SERVICE LEVEL AGREEMENT
Entered into and between
NATALIE WEEDEN TA THE BRAND COLLECTIVE
A company duly registered in terms of the company Laws of the Republic of
South Africa being registered under
REGISTRATION NO. 2016/215466/07
(Hereinafter referred to as “the Supplier”)
and
COMPANY 
(Hereinafter referred to as “the Company”)

Whereas the parties agree as follows:

1. INTERPRETATION
1.1. In this Agreement, unless a contrary intention appears from the context, a word denoting one gender includes the other genders, a word denoting the singular includes the plural and vice versa and a word denoting a person includes a corporation.
1.2. The clause headings of this Agreement are for reference purposes only and shall not be used in the interpretation hereof.
1.3. The following terms shall, unless the context otherwise requires, have the following meanings in this Agreement:
“the Supplier” THE BRAND COLLECTIVE
“the Agreement” means this Agreement
“the Client” means THE COMPANY
“the parties” means the Client and THE BRAND COLLECTIVE
“the Services” means the creation, development, implementation and management of below the line advertising, promotional work and packaging design and all associated activities customarily performed by below the line agencies in terms of this Agreement or otherwise as specified by the Client from time to time.
2. APPOINTMENT
2.1. The client hereby appoints the Supplier as one of its below the line Agencies, for the provision of the services in accordance with the terms and conditions set out in this Agreement.
2.2. The Supplier hereby accepts such appointment and agrees to serve as one of the Clients appointed below the line Agencies and undertakes to perform the Services strictly in accordance with the terms and conditions set out in this Agreement.
2.3. The Supplier acknowledges that the Client’s work shall be on a monthly basis and this Agreement in no way guarantees a set amount of work to the Supplier.
2.4. The Supplier is an independent contractor. Nothing stated in this Agreement shall be construed as constituting the Supplier and the Client as partners, or a joint venture, or as creating the
relationship of employer and employee. The Supplier may only bind the Client if it is in possession of prior written approval to do so.
3. SERVICES
3.1. The services falling within the scope of this agreement include but are not limited to account management, strategic development, campaign development, copywriting, monthly reporting, media budget, media buying fee, community management, organic content scheduling, user generated content management, development department support, design, project management, creative direction and any specific requests made by the Client from time to time.
4. DURATION AND COVERAGE
4.1. Subject to the provision of the clauses in this Agreement, this Agreement shall commence on the last day of signing by the Client and shall continue until cancelled by either of the Parties.
5. WORKING RELATIONSHIP
5.1. The Supplier shall make all reasonable efforts to understand the Client’s corporate goals, policies and procedures, service requirements and project branding strategy, the details of which will be fully explained to the Supplier. The Supplier shall also make all reasonable efforts to familiarise itself with and understand the markets within which the client operates, including its products, and acquiring knowledge of competing products and advertisers
5.2. The client will endeavour to assist the Supplier wherever possible and will update the Supplier when changes are made.
6. STORAGE OF GOODS
6.1. The Client is required to accept delivery of Goods immediately on completion unless arrangements to the contrary are made in writing. The Supplier will not be liable for loss or damage of Goods unless the Client has given written instructions for the goods to be retained. This provision shall not apply in the case of negligence.
7. PAYMENT TERMS
7.1. The hourly rate, fees and or project costs, refer to quotes provided, it is agreed that these “rates” are only an estimate and the final invoice will be deemed the final agreed amount.
7.2. Payment is required within
7.2.1 14 calendar days of invoice of adhoc and disbursement projects and on the 25th of the month of invoice for ongoing monthly retainer projects unless alternative arrangements have been made and signed off by at least one Executive director.
7.2.2 7 calendar days of invoice of Paid Media fees unless alternative arrangements have been made and signed off by at least one Executive director.
7.3. Late payment will be charged at a monthly interest rate of 2%, not exceeding 24% per annum.
7.4. Payment disputes must be raised within 5 working days of the invoice issue date.
7.5. Late payments exceeding 90 days will receive a final letter of demand should the claim not be settled by the client after receiving the letter of demand, the Supplier will, via their attorney, file a summons with and have it issued by the clerk of the Magistrates’ Court if the amount being claimed is less than R100 000 or the Registrar of the High Court if the claim is more than R100 000. The cost of the above process will be for the Clients account.
8. CONFIDENTIALITY
8.1. The Supplier shall keep confidential all information and marketing materials and any information relating to the Client’s Business entrusted to it and which may come into its possession in the course of its work and shall not disclose it to any third party without the prior written consent of the Client unless it can show that the information or material has come into the public domain through no fault of the Supplier
8.2. Furthermore, the Supplier agrees to disclose the confidential information referred to above only to its respective officers, directors, employees, consultants and advisors who:
8.2.1. have a need to know, and then only to the extent that each such person has a need to know;
8.2.2. are aware that the confidential information should be kept confidential;
8.2.3. are aware of the Supplier’s undertaking in relation to such information in terms of this Agreement;
8.2.4. have been directed by the Supplier to keep the confidential information confidential, and have undertaken in like terms to keep the confidential information confidential.
