TERMS AND CONDITIONS BETWEEN CLIENTS AND OSTARA STUDIO
The following Terms and Conditions apply to all products and services provided by Ostara Studio
(hereinafter referred to as “Ostara Studio”)
- Ostara Studio is a business specializing in branding, marketing, and content creation.
- Content refers to copy, digital designs, print designs, photographs, videos, content for marketing purposes, and content for brand purposes.
- Ostara Studio will consider the instruction from the Client once a meeting has been attended with the Client.
- The initial instruction will be at the premises of Ostara Studio offices, the Client’s offices (within a radius of 10km of Blairgowrie), via video call or phone, at a time convenient to all.
- All necessary and relevant information will be provided to Ostara Studio as the Client deems necessary or as Ostara Studio may require from time to time, including but notwithstanding, brand guide, logos, designs that communicate existing brand or visuals, information regarding the Client’s audience and competitors, that support brief.
- The purpose is to ensure that Ostara Studio and Clients evaluates and formulates content, planning strategies matching the Client’s requirements and the Client agrees to make such information as may be required by Ostara Studio from time to time.
- If this information is not provided, the Client will be held accountable for all content and strategies created by Ostara Studio and will thus be accountable to settle the relating account.
- In the event that a delivery date has not been specified in the initial briefing consultation, payment will be required upon invoice date.
- Ostara Studio does not offer changes, revisions or variations on content or strategies and plans under the original brief, subject to the terms and conditions set out below. Ostara Studio will not charge for additional changes provided that the revisions have been communicated in the initial consultation and agreed upon in writing. Alternatively, a new quotation for such services is prepared and the Client has accepted such quotation for additional services and such changes will only be released upon payment in full of all outstanding accounts.
- Upon completion of instruction, the Client will have 3 business days to review content. Ostara Studio offers minor and reasonable changes at no extra cost, which will be discussed and agreed upon before finalisation, alternatively refer to 1.8 above. This may extend the initial delivery date depending on notification of change and time spent on change by Client. Ostara Studio will give the Client notice of change of delivery if this happens by invoicing the additional work.
- In the event that the Client has not contacted Ostara Studio within the allocated 3 business days, Ostara Studio will accept that the content is in standing order and invoice can be submitted for payment to the Client.
- The headings of the clauses in this Agreement are for the purposes of convenience and reference only and shall not be used in the interpretation of, nor modify nor amplify the terms of this Agreement nor any clause hereof. Unless a contrary intention clearly appears –
- Words importing: any one gender includes the other two genders; the singular includes the plural and vice versa; anda natural person includes juristic persons (corporate or unincorporated) and vice versa;
- References to clauses and annexures are to the clauses and annexures of this Agreement; references to paragraphs are to paragraphs of the relevant annexures to this Agreement.
- If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.
- The expiration or termination of this Agreement shall not affect the provisions of this agreement.
- All work is carried out by Ostara Studio on the understanding that the Client has agreed to Ostara Studio’ s terms and conditions.
- The definitions and rules of interpretation in this clause apply to this Agreement:
- “Acceptance” means the issue of an acceptance by the Client, which will constitute the Client’s acceptance of the services, quote and/or tender for service – in the form of either written or e-mail confirmation,
- “Acceptance Date” means the date on which the Client issues the acceptance to Ostara Studio for the services offered;
- “Agreement” means the agreement to supply the services quoted to the Client;
- “Charges” means the price quoted by Ostara Studio from time to time for the services and related expenses and disbursements;
- “Commencement Date” means the date of acceptance of quotes by the Client in writing or such means as accepted by Ostara Studio, upon which these terms and conditions will apply;
- “Confidential Information” means the content and/or information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information or such further information as set out herein;
- “Content” in the event of the Client, means the content supplied by the Client to provide the services. In the event of Ostara Studio, it refers to content supplied to the Client by Ostara Studio.
