- Application of Conditions
These Terms and Conditions shall apply to all services rendered by Thinkbetter Media and shall be incorporated into every agreement between Thinkbetter Media and any Customer placing an order with Thinkbetter Media.
The Customer shall be responsible for any increases in Thinkbetter Media’s costs as a result of any changes to such job parameters or other material made by the Customer either directly or indirectly after the date of any estimate given by Thinkbetter Media, and for any increase in costs by way of overtime charges if the time and date for completing a project is brought forward by the Customer either directly or indirectly.
Written confirmation accepting our estimate or a purchase order is required before work can commence (e-mails are considered a written confirmation).
In the case of printed work, the client will be required to approve and sign off designs, copy, artwork and proofs before final printing can begin. Thinkbetter Media will take reasonable precaution to ensure accuracy of text on visual materials, but ultimate responsibility lies with the client.
(a) In the event that any job is cancelled by the Customer after having been placed with Thinkbetter Media, the Customer will be responsible to Thinkbetter Media for the cost of work carried out and other costs incurred by Thinkbetter Media up to the date of such cancellation. In addition, the Customer will be responsible for paying any cancellation fee incurred by Thinkbetter Media to any sub-contractor of Thinkbetter Media which becomes due and payable as a result of such cancellation.
(b) Any cancellation must be in writing and must be sent or delivered to Thinkbetter Media and shall be deemed effective only as at the date received by Thinkbetter Media. Nothing herein shall constitute a penalty and both Thinkbetter Media and the Customer agree that any cancellation fee referred to herein is a fair and proper assessment of Thinkbetter Media’s loss.
- Preliminary work
All work carried out, whether experimentally or otherwise, at a Customer's request shall be deemed chargeable.
- Supply of design elements and data
A charge may be made to cover any additional work involved where the design elements/data supplied or specified is not clear, legible, or in the prescribed format/specification to produce satisfactory results. Where material is so supplied or specified, responsibility will not be accepted for imperfect work caused by defects in the supply, format or specification. This includes any incompatibility or defects caused by differing software versions or conflicting operating systems.
Thinkbetter Media is registered for VAT. Therefore, we include such value on quotes, orders and/or invoices.
All payments to Thinkbetter Media shall be made within 48 hrs. of the date of any invoice submitted. Agent Orange Design reserves the right to require a Customer to make full or part payment prior to supply of work and/or to submit interim invoices for work done before completion of any job. All queries regarding invoices should be brought to the attention of Thinkbetter Media within 7 days of receipt of invoice. Thinkbetter Media reserves the right to charge interest on accounts outstanding 15 days after the date of invoice, at a rate of 3% per month of the outstanding amount.In the event of default in payment by the Client the Company shall be entitled without prejudice to any other right or remedy to suspend any further performance of or deliveries under any contract or contracts between the Company and the Client without notice.Unless the client has established a valid credit facility with the Company, no deliverables, masters or rights in any project shall be released without the prior settlement of any outstanding payment.
An account shall be considered default if it remains unpaid for 30 days from the date of invoice. Thinkbetter Media shall be considered entitled to remove Thinkbetter Media's and/or the Customer’s material from any and all computer systems, until the amount due has been fully paid. This includes any and all unpaid monies due for services, including, but not limited to: hosting, domain registration, design and project management, sub-contractors, printers, photographers and libraries. Removal of such materials does not relieve the Customer of it’s obligation to pay the due amount. Customers whose accounts become default agree to pay Thinkbetter Media reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
Unless specifically requested to the contrary, Thinkbetter Media shall be entitled to sub-contract any work to any third parties as it thinks fit. Thinkbetter Media shall not be responsible to the Customer for any delays occasioned by a sub-contractor failing to meet deadlines imposed upon it by Thinkbetter Media for completion of any job, for any reason outside the direct control of Thinkbetter Media.
The Client agrees not make an approach to any Thinkbetter Media sub-contractors, agents or employees with a view to contracting with the sub-contractors, agents or employees of Thinkbetter Media directly to work independently of Thinkbetter Media.
Thinkbetter Media reserves the right to publicise work produced for the Customer other than when contractually bound not to do so. Thinkbetter Media requests all printed literature and websites designed by Thinkbetter Media to have a design credit. In the case of websites, this should be in the form of a small link at the bottom of the home page or site-wide.
- Performance, Delivery or Collection
(a) Unless otherwise agreed in writing, all times quoted for performance or delivery or availability for collection are given in good faith but are not guaranteed by Thinkbetter Media. The time for performance or delivery or availability for collection shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Client. Alteration by the Client of its requirements may result in delay in performance, delivery and/or availability for collection for which the Company shall bear no liability.(b) Any packaging supplied by the Company, unless otherwise expressly agreed, is intended to provide adequate protection throughout normal conditions of transport by the means specified in the agreement or as otherwise agreed. If the Client (or the intended recipient) fails to take delivery on the agreed date or to collect on the agreed collection date, or if no specific delivery or collection date has been agreed, when the goods are ready for dispatch, Thinkbetter Media 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 Thinkbetter Media be under any liability in respect of any loss or damage following the dispatch of any goods from the Company’s premises.
