written consent.
10.8. B&Co’s trademarks and/or copyrights may not be used in any way that may cause confusion, or in in a way that prejudices or discredits B&Co.
10.9. All other trademarks and/or copyrights not owned by B&Co that appear on B&Co’s website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by B&Co.
11. LIABILITY:
11.1. B&Co disclaims all warranties of any kind, whether express or implied in respect of the Services and you use such Services at your own risk.
11.2. You understand and agree that B&Co will not be able to guarantee a specific set of results and there is accordingly no warranty as to fitness for purpose.
11.3. B&Co will not be liable for any loss or damages arising, whatever the cause, in accordance with these Terms.
11.4. Should B&Co be found to be liable to you for a particular act or omission then B&Co’s liability will be limited to fees already paid by you on the Project forming the subject of the dispute.
12. INDEMNITY:
12.1. You hereby indemnify B&Co from any loss, damage (either general, special or consequential), liability, claim, expense, costs or demand which may arise due to your unlawful conduct, willful misconduct and / or gross negligence.
12.2. You indemnify and will keep B&Co indemnified against any claim for infringement of intellectual property rights regarding any information given by you to B&Co and against all costs, expenses and damages B&Co may incur or become liable for because of such infringement.
12.3. B&Co will inform you, in writing, as soon as B&Co have been made aware of any claim being made or action threatened or brought against B&Co and will allow you, at your own expense, to continue with any litigation or negotiations that may follow for a settlement of the claim.
13. THE WEBSITE
13.1. Usage
13.1.1. B&Co Website is the registered property of B&Co.
13.1.2. Any persons accessing and/or using B&Co Website for any reason whatsoever subjects themselves to and agrees to the terms and conditions and privacy policy of B&Co when accessing the Website as set out below.
13.1.3. B&Co expressly reserves the right, in its sole and absolute discretion, to alter and/or amend any criteria or information set out in the Website without prior notice.
13.1.4. Nothing on the Website shall be construed as an offer by B&Co to you, the user, but merely an invitation to do business.
13.1.5. You may send content and other communications to and/or via this Website provided that the content is not illegal, obscene, objectionable, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of a communication. B&Co reserves the right to remove or edit such content in its sole discretion.
13.1.6. You hereby represent and warrant that you own or otherwise control all the rights to the content that you post on this Website; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you indemnify B&Co or its affiliates from all and any claims resulting from content you supply to B&Co. B&Co shall not be held responsible or liable for any content posted on B&Co Websites.
13.2. Intellectual Property
13.2.1. All content on the Website (unless explicitly stated), and any work submitted to clients or potential clients, including but not limited to, text, graphics, logos, button icons, images, clips, digital downloads, data compilations, and software, is the property of B&Co or licensed to B&Co and as such, is protected from infringement by domestic and international laws, legislation and treaties. B&Co expressly reserves all rights pertaining to such content.
13.2.2. B&Co and its affiliates respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, an infringement of any intellectual property right, please notify us by e-mail or post at the addresses below:
E-mail: tanya@billieandcode.co.za
13.2.3. All content, trademarks and data on this Website and any work submitted to clients or potential clients, including but not limited to, software, databases, text, graphics, icons, hyperlinks, private information, and designs are the property of or are licensed to B&Co, and as such are protected from infringement by domestic and international laws, legislation and treaties.
13.2.4. “B&Co” and other marks indicated on B&Co Website are the trademarks or trade dress of B&Co. These and other B&Co graphics, logos, page headers, button icons, scripts, product and service names are trademarks or trade dress of B&Co.
13.2.5. B&Co trademarks and trade dress may not be used in connection with any product or service without the written consent of B&Co.
13.2.6. B&Co trademarks and trade dress may not be used in any manner that is likely to cause confusion amongst its clients, or in any manner that disparages, prejudices or discredits B&Co.
13.2.7. All other trademarks not owned by B&Co that appear on this Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by B&Co.
13.3. Licenses And Web Site Access
13.3.1. B&Co hereby grants you a limited license to access and make personal use of the Website provided that in making use of the Website you do not download any content, other than for page caching purposes, except where the facility to download is expressly provided or express written consent to do so is otherwise given by B&Co. You are expressly prohibited from modifying any portion of this Website, whether in part or whole, except with the express written consent of B&Co.
13.3.2. This license does not include any right of resale or commercial use of this Website or its contents. For the purposes of this clause 13, any collection and/or use of any listings and/or descriptions; any derivative use of this Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools for any commercial purpose is expressly prohibited unless stated otherwise.
13.3.3. It is expressly prohibited to frame or utilize framing techniques to enclose and/or mask any trademark, logo, or other proprietary information (including images, text, page layout, or form) of B&Co and/or our affiliates without its express written consent.
13.3.4. It is expressly prohibited to use any meta tags or any other “hidden text” utilizing B&Co’s name or trademarks without the express written consent of B&Co.
13.3.5. Any unauthorized use of this Website, its content or applications terminates the permission or license granted by B&Co. You are granted a limited, revocable, and non-exclusive right to create a hyperlink to the home page of B&Co provided the link does not portray B&Co, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive manner.
13.3.6. You may not use any B&Co logo or other proprietary graphic, trademark, or material as part of the link without express written permission from B&Co.
13.4. Disclosures Required By Section 43 Of The South African Electronic Communications And Transactions Act (ECTA):
13.4.1. The full name and legal status of the website owner is: Billie and Code (Pty) Limited (Registration Number 2020/631141/07).
