1.  GENERAL

These Terms and Conditions supersede any previous Terms and Conditions distributed in any form. Shmaak It Marketing reserves the right to change any rates and any of the Terms and Conditions at any time and without prior notice. The following Terms and Conditions of Service apply to all products and services provided by Shmaak It Marketing. All work is carried out by Shmaak It Marketing on the understanding that the client has agreed to Shmaak It Marketing’s terms and conditions. Copyright is retained by Shmaak It Marketing on all design work including words, pictures, ideas, visuals and illustrations unless specifically released in writing and after all costs have been settled. If a choice of design is presented, only one solution is deemed to be given by Shmaak It Marketing as fulfilling the contract. All other designs remain the property of Shmaak It Marketing, unless agreed in writing that this arrangement has been changed.

2. CONDUCT

Shmaak It Marketing abides by the International Chamber of Commerce (ICC) Code of Advertising and Marketing Communication Practice (2006 Edition) and shall furnish professional standards of skill, care, diligence and professional judgment in the performance of its obligations under this Agreement.

3.  PROJECT ACCEPTANCE & CONFIRMATION

At the time of proposal, Shmaak It Marketing will provide the customer with a formal cost estimate. The Terms and Conditions can be read on Shmaak It Marketing’s website. A copy of the written cost estimate and contract is to be signed and dated by the customer to indicate acceptance and should be returned to Shmaak It Marketing. No work on a project will commence until either document has been received by Shmaak It Marketing.

4. COST ESTIMATES

The Client shall be responsible for any increases in Shmaak It Marketing’s costs as a result of any changes to such job parameters or other material made by The Client either directly or indirectly after the date of any cost estimate given by Shmaak It Marketing, 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 Client either directly or indirectly. Cost Estimates are valid for a period of thirty (30 Days) from the date of cost estimation.

5.  DESIGN CHARGES AND PAYMENT

Charges for design services to be provided by Shmaak It Marketing, will be set out in the written estimate that is provided to The Client. At the time of the customer’s signed acceptance of this cost estimate, indicating acceptance of the Terms & Conditions, a deposit of 50% of the estimated cost fee will become immediately due. Work on the project will not commence until Shmaak It Marketing has received this amount. Should the project be delayed or stand still by The Client without any progress for 30 (Thirty) working days from date of last proof supplied by Shmaak It Marketing, a Milestone payment of 15% will be required.

6. 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.

7. PRELIMINARY WORK

All work carried out, whether experimentally or otherwise, at The Client’s request shall be deemed chargeable.

8. SUB-CONTRACTING

Unless specifically requested to the contrary, Shmaak It Marketing shall be entitled to sub-contract any work to any third parties as it thinks fit. Shmaak It Marketing shall not be responsible to The Client for any delays occasioned by a sub-contractor failing to meet deadlines imposed upon it by Shmaak It Marketing for completion of any job, for any reason outside the direct control of Shmaak It Marketing.

9. PERFORMANCE, DELIVERY OR COLLECTION

Unless otherwise agreed in writing, all times cost estimated for performance or delivery or availability for collection are given in good faith but are not guaranteed by Shmaak It Marketing. 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 Shmaak It Marketing shall bear no liability. Shmaak It Marketing shall not be held liable for any delay in print production and late delivery thereof. Any packaging supplied by Shmaak It Marketing, 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, Shmaak It Marketing 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 Shmaak It Marketing be under any liability in respect of any loss or damage following the dispatch of any goods from the Company’s premises.

10.  COPYRIGHTS AND TRADEMARKS

By supplying text, images and other data to Shmaak It Marketing for inclusion in The Client’s business cards, flyers, pamphlets, website or other medium, the customer declares that it holds the appropriate copyright and/or trademark permissions. The ownership of such materials will remain with the customer, or rightful copyright or trademark owner. Any artwork, images, or text supplied and/or designed by Shmaak It Marketing on behalf of the customer, will remain the property of Shmaak It Marketing and/or it’s suppliers. The customer may request in writing from Shmaak It Marketing, the necessary permission to use materials (for which Shmaak It Marketing holds the copyright) in forms other than for which it was originally supplied, and Shmaak It Marketing may, at its discretion, grant this. Such permission must be obtained in writing before it will allow any of the aforesaid artwork, images, text, or other data to be used. By supplying images, text, or any other data to Shmaak It Marketing, the customer grants Shmaak It Marketing permission to use this material freely in the pursuit of the design. Should Shmaak It Marketing, or the customer supply an image, text, audio clip or any other file for use in a business cards, flyers, pamphlets, website, multimedia presentation, print item, exhibition, advertisement or any other medium believing it to be copyright and royalty free, which subsequently emerges to have such copyright or royalty usage limitations, the customer will agree to allow Shmaak It Marketing to remove and/or replace the file on the site. The customer agrees to fully indemnify and hold Shmaak It Marketing free from harm in any and all claims resulting from the customer in not having obtained all the required copyright, and/or any other necessary permissions. Unless otherwise specified all fonts used in any design material supplied by Shmaak It Marketing will remain property of Shmaak It Marketing.