- “Contract Period” means a period required to complete the service, as determined at the sole discretion of Ostara Studio;
- “Client” means the person to whom the quote for the services are tendered and/or accepted and the services are rendered;
- “Electronic Signature” means (in relation to any written document communicated electronically) the scanned version of the hand signature of the author of the written document and any other method used to identify the author;
- “Intellectual Property Rights” means all the servies and products produced by Ostara Studio;
- “Notice” means a written document carrying the signature of either party;
- “Party” means either the Client or Ostara Studio Design, unless the content indicates the contrary;
- “production” means the process of making film, video, information, concepts and media from the instruction from the Client;
- “retouching” means improve or repair media or services or products by making additions or alterations;
- “services” means the photography, video recording, graphic design and combinations of the aforementioned services provided by Ostara Studio from time to time to the Client as set out on the quote provided to the Client;
- “Ostara Studio” means Ostara Studio and/or duly authorised representatives of the company.
- APPOINTMENT AND COMMENCEMENT
- The Agreement will commence on the Commencement Date.
- Unless otherwise terminated in terms of the Agreement, the Agreement will automatically terminate upon the expiry of the Contract Period.
- RIGHTS AND OBLIGATIONS OF THE CLIENT
- The Client will use its reasonable efforts to:
- Undertake promptly to provide Ostara Studio with all information, assistance and materials that Ostara Studio may require from time to time to facilitate the proper and timely performance of the services to the Client.
- In particular (but without limitation) the Client agrees to:
- notify Ostara Studio of any inquiries related to the Client from any of the services;
- advise Ostara Studio well in advance of any changes required to the services;
- to permit Ostara Studio (by its representatives) to attend meetings, when reasonably necessary;
- Advise and inform Ostara Studio of any changes that can and could possibly affect the services and deadlines in any manner whatsoever.
- The Client warrants that to the best of its knowledge and belief, all information provided by it to Ostara Studio is accurate and complete and the Client has the authority to act with the information provided to Ostara Studio.
- The Client agrees only to communicate and liaise directly with Ostara Studio. –
- The Client will use its reasonable efforts to:
- RIGHTS AND OBLIGATIONS OF THE OSTARA STUDIO
- Ostara Studio:
- shall provide the services using competent, trained staff;
- agrees to support and maintain the services during the Contract Period; and
- will not provide continuing support services to the Client other than set out in the quote or set out in this agreement;
- shall perform the services with reasonable skill and care, to a standard to be reasonably expected.
- Ostara Studio may appoint sub-contractors to perform any of the services. Ostara Studio shall use reasonable care and skill in the selection and appointment of suppliers and the agreement of the terms and conditions of such appointment, the costs of which will be for the Client’s account.
- Ostara Studio:
- All cancellations and variations must be in writing.
- Ostara Studio reserves the right to determine cost of labour and services up to date of cancellation, expenses, in the event that the Client cancels an order.
- Cancellation by Client will automatically result in the forfeiture of the deposit.
- In the event that a event, consultation, or photographic session has been cancelled or postponed, Ostara Studio has the right to retain the deposit or booking fee as a cancellation fee. The booking can be rescheduled, subject to such additional charges as Ostara Studio may charge from time to time.
- The Client may at any stage during the existence of the Agreement, change any aspect of the services if:
- Ostara Studio has been notified of the changes by way of a Notice by the Client; and
- Ostara Studio has notified the Client by way of a Notice that the changes are executable; and
- the Contract Period is extended with not less than the same number of days resulting from the changes will be directed by Ostara Studio; and
- Ostara Studio has had an opportunity to adjust their costing which shall be for the account of the Client;
- The Client agrees that variations required over and above the acceptable quotes will be liable to a separate charge.
- The Client also agrees that Ostara Studio holds no responsibility for any variations made by any third party before or after a design is published.
- In addition to the above, should the variation cause expenses to be incurred such as, but not limited to change of venue, accommodation, food, and costs to have the service finalised such variation quote must first be submitted, approved and new deposits paid before continuation of the services.
- Accommodation and travel will at all material times be arranged by Ostara Studio for the Client’s account.
- The Parties must arrange a meeting as and when required after the commencement date:
- to determine if the services are acceptable;
- to determine the date of completion;
- to determine Ostara Studio’s instructions; and
- to determine any possible variations.