13.4.2. The full address of the website owner is: https://www.billieandcode.co.za/
13.4.3. Director: Tanya Gomes.
13.5. Disclaimer of Warranties and Limitation of Liability:
Subject to the provisions of sections 43(5) and 43(6) of the ECTA, B&Co shall not be liable for any damage, loss or liability of whatsoever nature arising from the use or inability to use this web site or the services or content provided from and through this Website. Furthermore, B&Co makes no representations or warranties, implied or otherwise, that, amongst others, the content and technology available from this Website are free from errors or omissions or that the service will be 100% uninterrupted and error free.
14. PROTECTION OF PERSONAL INFORMATION (“POPI”):
14.1. B&Co will only Process or disclose Personal Data in accordance with applicable laws, in terms of these Terms and in accordance with any written instructions, requirements or specific directions from you.
14.2. B&Co will ensure that all staff members of B&Co and any other persons that has access to your Personal Data are bound by the appropriate legally binding obligations in relation to your Personal Data.
14.3. B&Co will take appropriate, reasonable and technical measures to ensure that the integrity of your Personal Data in possession or under control of B&Co is secure and your Personal Data in possession or under control of B&Co remains available to you as and when you need it.
15. NOTIFICATION OF PERSONAL DATA SECURITY BREACH:
15.1. B&Co will notify you immediately when upon becoming aware that the Personal Data of a data subject has been accessed or acquired by an unauthorised person and take all appropriate steps to limit the compromise of Personal Data and to restore the integrity of the affected information systems as quickly as possible, B&Co will assist you to report all relevant facts relating to the compromise and provide you with details of the Personal Data affected by the compromise.
15.2. If B&Co or any third-party to which the Personal Data has been disclosed pursuant to these Terms, is required by law, regulation or court order, to disclose or process any Personal Data, B&Co will advise you thereof prior to disclosure or Processing.
15.3. B&Co will not transfer Personal Data provided to you outside of South Africa unless you authorise such transfer in writing and B&Co will comply with your express instructions for cross-border transfers of any Personal Data.
15.4. On condition that undertakings provided by B&Co and if content was approved or assumed to have been approved by you and was actually implemented, presented, published and/or communicated by us in such approved format, B&Co will not be liable for any loss or damage of whatsoever nature and howsoever arising, including but not limited to, loss of profit and direct, indirect, incidental, special or consequential loss or damage, whether arising under contract, delict or otherwise, which may be suffered or incurred by you or any third-party as a result of the provision of the Services in terms of these Terms.
15.5. Both Parties undertake to use B&Co’s reasonable endeavours to procure that any of the other person’s data operators (as defined in POPI), agents and contractors comply with the Data Protection Legislation and all other applicable data protection legislation and regulations about the performance of the other person’s obligations and exercise of their rights under these Terms.
15.6. Both Parties undertake-
15.6.1. to treat the Personal Data as confidential information;
15.6.2. not to use or knowingly permit any third-party to use, or have access to, the Personal Data for any purpose other than as is expressly permitted by these Terms;
15.6.3. that B&Co will not use Personal Data held by B&Co pursuant to these Terms for any purpose that is inconsistent with those purposes notified to the relevant data subject (as defined by the Data Protection Legislation) on or before the time of collection of that Personal Data.
16. RETENTION AND DESTRUCTION:
16.1. B&Co will store all Personal Data which it processes for the minimum time periods stipulated by you in writing and shall be required to destroy all Personal Data relating to the data subjects in compliance with the destruction time periods stipulated by you.
17. FORCE MAJEURE:
17.1. If either Party is prevented or restricted from carrying out all or any of their obligations under these Terms because of a strike, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, shortage or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labours government interference (“the event”), the Party who is affected by this event will be relieved of their obligations under these Terms during the time the event carries on and shall not be liable for any delay or failure in the performance of any obligations under these Terms or loss or damage either general, special or consequential which the other Party may suffer due to the event.
17.2. Once the event has ended the Party who is affected by the event must give notice to the other Party that such event has ended. Should the event continue for a period of more than 90 (ninety) days, the other Party will be allowed to immediately cancel these Terms.
18. ASSIGNMENT:
18.1. You will not be allowed to cede, delegate, assign or otherwise transfer all or any of your rights under these Terms unless you written permission from B&Co has been given and such permission shall not be withheld unreasonably.
19. DISPUTES:
19.1. Should a dispute arise that cannot be resolved amongst the Parties, B&Co will allow the directors / owners / authorised parties of both Parties to attempt to resolve the dispute within 14 (fourteen) days of being asked to do so.
19.2. If the directors / owners / authorised parties fail to resolve the dispute, both Parties agree and consent that action can be instituted in the Magistrates Court.
20. SEVERABILITY:
20.1. If any of the clauses or term hereof be found, by a competent court, to be invalid, unenforceable or illegal, the remaining clauses will be deemed to be severable from the unenforceable clauses and will continue in full force and effect unless such invalidity, unenforceability or illegality goes to the root of these Terms.
21. GENERAL:
21.1. Neither Party will be bound by any direct or indirect term, representation or promise that is not recorded in these Terms.
21.2. Any permission or approval that might be given by one Party (the “grantor”) to the other Party (the grantee) will not be seen as a waiver or abandonment of any of the rights of the grantor, who shall not thereby be excluded from exercising any rights against the grantee which may have arisen in the past or which might arise in the future.
21.3. Nothing in these Terms will form a partnership, joint venture, agency or employment between the Parties, and neither Party will be allowed to bind, or contract in the name of the other or to create a liability against the other in any way for any purpose.
ACCEPTANCE OF THESE TERMS BY YOU SHALL BE DEEMED TO HAVE TAKEN PLACE ONCE YOU ACCEPT THE COST ESTIMATE OR BY THE USE OF B&CO’S WEBSITE. EVERY INSTANCE OF THE SERVICES AND USE OF THE WEBSITE SHALL BE SUBJECT TO THE ABOVE TERMS AND CONDITIONS.