Don’t be that person who doesn’t read the Terms and Conditions. Yes, it can feel soul-destroying, and with so little time and so much life to live, the last thing you feel like doing is being sucked into the vortex of legalese and terms that seem to have been purposefully created to intimidate and confuse you. But it’s one of those things that just have to be done. Read the fine print! For all you know, we might be asking you to sign away your holiday home in Hawaii! Do you really want that? Me thinks not!
Don’t fret so much, though, our legal heroes are nice humans and have made it a quick read for us creative types who get easily distracted by pretty things.
1. PREAMBLE
The following Terms & Conditions apply to all services provided by X Track Marketing. Once you accept a quote verbally or in writing via WhatsApp or Email and proceed with a payment, you accept our Terms & Conditions and will be held liable as follows. It is not a requirement for a client to provide a signed acceptance of these terms and conditions for them to be applicable.
Should you wish to be provided with services, request a quotation for the rendering of services, or engage X Track Marketing as a Service Provider, you agree to the following Terms and Conditions:
2. DEFINITIONS
2.1 ‘Agreement’ shall mean any agreement reduced to writing and agreed upon or any electronic communication by both Parties that has been agreed upon, inclusive of any quotation, order, invoice or otherwise, subject to the Client accepting such quotation, order, invoice or otherwise in writing or by way of electronic communication.
2.2 ‘Service Provider’ shall mean X Track Marketing, or any such other person as may be designated by X Track Marketing from time to time.
2.3 ‘Client’ shall mean anyone who engages the services or requests to engage the services of X Track Marketing.
2. 4 Words importing one gender will include references to all other genders and vice versa; words importing the singular will include the plural and vice versa.
2. 5 Headings are for convenience purposes only and are not intended to be used to interpret any part of these Terms and Conditions.
2. 6 ‘Parties’ shall mean X Track Marketing and Client collectively.
2. 7 Any number of days prescribed in these Terms and Conditions excludes the first day and includes the last day.
2. 8 The words ‘including’ and ‘in particular’ are without limitation.
3. PAYMENTS, BOOKING FEE, RETAINER FEE AND ADVERTISING SPEND
By engaging the services of X Track Marketing, you agree to:
3.1 Make payment of 100% of the service cost upfront as a booking fee on acceptance of any quotation, order, invoice, or otherwise, excluding payment for retainer fees.
3. 2 Make recurring payments of the service cost of any service provided by X Track Marketing in advance every week or within 2 days of each new week starting.
3. 3 Make payment of retainer fees where such retainer fee relates specifically to digital marketing and/or website hosting and/or maintenance packages offered by X Track Marketing, in full and in advance of services, which payment is due on/before the 1st day of each week. Payments not received by the 2nd day of each week will be considered late and attract a non-refundable penalty fee.
3. 4 Accept that all overdue accounts will attract a non-refundable penalty fee of $20 per invoice/ week in accordance with relevant laws and will automatically be added to your next invoice/ week if your contract is on a retainer agreement. Should you not be on a retainer agreement, this amount will be invoiced separately.
3. 5the Accept that payments not received by the due date or the start of a new week will result in work cessation. X Track Marketing reserves the right to refuse completion or delivery of work until past due balances are paid.
3. 6 Use the week's starting date as payment reference when making payment via Electronic Fund Transfer and send proof of payment to x.track@outlook.com
3. 7 Allow X Track Marketing full discretion on how best to utilize the allocated Advertising Spend. X Track Marketing is not obligated to use the full Advertising Spend, as the spend is determined by the deliverables per advert. This will be invoiced accordingly, on completion.
3. 8 X Track Marketing reserves the right to alter or decline to provide a quotation after expiry. Accept that fees and rates charged by X Track Marketing may change from time to time and that the Client will be given one week's notice of such changes if retainer agreements are in place.
3. 9 Accept that expenses incurred on behalf of the Client which are not included on quotations will be billed to the Client separately. Payment is due upon receipt of the invoice.
3. 10 Accept that the cost of purchasing domain names, web hosting, email server, paid advertising, or any other third-party expenses is not specifically included in the initial quotation/ invoice concerning Website Design or marketing services offered by X Track Marketing and will be classified as an expense. The cost for renewing domain names will be for the cost of the Client, and if hosted with any third-party provider, this will be billed for.