8.3. The duty of confidentiality will continue after the termination of this Agreement. The Supplier specifically agrees to the continuation of its duty not to disclose any such confidential information or materials subsequent to the termination of this Agreement.
8.4. Subject to 8.5 below, the Supplier reserves the right to showcase work completed as part of it’s own portfolio of work, unless Client specifically excludes this.
8.5. Where the announcement, communication or circular referred to above is required by law or any rule of any regulatory authority, it shall be made by the Supplier only after reasonable consultation with the Client, if practicable.
9. PROTECTION OF PERSONAL INFORMATION
9.1. The Client understands that the Supplier is bound by the Protection of Personal Information Act (POPI), as a result of this the Client authorises and consents to the Supplier retaining and utilising their personal information, as provided, for the purposes of POPI and for use under the terms and conditions of this agreement and in the fulfilment of this agreement. If the Supplier requires the use of this information for anything other than the use under the terms and conditions of this agreement and in the fulfilment of this agreement, they will seek the Client prior approval. The Client’s attention is brought to the Suppliers POPI privacy policy.
10. TRADEMARKS
10.1. The Supplier undertakes to use the Client’s trademarks strictly in accordance with the Client’s requirements.
10.2. The responsibility of ensuring the registration of trademarks which may come into existence as a result of the work performed in terms of this Agreement rests with the Client. All such trademarks shall be the property of the Client.
11. COPYRIGHT AND PROPRIETARY RIGHTS TO THE SERVICES
11.1. The Supplier acknowledges that advertising materials and creative properties, including copy used in advertising in terms of this Agreement, are the sole property of and vest entirely in the Client. This does not include IP and processes created or invested by the Supplier in the processes of creating said assets.
11.2. Future copyright and other rights in all advertising materials created in terms of this Agreement, including material used in the production of advertising, are hereby assigned to the Client by the Supplier and shall be the sole property of the Client.
11.3. The Supplier shall procure from all contractors and third parties used by the Supplier in terms of this Agreement, an assignment to the Client of copyright and other rights in materials created by those contractors.
12. BREACH
12.1. Should a Party commit any breach of the terms of this Agreement and fail to remedy such breach within 20 (twenty) days of receipt of a written notice calling for the remedy of such breach, the aggrieved Party will be entitled, in its discretion and without prejudicing any other rights that it may have, to either:
12.1.1. claim immediate specific performance; or
12.1.2. cancel this agreement on written notice to the defaulting Party.
12.2. and in either instance to claim and recover damages from the defaulting Party.
12.3. An aggrieved Party will only be permitted to cancel this Agreement pursuant to this clause in the event of a material breach of this Agreement.
13. TERMINATION OF AGREEMENT
13.1. The Client, for whatever reason, shall be entitled to terminate this Agreement on 60 days written notice to the supplier. The supplier reserves the right to terminate this agreement on 30 days written or electronic notice to the Client.
14. CONSEQUENCES OF TERMINATION
14.1. Once the Agreement is terminated and all agreed outstanding fees are paid, arrangements and other materials subject to this Agreement will be transferred to the Client.
15. CANCELLATION AND POSTPONEMENT
15.1. The cancellation or termination of any advertising / design / development is within the sole discretion of the Client and, in the event that the Supplier should be penalised in terms of its contractual obligations with third parties and internal hours incurred, the Client undertakes to reimburse the Supplier in such amounts, unless the cancellation or termination is caused as a result of the Supplier’s failure to comply with the nature of the proposed advertising/ design /
development as approved by the Client, the Supplier’s negligence or delays caused by the Supplier. A minimum of 40% or the value of time invested, whichever is greater of the total project value for once off projects, will be charged on cancellation, once a quote has been accepted.
15.2. Access to files and accounts will only be handed over once all outstanding invoices and costs have been settled. The Client may request these invoices early in order to expedite the handover process.
15.3. Certain services are invoiced in arrears; therefore, it is the Client’s responsibility to settle any invoices that fall outside of the termination date but relate to services and costs incurred during the notice period, as well as any costs associated with the handover process (e.g. file transfer or account migration).
16. OWNERSHIP OF INTELLECTUAL PROPERTY
16.1. The ownership of all physical property shall vest in the Client only once all outstanding fees have been paid.
17. DISPUTE RESOLUTION
17.1. All disputes between the parties in regard to the interpretation of, the effect of, the parties’ respective rights and obligations under, a breach of and or any matter arising out of this Agreement shall be decided by arbitration in the manner set out in this clause.
