Standard Terms of Service

Definitions

• Client consultation: Time the Service Provider spends with the Client in advising in advertising, design and branding strategies and feedback for the Client’s company; and in-person, over the phone, or email technical support.

• Client Content : All materials, information, factual, promotional, or other advertising claims, photography, writings and other creative content provided or required by Client for use in the preparation of and/or incorporation in the Deliverables.

• Copyrights: A copyright is an exclusive property rights granted by law for original work to an author, designer, etc. as defined and enforceable under the CIPC and DTI and the South African Copyright Act of 1978 and its amendments.

• Confidential Information: anything that embodies all data or materials that has or might have industrial worth or different utility within the enterprise during which a disclosing party is engaged.

• Design revision: A change or variation to a design concept or deliverable with a change of less than 1/4 of the design. A Design Revision or otherwise referred to as a “Revision” is simply meant to be a slight modification or course correction to progress toward the final design. 

• Design change: A change or variation to a design concept or deliverable with a change greater than 1/4 of the design is considered a Design Change. This also includes any new ideas or concepts which differ to the original brief or exceed the Project Scope and Deliverables. 

• Design Agents: Third party designers or other service providers independently contracted by Luca Creative Agency in connection with the Services.

• Deliverables: means the services and work product specified in the Proposal to be delivered by Service Provider to Client, in the form and media specified in the Proposal.

• Final deliverables: Final versions of Deliverables provided by Designer and accepted by Client.

• Final Works: means all creative content developed by Service Provider, or commissioned by the Service Provider, exclusively for the Project and incorporated in the Final Deliverables, including, but not limited to, any and all visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, typographic treatments and text, modifications to Client Content, and Service Provider’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials. 

• Personal Data: Information that can be used to identify you specifically, including your name, shipping address, email address, telephone number or demographic information like your age, gender, or hometown. 

• Proposal / Project Proposal / Estimates: 

• Project: The scope and purpose of the Client’s identified usage of the work product as described in the Proposal. 

• Services: All services and the work product to be provided to Client by Service Provider as described and further defined in the Proposal. 

• Standard Hourly Rate: R320 per hour

• Trade Secrets: Each Party’s “Trade Secrets” shall mean a Party’s proprietary property, including information, ideas, patterns, compilations, data, lists, documents, memoranda, processes, programs, devices, methods, techniques, formulas or improvements, whether or not patentable. 

• Third party materials: proprietary third party materials supplied by Third Party Vendors which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

• Third party vendors: a company or entity that provides a product or service to the Service provider on behalf of the Client. Examples of these are companies who provide stock images, materials, software and programs, web hosting services.

• Working Files: All underlying work products and digital files utilized by the Service Provider to create the Final Works other than the format comprising the Final Deliverables.

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Invoices and payments

• All Estimates and Proposals (with deliverables, terms and due dates specified on the Proposal) is valid until specified expiry date. In the event the Proposal is not accepted and signed 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. 

• Client shall pay all invoices within seven (7) calendar days of the invoice date. If payments aren't made within 7 calendar days, Luca Creative Agency has the right to reschedule and Projects and adjust Due Dates as it sees fit.

• Payments outstanding after thirty (30) calendar days will be subject to an additional cost of 10% of the payment due per month. Payments will be credited first to late payment charges and next to the unpaid balance.

• Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment.

• LUCA Creative Agency reserves the right to suspend all services until the full amount has been paid. This may lead to re-scheduling of project due dates. Luca Creative Agency reserves the right to withhold Deliverables if accounts are not current or overdue invoices are not paid in full. 

• Any additional meetings or Client Consultations which are outside Project Scope, Proposal and Deliverables will be billed at the Service Provider’s standard hourly rate.

• Clients paying on an hourly basis will receive access to the Client Portal, where they can view a report from a time tracking software outlining all the hours the Service Provider has spent on the Project as well as a history of previous estimates, invoices and payments.

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Design changes & revisions

• Unless otherwise provided in the Project Proposal, 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 Service Provider’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal (Estimate%EstimateNumber% issued on %EstimateDate%), despite any maximum budget, contract price or final price identified therein. Service Provider may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes. 