3. 11 Understand that urgent projects will affect the previously agreed-upon deadlines of projects already underway, and that the date of completion on a project is affected by feedback and the receipt of content from the Client, and that timelines will be adjusted accordingly.
3. 12 X Track Marketing will not be liable for costs incurred, compensation, or loss of earnings due to the failure to meet agreed deadlines.
4. CANCELLATION, CHANGES TO SERVICES & REFUNDS
4.1 In accordance with Section 17 of the Consumer Protection Act, the Client is entitled to cancel the services provided by X Track Marketing at any time before the services are due to be rendered or next week starts, but subject to X Track Marketing charging a reasonable cancellation fee. Best practice requires a 1-week advance notice in writing from The Client notifying X Track Marketing of the cancellation of service.
4.2 The Client agrees and acknowledges that in the marketing and graphic design industry, bookings for services are taken far in advance before the actual service is due or rendered, on average, 1 week before the service is rendered or the next billing week starts. X Track Marketing will do everything possible to accommodate the Client who requests cancellation of services before such services are rendered, but given the advanced nature of booking of services and the likely loss X Track Marketing will suffer (prospective clients that have been turned down to make this time available to the cancelling Client), this will be considered when charging a cancellation fee.
4.3 Each cancellation will be reviewed on its own merits and according to its own unique circumstances to determine the applicable cancellation fee. As a guideline, the cancellation fee will be dependent on the proximity of the Client’s termination to the date on which the services are to be rendered.
4.4 Please note that X Track Marketing will not offer refunds on any payments made by the Client to X Track Marketing. This includes, but is not limited to, annual website hosting and maintenance plans!
5. NON-SOLICITATION
5.1 The Client warrants and agrees not to solicit any employee, client, or independent contractor of X Track Marketing personally, as well as on behalf of a business enterprise, while engaging with X Track Marketing and for a period of one year thereafter.
5.2 Client hereby warrants that X Track Marketing will suffer irreparable harm if Client breaches the condition above and that monetary damages to the extent of the damage will be for the sole cost of the Client.
6. PERSONAL INFORMATION
The Client acknowledges that X Track Marketing will collect, use and process the Client’s Personal Information for the purpose/purposes of:
• agreeing;
• performing their obligations in connection with the agreement entered into;
• pursuing legitimate interests under the agreement entered into;
• the general administration of the relationship between the Parties.
X Track Marketing undertakes to ensure compliance with all Data Protection Legislation when processing Personal Information of the Client.
7. CONFIDENTIAL INFORMATION
7.1 Shall include but not be limited to:
7.1.1 Technical, business, financial, part, present or future research and development, business activities, products, services, and technical knowledge or marketing information;
7.1.2 proprietary ideas, patentable ideas and/or trade secrets, existing and/or contemplated products and services, production, costs, profit and margin information, finances and financial projections, customers, clients, current and future business plans and models;
7.1.3 tangible materials containing Confidential Information, including, without limitation, drawings, schematics, written or printed documents, computer discs, USBs, tapes, and compact discs (“CDs), whether machine-readable or user-readable.
7.2 The above shall be deemed to be Confidential Information whether inside or outside the field which the Parties disclose to each other in connection with the discussions, and either has been identified in writing as confidential or is of such a nature, or has been disclosed in such a way, that it should be obvious to the Parties that it constitutes Confidential Information whether such information is designated as Confidential Information at the time of its disclosure and which will further include all information that falls within the definition of “Personal Information” as defined in the Protection of Personal Information ACT (“POPI”).
7.3 The Disclosing Party shall retain ownership of all its Confidential Information. Nothing contained in these Terms and Conditions shall create, imply or be construed as to grant the receiving party of Confidential Information any license or other rights in or to the Confidential Information and/or any intellectual property rights attached thereto, or act as a waiver of any rights that the disclosing party may have to prevent infringement or misappropriation of any patents, patent applications, trademarks, copyright, trade secrets, know-how or other intellectual property rights owner or controlled by the Disclosing Party.
8. LIABILITY
8.1 Parties agree to use reasonable care and diligence to perform their respective obligations under these Terms and Conditions. Parties agree to act in good faith and take all actions as may be reasonably necessary to carry out the purpose of these Terms and Conditions.