17.2. The above-mentioned arbitration shall be held subject to the provisions of this clause and held in Durban and in accordance with the provisions of the Arbitration Act No 42 of 1965, as amended. With the Parties intention that, the arbitration shall be held and concluded within 21(twenty-one) working days after it has been demanded.
17.3. The arbitrator shall be, if the question in issue is:
17.3.1. Primarily an accounting matter, an independent accountant of not less than ten years standing agreed upon between the parties;
17.3.2. Primarily a legal matter, a practising senior counsel or attorney with no less than ten years standing agreed upon between the parties;
17.3.3. any other matter, an independent person agreed upon between the parties.
17.4. If the parties cannot agree upon a particular arbitrator in terms of 17.3 above within 7 working days after the arbitration has been demanded, the nomination of an arbitrator shall be made by the standing president of the Durban Law Society within 7 days after the parties have so failed to agree.
17.5. The parties irrevocably agree that the decision in these arbitration proceedings shall be binding on the, shall be carried into effect and may be made an order of any court of competent jurisdiction.
17.6. Notwithstanding the provisions of 17.1 above, either party may in its sole discretion at any time if it so elects, institute legal proceedings against the other for the recovery of any monies due to it by the other party, for the immediate return to it of any materials or other things whatsoever belonging to it and in the possession of the other party and for any urgent relief as it deems necessary and appropriate, under this Agreement in any Court.
18. NOTICES AND DOMICILIA
18.1. All notices to be given in terms of this Agreement shall be in writing and shall be delivered by hand, sent by email or by prepaid registered post to physically addresses the parties selected as their domicilia citandi et executandi.
18.2. Each party shall be entitled at any time to change its domicilium to any other physical address provided that such change shall take effect only upon delivery or deemed delivery of notice thereof to the other party.
18.3. Any notice shall if delivered by hand be deemed to have been received on the date of delivery, if sent by email shall be deemed to have been received on the business day following dispatch and if sent by prepaid registered post, be deemed to have been received six days after posting.
18.4. Notwithstanding the above any notice actually received by the party to whom it is addressed shall be adequate notice to it.
19. DELAYS / CHANGES / REVERTS
19.1. The Client understands that any delays with regards to providing collateral, content, images etc as requested by the service provider will result in a move out of agreed project dates, taking into account weekends and public holidays, as well as any pre-scheduled work in studio.
19.2. The client understands that any reverts, design changes, development changes or campaign changes after initial sign off will be charged at a rate of at least R750.00 ex VAT p/h for Studio Hours and R1000.00 ex VAT p/h for Management respectively. This can be tracked or alternatively quoted on. We reserve the right to update pricing.
19.3 In general, we require a 3-day lead time for common projects, unless agreed otherwise. Projects that require custom quoting and timelines will be given their own lead time, which will be communicated to the client at the point of quoting. Should a brief be received with a lead time of less than 3 days, it may only be scheduled if capacity allows within the studio. The implementation of such projects will incur a rush fee of 50% or more to cover costs should additional resources be required to execute.
19.4. Included reverts, unless otherwise stated, may not exceed 10% of the total project time allocation. Any reverts that exceed this allocation will be subject to an hourly charge at the agreed rate.
19.5. All pricing shall be reviewed and subject to price increases in February/March of each year.
20. FORCE MAJUEURE
20.1. For the purpose of this Agreement, an “Event of Force Majeure” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence and the observance of Good Utility Practice, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstance materially and adversely affects the ability of the Party to perform its obligations under this Agreement, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this Agreement and to mitigate the consequences thereof.