• The Service Provider and the Client shall work together to the best of their abilities on a cohesive vision for the Project outcome. With each Design Revision, the Client agrees to be as specific as possible to allow the Service Provider to make the particular changes the Client wants. Unless otherwise provided in the Proposal, Client shall pay additional charges for Design Revisions requested by Client which are outside the scope of the Services on a time and materials basis, at Service Provider’s standard hourly rate. Service Provider may extend or modify any delivery schedule or deadlines and Deliverables as may be required by such Changes. 

• If Client requests or instructs Changes that involve any new ideas or concepts which differ to the original brief or exceed the Project Scope and Deliverables or changes that are greater than 1/4 of the design is considered a Design Change. Where a design change is requested by Client, Service Provider 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. Service Provider may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes. 

Attribution and promotions

• Service Provider retains the right to reproduce, publish and display the Final Works, Deliverables, and Preliminary Works, in Service Provider’s portfolios and Websites, Social media 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 professional materials, and, if not expressly objected to, include a link to the other party’s Website. When any project is completed and introduced to the public, the Service Provider has the right to add the Client’s name to your client list and the right to enter the work into design competitions. 

• If LUCA Creative Agency designs a website for The Client, LUCA Creative Agency reserves the right to display a small text link (12pt) to their own website, on the bottom of The Client's website. Client shall not remove the credit without written permission from LUCA Creative Agency, as long as Designer’s code or design is being used on Client’s web site. If Client would prefer not to include the credit, Client may notify the Service Provider in writing that Client does not wish to include the credit in the footer, and the credit may be removed for a fee.

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Deadlines, work priority and scheduling

• Work priority and scheduling will be at the discretion of the Service Provider. Work will normally occur between the hours of 8am to 5pm SAST (South African Standard Time) on weekdays (Monday to Friday). Luca Creative Agency will prioritise 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 the time(s) identified in the Proposal.

• Any indication given by Service Provider of a project’s duration is to be considered by Client to be an estimation. LUCA Creative Agency cannot be held responsible for any project overruns, whatever the cause. 

• LUCA Creative Agency is not responsible for any delays in the Project due to Client’s delay in communication, approval, or providing content to the Service Provider. Client acknowledges and agrees that Service Provider’s ability to meet schedules is entirely dependent upon 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 Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of this Agreement by Service Provider. 

• Client acknowledges that Service Provider has reserved time exclusively to perform the Services. Accordingly, in the event Client causes a delay in the Services (“Client Delay”),  Client acknowledges that if Service Provider accepts other work because of a Client Delay, Service Provider may adjust time to complete the Services as necessary to accommodate such other work. 

• If LUCA Creative Agency has not heard from the Client for any approvals or content needed for a period of 25 days or longer, the Service Provider reserves the right to consider the contract abandoned and cease work on the Project. Any money already paid to the Service Provider by Client will be in consideration for the material, time, and effort on behalf of the Service Provider.

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Artwork, approval and storage

• Where work created by the Service Provider that includes content from third party vendors (e.g., stock illustration, photography, software), intellectual property ownership for those materials remains with those third party vendors and their own Copyright and Ownership policies are applicable. The Client is responsible for ensuring that they have the appropriate licenses when making use of third party materials. 

• Intellectual property rights in Third Party Materials shall be owned by the respective third parties. LUCA Creative Agency shall inform Client of all Third Party Materials to be procured by LUCA Creative Agency that Client may need to license at Client’s own expense, and unless otherwise arranged by Client, Service Provider shall obtain a license for Client to use the Third Party Materials consistent with the usage rights granted herein. Client shall indemnify, save and hold harmless LUCA Creative Agency 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Works at Client’s request.

• The Client is responsible for the submission of accurate artwork, data or content. LUCA Creative Agency takes no responsibility for errors in the submitted artwork, data or content. LUCA Creative Agency will assume The Client owns copyright of the image or photograph in use, and will not be held liable for any accusations regarding the unauthorised use of an image, artwork or photograph provided by the Client. 