8. 2 X Track Marketing makes every reasonable effort to secure social media accounts and/or websites designed/maintained by X Track Marketing from malicious attacks. Client accepts full risk for these social media and/or websites designed and/or maintained and holds X Track Marketing, its employees, agents, and/or contractors free of liability, injury, loss, damage, cost penalty, or claim of whatever nature resulting from the use of these social media/websites designed and/or maintained by X Track Marketing.
8. 3 In respect of accuracy, the client assumes full responsibility for acceptance of work or services performed and agreed upon, as well as final proofing and accuracy. X Track Marketing is not responsible for any errors or omissions.
8. 4 To the extent that it is lawful to exclude the following heads of loss and subject to the Client’s obligation to pay the price, in no event shall X Track Marketing be liable for any loss, whether caused by negligence or otherwise.
8. 5 X Track Marketing will not be held liable for failures of performance or poor-quality performance from third-party suppliers.
8. 6 The Client indemnifies X Track Marketing from all liability, claims, and expenses arising from the Client’s unlawful conduct.
8. 7 X Track Marketing does not undertake to guarantee any specific outcome, style, or design, and the Client uses the services at his or her own risk.
9. DISPLAY, PROMOTION AND MARKETING
9.1 The Client hereby grants X Track Marketing the unrestricted right to create, use, edit, and publish content relating to the services provided to Client by X Track Marketing for promotion, advertising, editorial, competition, or otherwise any other purpose and in any manner and medium.
9.2 X Track Marketing may use pictures, videos, or other forms of content created by X Track Marketing for the Client on social media (including Facebook and Instagram), blogs and websites, printed and digital publicity material, exhibitions, competitions, magazines, and other such media as is appropriate for professional quality.
9.3 With website design and/or development projects, the Client’s website will include a link to X Track Marketing’s website either through a small graphic or text placed at the bottom of the page. If a graphic is used, it will be designed to seamlessly fit in with the Client’s website design.
10. NOTICES (DOMICILIUM)
10.1 Any notices or other documents to be served under these Terms and Conditions may be served at the address provided by X Track Marketing and the Client by way of electronic communication or under any written documents provided by the Client to X Track Marketing
10.2 All notices given in terms of these Terms and Conditions shall be in writing, and any notice given by one party to the other which is sent by e-mail to the addressee’s e-mail address shall be deemed to have been received by the addressee on the 1st (first) business day after the date of transmission thereof.
10.3 Notwithstanding anything to the contrary contained or implied in these Terms and Conditions, a written notice or communication actually received by one of the Parties from the other, including by way of e-mail, shall be adequate written notice or communication to such party.
11. TERM
11.1 The Parties obligation under this Agreement and under these Terms and Conditions shall commence once agreement has been reduced to writing and agreed upon or any electronic communication by both Parties that have been agreed upon, inclusive of any quotation, order, invoice or otherwise, subject to the Client accepting such quotation, order, invoice or otherwise in writing or by way of electronic communication and shall continue until such a time as X Track Marketing has completed the service/order or otherwise agreed between the Parties in writing, where after such obligation shall terminate.
11.2 With respect to retainers and social media packages, Client acknowledges that X Track Marketing requires 1 week's notice. Failure to provide such notice will attract a cancellation fee.
12. BREACH
12.1 If the Client breaches any provision of these Terms and Conditions and fails to remedy such breach within 3 business days of receipt of a written notice from X Track Marketing requiring it to do so, then X Track Marketing will be entitled without notice, at its option:
12.1.1 to seek immediate specific performance of any of the defaulting party’s obligations under this Agreement and Terms and Conditions, whether or not such obligation is then due; or
12.1.2 to cancel any Agreement between the Parties, in which case written notice of the cancellation shall be given to the Client and the cancellation shall take effect on the giving of notice;
12.1.3 and in either event, X Track Marketing shall be entitled to claim any damages it has suffered.
12.2 X Track Marketing’s remedies in terms of this clause are without prejudice to any other remedies to which X Track Marketing may be entitled at law.