20.2. Subject to the provisions of clause 20.1 above, events of Force Majeure shall include, but not be limited to:
20.2.1.fire, chemical or radioactive contamination or ionising radiation, earthquakes, lightning, cyclones, hurricanes, floods, droughts or such other extreme weather or environmental conditions, unanticipated geological or ground conditions, epidemic, famine, plague or other natural calamities and acts of God;
20.2.2.explosion, accident, breakage of a plant or equipment, structural collapse, or chemical contamination (other than resulting from an act of war, terrorism or sabotage), caused by a person not being the affected Party or one of its contractors or subcontractors or any of their respective employees or agents;
20.2.3.to the extent that they do not involve or take place outside of South Africa, acts of war (whether declared or undeclared), invasion, acts of terrorists, blockade, embargo, riot, public disorder, violent demonstrations, insurrection, rebellion, civil commotion and sabotage;
20.2.4.strikes, lockouts, work stoppage, labour disputes, and such other industrial action by workers related to or in response to the terms and conditions of employment of those workers or others with whom they are affiliated save, when such event is directly related to, or in direct response to any employment policy or practice (with respect to wages or otherwise) of the party whose workers resort to such action;
20.2.5.in relation to the Concessionaire, non-performance by a counter-party to a contract relating to the Concessionaire’s Business by reason of an event or circumstance that would constitute a Natural Force Majeure Event under this Agreement; and
20.2.6.to the extent they take place in South Africa, acts of terrorists, blockade, embargo, riot, public disorder, violent demonstrations, insurrection, rebellion, civil commotion and sabotage;
20.2.7.to the extent that they are politically motivated, strikes, lockouts, work stoppages, labour disputes, or such other industrial action by workers, save in relation to the Concessionaire, when such event is directly related to, or in direct response to any employment policy or practice (with respect to wages or otherwise) of the Concessionaire;
20.2.8.failure or inability of the Concessionaire to obtain or renew any Consent, on terms and conditions as favourable in all material respects as those contained in the original Consent relating to the Concessionaire’s Business (other than due to a breach by the Concessionaire of any of such terms and conditions);
20.2.9.any action or failure to act without justifiable cause by any Competent Authority, other than a court ortribunal (including any action or failure to act without justifiable cause by any duly authorised agent of any Competent Authority, other than a court or tribunal);
20.2.10. expropriation or compulsory acquisition of the whole or any material part of the Concessionaire’s System or Investor’s shares in the Concessionaire, except where such appropriation or compulsory acquisition is on account of contravention of law by the Concessionaire or by the Investor;
20.2.11. any legal prohibition on the Concessionaire’s ability to conduct the Concessionaire’s Business, including passing of a statute, decree, regulation or order by a Competent Authority prohibiting the Concessionaire from conducting the Concessionaire’s Business, other than as a result of the Concessionaire’s failure to comply with the law or any order, Consent, rule, regulation or other legislative or judicial instrument passed by a Competent Authority;
20.2.12. in relation to the Concessionaire, non-performance by a counter-party under a contract relating to the Concessionaire’s Business by reason of an event or circumstance that would constitute a Political Force Majeure Event under this Agreement, provided that breakdown of plant
or equipment (unless itself caused by an Event of Force Majeure), or unavailability of funds, shall not constitute an Event of Force Majeure.
20.3. Either Party shall be excused from performance and shall not be in default in respect of any obligation hereunder to the extent that the failure to perform such obligation is due to a Natural Force Majeure Event. Additionally, the Concessionaire, shall be excused from performance and shall not be in default in respect of any obligation under this Agreement to the extent that the failure to perform such obligation is due to a Political Force Majeure Event.
20.4. If a Party wishes to claim protection in respect of an Event of Force Majeure, it shall, subject to clause [ ], as soon as possible following the occurrence or date of commencement of such Event of Force Majeure, notify the other Party of the nature and expected duration of such Event of Force Majeure and shall thereafter keep the other Party informed until such time as it is able to perform its obligations. The Parties shall use their reasonable endeavours to:
20.4.1.Overcome the effects of the Event of Force Majeure;
20.4.2.Mitigate the effect of any delay occasioned by any Event of Force Majeure, including by recourse to alternative mutually acceptable (which acceptance shall not be unreasonably withheld by either Party) sources of services, equipment and materials; and
20.4.3.Ensure resumption of normal performance of this Agreement as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable, provided that neither Party shall be obliged to settle any strike, lock out, work stoppage, labour dispute or such other industrial action by its employees.
21. GENERAL
21.1. This agreement is governed by and shall be interpreted according to the laws of South Africa and together with the schedules, constitute the entire agreement between the parties and supersedes all previous oral or written understanding/s or agreement/s of any kind relating to the subject matter hereof.
21.2. The Supplier shall not be liable for any final artwork that has been checked and proofed by the Client and then signed off in error. The Supplier shall be liable to ensure that the final deliverable exactly matches the visuals signed off by the Client.
21.3. The Supplier may not, without the Client’s prior written consent, cede, assign, delegate and transfer any of its rights and obligations under this Agreement.
21.4. No amendment, cancellation, extension, waiver, relaxation or suspension of this agreement or any provision hereof shall be binding unless recorded in a written document and signed by the parties. Any extension, waiver or relaxation or suspension agreed to, shall relate strictly to the matter in respect whereof it was agreed and shall not operate as an estoppel against any party in respect of its rights under this agreement.
21.5. To the extent permissible by law, no party shall be bound by any express or implied term, representation, warranty, promise or the like not recorded herein.
21.6. Each party shall be responsible for the payment of its own legal costs incurred by it in connection with the preparation, negotiation and finalisation of this Agreement.
21.7. Design and development time that moves out of scope, will either be quoted for or billed for at the agreed at hourly rate.