• LUCA Creative Agency takes care to avoid any errors throughout the design process. Once the artwork is approved by The Client, the decision is final and LUCA Creative Agency takes no responsibility for any mistakes on the Final Works. It is The Client's responsibility to check all information including all spelling, grammar, phone numbers, addresses and other important information on the artwork. It is also the clients responsibility to ensure that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry. LUCA Creative Agency cannot offer refunds for mistakes on Final Works and will ask an additionalstandard hourly fee/rate to change any mistake after any project is signed off and approved by the Client. 

• It is the client's responsibility to constantly download, file and store their files from this database. LUCA Creative Agency will not take responsibility for any missing or damaged files once the project has been completed and delivered to the client
   

Confidentiality, Liability & Privacy

• Each party acknowledges that by working with each other on a project, they may receive certain confidential or proprietary technical and business information and materials of the other party (“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 Project, except as may be required by a court or government 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.

• Each Party acknowledges that the other Party’s Trade Secrets are Confidential Information and should produce reasonable efforts under the circumstances to maintain the secrecy of the property. 

• Client agrees to indemnify, save and hold harmless Service Provider 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 Client’s responsibilities or obligations, representations or warranties under this Agreement. The Client agrees that the Service Provider will not be liable for any incidental or consequential damages that arise from the Service Provider’s performance of service provided (including, but not limited to, failure to perform in a timely manner, regardless of whether the failure was intentional or negligent.)

• The services and the work product of the Service Provider are provided “as is.” In all circumstances, the maximum liability of Service Provider, its directors, officers, employees, design agents and affiliates, to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the total Project fee of Designer. In no event shall Service Provider 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 or the services provided by Service Provider.

• Our Privacy Policy is designed to explain how we collect, use, share, and protect the Personal Data you provide to us when you access our website, purchase our goods or services, or engage with us on social media, as well as your own rights to the information we collect. Client agrees to our Privacy Policy. Our Privacy Policy may be updated from time to time without notice to you. For more information on our privacy policy, please visit www.lucacreative.com/privacypolicy. 

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Other 

• Intellectual Property Provisions ND Assignment of Rights shall be as put out in the Proposal

• The Client hereby confirms that he or she consents to be added to LUCA Creative Agency's email list and to receive general communication, newsletters, special offers and/or products and service.  

• The Service Provider shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Service Provider shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

• This agreement is interpreted and enforced in accordance with the laws of South Africa. We both accept the exclusive jurisdiction of the courts of such jurisdiction where the Premises is located. The parties furthermore consent to the jurisdiction of the Magistrate's Court in respect of any dispute that may arise out of this Lease Agreement or a breach thereof or in respect of the Premises or any part thereof.

• Luca Creative Agency shall not be liable to you for any breach of its obligations or termination under these terms and conditions arising from causes beyond its reasonable control, including, but not limited to, fires, floods, earthquakes, volcanoes and other Acts of God, terrorism, strikes, delay caused by transport disputes, failure to provide a course caused by a death in the trainer’s family, illness of the trainer, Government edict or regulation.

• Should a dispute or diagreement occour, each party agrees that the will follow the following dispute resolution process: one party invites the other in writing to a meeting and attempts to resolve the dispute within 7 (seven) days from the date of the written invitation. To this effect, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If the dispute has not been resolved by such negotiation within seven (7) days of the written invitation, the dispute shall be submitted to mediation, which shall be administered by the Arbitration Foundation of South Africa (‘AFSA’) in terms of the AFSA Mediation Rules. If the parties are unable to resolve the dispute through mediation, the dispute, if arbitral by law, shall be finally resolved in accordance with the AFSA Commercial Rules.

• LUCA Creative Agency reserves the right to refuse to handle in any form or manner, material that may be deemed offensive, illegal, controversial or non-compliant with our values and beliefs and to terminate services should the situation arise. In the event of termination, Client will be held liable for any fees related to all work created and produced up to the termination date. Ownership of original artwork and all copyrights will remain under LUCA Creative Agency and Client shall not have rights to use the Deliverables except upon written consent from Designer provided after such termination. Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive. 

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