For the avoidance of doubt, the Client agrees and acknowledges that Thinkbetter Media is not providing to the Client the benefit any insurance, beyond any specifically required by law, with respect to any risks that might arise out of or as a result of the use by the Client of Thinkbetter Media's facilities or services and any consequential risks that might rise from it.
- Retention of title
Customers retain the copyright to data, files and graphic logos provided by the Customer, and grants Thinkbetter Media the rights to publish and use such material. The Customer must obtain permission and rights to use any information or files that are copyrighted by a third party.The ownership of any design or any other material prepared by Thinkbetter Media remains with Thinkbetter Media until all sums owing and due to Thinkbetter Media by the Customer have been discharged in full. If a choice of design is presented, only one solution is deemed to be given by Thinkbetter Media as fulfilling the contract, all other designs remain the property of Thinkbetter Media. Thinkbetter Media reserves the right to demand payment in full before any design or other material is supplied to the Customer, or making live of any online project. For the avoidance of doubt the parties hereby agree that Thinkbetter Media shall be and remain the owner of the entire copyright and other intellectual property rights in any design or other copyright work prepared by Thinkbetter Media here under for the full duration of copyright therein.The Customer may request in writing from Thinkbetter Media, the necessary permission to use materials (for which Thinkbetter Media holds the copyright) in forms other than for which it was originally supplied, and Thinkbetter Media may, at it’s discretion, grant this subject to additional charges. Such permission must be obtained in writing before it will allow any of the aforesaid artwork, images, text, or other data to be used.
- Extent of Thinkbetter Media’s responsibility
(a) Thinkbetter Media’s responsibility is restricted to providing graphic design services. It shall be the responsibility of the Customer to ensure that any third party’s approval which is required in respect of the said job be obtained. Any expense incurred by Thinkbetter Media in providing further services to obtain such third party approval shall be charged to the Customer at Thinkbetter Media’s standard rates.
(b) The Customer shall be liable to Thinkbetter Media for any increased costs incurred by any changes to the job specification required by the Customer.
(c) It is the responsibility of Thinkbetter Media Customers to approve the design of any brochure/website/graphic/logo/artwork provided by Thinkbetter Media. Once the Customer has approved a design, it becomes the legal responsibility of that Customer. Thinkbetter Media cannot be held responsible for any similarities or infringement of copyright to any other publication or website if the design has been approved by the Customer. It is therefore the responsibility of the Customer to ensure the design they approve is not similar to that of competitors or other businesses and Thinkbetter Media cannot be held responsible in any way for damages or loss of earnings or any other loss or legal action if similarities are found after the approval is received from the Customer to Thinkbetter Media.
- Limitation of liability
(a) The Company will take all reasonable precautions to safeguard property entrusted to us. In the absence of negligence on our part, however, we are not responsible for loss, destruction or damage or unauthorised use by others of such property.
(b) All implied conditions and warranties, statutory or otherwise are hereby excluded.
(c) Thinkbetter Media’s liability (if any) to the Customer shall in all cases be limited to the amount of the job payable by the Customer and in no circumstances shall Thinkbetter Media be liable for any loss of profit or other consequential loss suffered by the Customer.
(d) If Thinkbetter Media is unable to provide any facilities or services agreed to be provided by Thinkbetter Media to the Customer due to circumstances beyond its control Thinkbetter Media shall not be liable for any loss suffered or any sum payable by the Customer as a result thereof.
(e) Thinkbetter Media will make every effort to ensure all delivery deadlines are met and goods are received in good order. Although best efforts are used to guard against any loss arising from the failure of Thinkbetter Media's suppliers, media, or others to perform in accordance with their commitments, Thinkbetter Media is not responsible for failure on their part.
(f) Thinkbetter Media takes no responsibility for the quality of any print or artwork not entirely overseen by Thinkbetter Media.
(g) Thinkbetter Media takes no responsibility for suitability of materials chosen in good faith and in consultation with the Customer, printer, manufacturer or supplier which does not meet the Customer’s expectations for reasons beyond Agent Orange Design’s control.
- Customer’s indemnities
The Customer shall fully indemnify Thinkbetter Media or (where relevant) its sub-contractors, agents or employees from and against all actions, proceedings, claims, demands, damages, fees, costs, losses and expense or other liabilities whatsoever made against or incurred or suffered by Thinkbetter Media or sub-contractors, agents or employees by reason of or in respect of:
(a) any infringement of copyright or trademark or any passing off or any other infringement or interference with any proprietary right or interest of any third party or any civil or criminal action or prosecution for defamation or obscenity or for any breach of any confidence or misuse of any confidential information arising out of any work carried out by on behalf of the Customer;
(b) any breach by the Customer of any of these Terms and Conditions;
(c) the Customer agrees that Thinkbetter Media holds no responsibility for any amendments made by any third party, before or after a design is published.
- Legal Restrictions
Thinkbetter Media's services may be used for lawful purposes only. Submission, transmission, or maintenance of any information or materials in violation of any legal statutes and/or regulations is prohibited. This includes, but is not limited to, material legally judged to be threatening or obscene. Thinkbetter Media reserves the right to refuse service to the Customer without providing reason or cause.
- Law and Jurisdiction
These Terms and Conditions shall be interpreted in accordance with the laws of the City of Johannesburg, and the parties agree to submit to the exclusive jurisdiction of the Johannesburg Courts.
For web and online projects the website terms also apply.