13. UNDUE DELAYS
13.1 In the event of there being a delay with the completion and rendering of services by X Track Marketing where the Client is responsible for such delay, X Track Marketing will request that such delay be remedied by calling on information/documentation to allow X Track Marketing to fulfil its obligations, such information/documentation being provided within 2 days of being called upon to do so. Failure by the Client to provide the documentation and information requested by X Track Marketing will constitute Breach, and the Client will be placed on terms.
14. FEEDBACK, REVISIONS, AND APPROVALS
14.1 In respect of design work, including websites, performed by X Track Marketing, the Client will be requested and allowed to make changes on three separate occasions (unless otherwise agreed to within the services agreement) to the design by X Track Marketing. The Client may request significant changes in the 1st and 2nd cycles. By the 3rd cycle, the Client’s requests shall be modifications of the current composition only. Revision requests that depart from the current composition will be quoted on.
14.2 The Client will have 1 business day, upon request to do so, to review and approve services and designs rendered by X Track Marketing. At the end of said time, if no answer has been given by the Client to X Track Marketing, the work will be considered approved, and X Track Marketing will continue their work or accept the service/design to have been completed/rendered.
14.3 Should Client request revisions to services which are accepted as completed/rendered, Client acknowledges that such revisions and changes will be billed for over and above that which was initially quoted at a rate of $30 per hour or at a fixed amount agreed between Parties.
14.4 Any work in progress that is held up by the Client for more than 1 day will be billed according to the amount of work that has been completed. This is payable on receipt of the invoice. Work can then be re-commenced once the Client is ready. At this point, rescheduling of the project will occur based on capacity in the studio at the time. All work remains the property of X Track Marketing until final payment is received.
15. OWNERSHIP OF INTELLECTUAL PROPERTY
15.1 X Track Marketing does not provide open files, which include but are not limited to templates and vector logos, to Clients. These files remain the property of X Track Marketing.
15.2 Print-ready artworks and versions of JPEG’s, PNGs, PDFs, and GIFFS can be provided to Client on request and at the sole discretion of X Track Marketing. Further, print-ready artworks and versions requested by the Client and provided by X Track Marketing may be charged for by X Track Marketing.
15.3 Website domains purchased by X Track Marketing on your behalf remain the property of X Track Marketing unless transfer of such domain is requested and paid for in full at the time of transfer.
15.4 When handing over any logins and passwords, X Track Marketing will provide these details in writing via email/ text. The Client will have 1 day from the date that the email/ text was sent to accept and update any relevant details. Should the Client delay in accepting the transfer and/or updating the details and request assistance after the initial 1-day period, the Client accepts that this assistance will be billed at a rate of $30 per hour. Please note that X Track Marketing cannot guarantee assistance should the details have expired, or we no longer have the logins and passwords saved on our system. Once logins and passwords are provided, X Track Marketing no longer accepts any liability. It is the Client’s responsibility to safeguard and secure all logins and passwords once provided.
16. FORCE MAJEURE
16.1 X Track Marketing is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
17. GOVERNING LAW AND JURISDICTION
17.1 These Terms and Conditions will be interpreted, governed, and construed by the laws of the United States of America, and not limiting the jurisdiction that any other court may have.
18. GENERAL
18.1 Neither party shall assign, cede, or transfer all or part of its rights under these Terms and Conditions without the written consent of the other party.
18.2 No failure by X Track Marketing to enforce any term of this Agreement and Terms and Conditions will constitute a waiver of such term or affect in any way X Track Marketing’s right to require the performance of such term at any time in the future, nor will a waiver of a subsequent breach nullify the effectiveness of the term itself.
18.3 If any term or part of any term in these Terms and Conditions, for whatever reason, including a decision by any court, any legislation or any other requirement having the force of law, declared or becomes unenforceable, invalid or illegal, the remainder of these Terms and Conditions shall not be affected and the invalid provision or part shall be replaced or amended, so far as it is necessary to maintain the purpose and continuity of these Terms and Conditions.
18.4 Parties agree that services performed by X Track Marketing, its employees, or agents shall not be deemed to constitute a partnership, joint venture, agency relationship or otherwise between Parties.
Lets just agree to be good humans who treat each other with respect!
Please note that X Track Marketing doesn't offer any Refunds for any reason.
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x.track@outlook.com
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