- Any indication given by Ostara Studio of a projected duration is to be considered by the Client to be an estimate. Ostara Studio cannot be held responsible for any project over-runs, delays and/or wastage, whatever the cause.
- Estimated contract period should be deemed to be from the commencement date.
- Ostara Studio makes no warranties of any kind, express or implicated, for any and all products and/or services that it supplies. Ostara Studio will not be held responsible for any and all damages resulting from products and/or services it supplies or after any delays in presenting the services or use of any third parties in providing the services, such but not limiting production companies, suppliers of equipment, material and related services.
- Ostara Studio 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. Ostara Studio will not knowingly perform any actions to contravene these terms and conditions and the Client also agrees to be so bound.
- Ostara Studio shall be entitled to charge a fee of 10% on any supplies required, which supplier’s terms and conditions shall apply to the Clients, and secured by Ostara Studio.
- All design work will be approved by the Client and written approval given before Ostara Studio will release it for publication or print. Whilst all efforts will be made by Ostara Studio to ensure the accuracy of work, no liability can be accepted by Ostara Studio for errors not highlighted by the Client prior to written approval for publication or print.
- Images which are supplied will be in an electronic format or in a format prescribed by Ostara Studio.
- Ostara Studio cannot be held responsible for the quality of any images which the Client wishes to be scanned from print materials.
- Delivery date to be agreed upon during initial brief and accepted on acceptance of proof and quotation.
- Delivery dates are not guaranteed. The turnaround time may change from time to time depending on availability and Client’s briefing and feedback.
- Ostara Studio takes utmost care of the Client’s products and ensures that artwork is delivered on time. In the unfortunate event of damage, loss or delay of artwork due to postage, courier, email, the Client indemnifies and holds Ostara Studio blameless. The Client can arrange alternative collection or delivery at his/her discretion and expense.
- Photographs and videos created by Ostara Studio will not be released without artist’s retouching and editing. Retouching and editing is done accordance to Ostara Studio’s style. Ostara Studio will provide portfolio links for Client to vide style. Retouching and editing is based on the professional artist’s judgement.
- Please note colour variations can occur from different electronic representations and printed variations. The Client takes responsibility to ensure colour is accurate. Reprints and re-designs will be at the expense of the Client.
- All services and/or goods are supplied at current prices and are subject to change without prior notice.
- The Parties must arrange a meeting as and when required after the commencement date:
9.1 No work on an instruction will commence until written acceptance of the quotation has been received by Ostara Studio and deposit received.
9.2 Cancellation of services are only accepted via email or by formal notification in writing.
9.3 The Client will then be invoiced for all work completed over and above the non-refundable deposit that will have been made at the time of first accepting.
9.4 The balance of monies due must be paid on receipt of the final invoice. Please note: any cancellation which is not formally confirmed and accepted in writing will be liable for the full quoted cost of the project.
9.5 The placement of an order for design and/or any other services offered by Ostara Studio, by email, verbally or in writing, is deemed to be acceptance of these terms and conditions
- Whilst every effort will be made by Ostara Studio to give professional advice to the Client, the Client shall keep Ostara Studio fully indemnified against any costs, claims, procedures or demands arising out of or in connection with any publications, use of venue or other material prepared for the Client by Ostara Studio.
- The Client is responsible and accountable for approving all artwork proofs (in the case of graphic design and print jobs) and has to ensure accuracy and suitability. This includes, but is not limited to spelling, grammar, colour, illustrations, images, quantity, font and sizes.
- The Client is also responsible for accurate briefing. Ostara Studio will not be held responsible for dissatisfaction of any sort by the Client, as an initial briefing consultation and briefing period is assured for transmittance of ideas and requests.
- Reprints of proofs and final work will be performed at the Client’s own expense.
- In the event that the Client would like to submit own artwork for briefs or print jobs, the Client must ensure that print ready, high quality/ resolution artwork is submitted. Ostara Studio will not take responsibility for poor quality (blurry, out of focus, and does not fit size) of Client’s artwork.