11.  IMAGES

Shmaak It Marketing will attempt to ensure that only royalty free images are used in custom designs. It is agreed that Shmaak It Marketing, employees, directors and suppliers, will not be held liable for any damages, costs and expenses, including reasonable legal fees, arising out of or related issues, copyright, or trademark infringement resulting from images used upon request of the client or provided by the client.

12.  ARTWORK

We prepare and check artwork for reproduction as carefully as possible. However, we do not accept responsibility for any errors caused by The Client or suppliers (for example typesetters, printers etc.) once artwork has been passed for print or production. Shmaak It Marketing agrees to hold on behalf of The Client finished artwork or sketch work that has been created by Shmaak It Marketing or used by Shmaak It Marketing in furtherance of this Agreement and accept responsibility for any damage or loss of such artwork and sketch work held by Shmaak It Marketing during the term of this Agreement and for one year thereafter. Artwork or sketch work kept for over one year after the termination of this Agreement will be destroyed unless claimed.

13. PROOFING OF FINAL PROJECT

To limit any possible errors in artwork, designs will not go to production until they have been approved by The Client. Shmaak It Marketing will not be held responsible for errors if the client misses something in the proof, has reused a printed or digital proof, or if the client, during order placement, has requested the order go to production without proofing.

14.  ALTERATIONS

The Client agrees that changes required over and above the estimated work or required to be carried out after acceptance of the draft design will be liable to a separate charge. The Client also agrees that Shmaak It Marketing holds no responsibility for any amendments made by any third party, before or after a design is published.

15. INDEMNITY

The Client shall indemnify Shmaak It Marketing in respect of all financial liability (including professional costs damages and accounts of profits) arising out of any claims made against Shmaak It Marketing alleging infringement of any intellectual property rights if such claim arises from the use of information, inventions, ideas, designs, artwork, copy or other material provided by The Client.

16. TRAVELLING

Should Shmaak It Marketing need to travel on The Client’s business outside Gauteng but within South Africa and upon The Client’s request, Shmaak It Marketing shall be reimbursed at a “per diem” expense per person travelling of ZAR 2,000 (ex VAT). In the event that Shmaak It Marketing is required to travel outside of South Africa upon The Client’s request, Shmaak It Marketing shall be reimbursed at a “per diem” expense per person travelling of USD 450 (ex VAT).

17. LICENSING

Any design, copywriting, drawing, idea or code created for the customer by Shmaak It Marketing, or any of its contractors, is licensed for use by The Client and may not be modified, in any way or form without the express written consent of Shmaak It Marketing and any of its relevant sub-contractors. All design work where there is a risk that another party make a claim, should be registered by The Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. Shmaak It Marketing will not be held responsible for any and all damages resulting from such claims. Shmaak It Marketing is not responsible for any loss, or consequential loss, non-delivery of products or services, of whatever cause. The Client agrees not to hold Shmaak It Marketing responsible for any such loss or damage. Any claim against Shmaak It Marketing shall be limited to the relevant fee(s) paid by the customer.

18. DATA FORMATS

The Client agrees to Shmaak It Marketing’s definition of acceptable means of supplying data to the company. Text is to be supplied to Shmaak It Marketing in electronic format as standard text (.txt), MS Word (.doc) on a memory stick, or CD-ROM, or via e-mail. Images which are supplied in an electronic format, are to be provided in a format as prescribed by Shmaak It Marketing via a memory stick, CD-ROM, or e-mail. Images must be of a quality suitable for use without any subsequent image processing, and Shmaak It Marketing will not be held responsible for any image quality which the client later deems to be unacceptable. Shmaak It Marketing cannot be held responsible for the quality of any images which the client wishes to be scanned from printed materials. Additional expenses may be incurred for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing, or data entry services.

19. DESIGN PROJECT DURATION

Any indication given by Shmaak It Marketing of a design project’s duration is to be considered by The Client to be an estimation. Shmaak It Marketing cannot be held responsible for any project over-runs, whatever the cause. Estimated project duration should be deemed to be from the date that cleared funds are received by Shmaak It Marketing for the initial payment or by date confirmed in writing by Shmaak It Marketing.

20. DESIGN PROJECT COMPLETION

Shmaak It Marketing considers the design project complete upon receipt of The Client review and formal approval. Other services such as printing, display panel production, film work, website uploading, publishing etc., either contracted on The Client’s behalf constitute a separate project and can be treated as a separate charge.

21.  DEFAULT

An account shall be considered default if it remains unpaid for 30 days from the date of invoice. Shmaak It Marketing shall be considered entitled to remove Shmaak It Marketing and/or The Client 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, business cards, flyers, pamphlets, hosting, domain registration, search engine submission, design and maintenance, sub-contractors, printers, photographers and libraries. Removal of such materials does not relieve the customer of its obligation to pay the due amount. Client’s whose accounts become default agree to pay Shmaak It Marketing reasonable legal expenses and third-party collection agency fees in the enforcement of these Terms and Conditions.

22. KIDS’ PRIVACY

Our Website is intended for the use of adults and individuals 13 years of ages and older. Our Website is not directed to children under the age of 13. Users under the age of 13 must have the permission and/or assistance of an adult while using or visiting our Website.

23. DESIGN CREDITS

The Client agrees to allow Shmaak It Marketing to place a small credit on printed material exhibition displays, advertisements and/or a link to Shmaak It Marketing’s own website on the customer’s website. This will usually be in the form of a small logo or line of text placed towards the bottom of the page. The Client also agrees to allow Shmaak It Marketing to place designs on Shmaak It Marketing’s own website and social media for demonstration purposes and to use any designs in its own publicity. This includes cancelled projects, and projects not been finalised within an 8-month period.

24. CONFIDENTIALITY AND EXCLUSIVITY

It is Shmaak It Marketing’s duty not to disclose any confidential information of The Client during or after Shmaak It Marketing’s appointment without The Client’s permission. However, this does not apply to the information already in the public domain or which subsequently comes into the public domain. The Client acknowledges that it is Shmaak It Marketing’s right to use any general marketing and advertising intelligence, which Shmaak It Marketing has gained during this appointment. The Client views any breach by Shmaak It Marketing of its confidential business information as serious and reserves the right to enforce the confidentiality of such information by any legal means available to it, including but not limited to, injunctive relief.

25. RIGHTS OF REFUSAL

Shmaak It Marketing will not include in its designs, any text, images or other data which it deems to be immoral, offensive, obscene or illegal. All advertising material must conform to all standards laid down by all relevant advertising standards authorities. Shmaak It Marketing also reserves the right to refuse to include submitted material without giving reason. Any images and/or data that Shmaak It Marketing does include in all good faith, and then finds out that it contravenes these Terms and Conditions, the customer is obliged to allow Shmaak It Marketing to remove the contravention without hindrance, or penalty. Shmaak It Marketing is to be held in no way responsible for any such data being included.

26. BUSINESS OR MARKETING FAILURE

The customer agrees that if any service or design provided by Shmaak It Marketing does not generate the desired marketing outcome, that Shmaak It Marketing will not be held responsible. Shmaak It Marketing will also not be held responsible to refund the customer at any time.    

27. TERMINATION

A termination notice can also be served at any time before the end of the term of this contract by either party sending the other a written notice. The termination period shall be no less than a thirty (30) day calendar month. The Client agrees to settle Shmaak It Marketing’s dues from the last date of the notice period. Any cancellation must be in writing and must be sent or delivered to Shmaak It Marketing and shall be deemed effective only as at the date received by Shmaak It Marketing. These include a recalculation of the fees based on the new delivery period and the delivered scope of work. All ideas, designs, concepts, original compositions, finished advertisements, radio and television commercials and all other works and material prepared or acquired by Shmaak It Marketing will be assigned and given to The Client after termination of contract and settlement of all payments to Shmaak It Marketing due for services actually performed, and subject to the terms of any license or permission pursuant to which Shmaak It Marketing may have obtained the use of such material and to such material being in the public domain.

28. SOUTH AFRICAN LAW

This Contract and any other matters concerning the relationship between Shmaak It Marketing and The Client shall be governed by and construed in accordance with the Law of South Africa.

29. JURISDICTION

Any dispute that might arise between the Parties shall be finally settled by the competent courts in South Africa.

30.  SHMAAK IT MARKETING STAFF

The Client agrees not to employ Shmaak It Marketing’s personnel during the tenure of the contract and for a subsequent period of two years from the date of its termination.

31. DISCLAIMER

Shmaak It Marketing makes no warranties of any kind, express or implied, for any and all products and/or services that it supplies. Shmaak It Marketing will not be held responsible for any and all damages resulting from products and/or services it supplies. Shmaak It Marketing is not responsible for any loss, or consequential loss of data, or non-delivery of products or services, of whatever cause. While we take reasonable steps to investigate the materials we recommend, we accept no responsibility for the performance or quality of materials or any consequential loss arising from their failure. The customer agrees not to hold Shmaak It Marketing responsible for any such loss or damage. Any claim against Shmaak It Marketing shall be limited to the relevant fee(s) paid by The Client.

Shmaak It Marketing reserves the right to use the services of sub-contractors, agents and suppliers and any work, content, services and usage is bound by their Terms and Conditions. Shmaak It Marketing will not knowingly perform any actions to contravene these and the client also agrees to be so bound. Shmaak It Marketing and its clients agree to comply with Printers Terms and Conditions which include disclaimers for non-completion on time and the flexibility to supply quantities within 10% of the total ordered.