- The Client holds the responsibility to inform Ostara Studio of any confidential information or artwork submitted by the Client.
10.1 The Client will pay Ostara Studio an initial non-refundable deposit, to be set by Ostara Studio.
10.2 The balance of the payment is due before the final services will be released. The signed or accepted quote with payment of the deposit is understood to be an acceptance of the terms and conditions.
10.4 Payments may be made by online transfer, cash. Publication and/or release of work undertaken by Ostara Studio on behalf of the Client may not take place before cleared funds have been received.
10.5 Ostara Studio reserves the right to consider an account to be in default in the event of a returned cheque, funds not reflected within a reasonable period of time after undertaking the payment.
10.6 An account shall be considered to be in default if it remains unpaid for 3 days from the date of invoice, or following a returned cheque during which Ostara Studio can suspend services and/or supply until payment has been effected.
10.7 Clients whose accounts become in default agree to pay Ostara Studio reasonable legal expenses and third party collection agency fees in the enforcement of these terms and conditions.
10.8 Quotations are valid for 5 business days.
10.10 Ostara Studio will after receipt of the deposit and services had been rendered provide an invoice for the remaining costs to the client:
10.11.1 In the event of graphic design an invoice will be created upon completion of artwork and the Client to make payment in full before artwork is released and delivered;
10.10.2 In the event of photography, the remaining balance is due 5 days prior to event or shoot;
10.10.3 In the event of marketing strategies and/or monthly retainer contracts, payment is due on the 1st of each month, in advance.
10.10.4 In the event of professional consultations, payment is to be made in full before scheduled consultation.
10.10.5 In the event that travel is not in Johannesburg, and further than the Vaal Triangle area or Pretoria Ostara Studio shall be entitled to charge such additional costs for travelling, accommodation and such reasonable costs to secure Ostara Studio’ s presence and/or availability.
Either party may terminate this Agreement if the other Party commits a material breach and fails to remedy such breach within 7 days after written notice given by the other party and claim either specific performance and/or such damages it may sustain.
12.1 Each of the Parties hereby warrants to and in favor of the other that–
12.1.1 it has the legal capacity and has taken all necessary corporate action required to empower and authorised it to enter into this Agreement;
12.1.2 this Agreement constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms;
12.1.3 this Agreement does not contravene any law or regulation to which any Party is subject;
12.1.4 to the best of its knowledge and belief, it is not aware of the existence of any fact or circumstance that may impair its ability to comply with all of its obligations in terms of this Agreement;
12.1.5 it is entering into this Agreement as principal (and not as agent or in any other capacity);
12.1.6 the natural person who signs and executes this Agreement on its behalf is validly and duly authorised to do so, vailing which the natural personal shall be held liable in his/her personal capacity for the terms and conditions contained herein; and
12.1.7 no other party is acting as a fiduciary for it.
13 INTELLECTUAL PROPERTY RIGHTS
13.1 Intellectual property rights in and to the services.
13.1.1 Ownership of all rights, including Intellectual Property Rights, in and to the services vest in Ostara Studio and/or third party software providers.
13.1.2 Ostara Studio warrants that it has acquired all necessary licenses in and to third party software, where required in law and in contract.
13.2 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 Ostara Studio holds no responsibility for any amendments made by any third party before or after a design is published.
13.3 Any design, copywriting, drawing, idea or code created for the Client by Ostara Studio, or any of its contractors, is licensed for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express written consent of Ostara Studio and any of its relevant sub-contractors.
13.4 All design work – where there is a risk that another party makes 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.
13.5 Ostara Studio will not be held responsible for any and all damages resulting from such claims. Ostara Studio is not responsible for any loss, or consequential loss, non-delivery of products or services, of whatever cause. The Client agrees not to hold Ostara Studio responsible for any such loss or damage. Any claim against Ostara Studio shall be limited to the relevant fee(s) paid by the Client.
13.6 The Client agrees to Ostara Studio’ s definition of acceptable means of supplying data to the company.
13.7 Ostara Studio reserves the right to delete documentation and artwork with accounts outstanding for more than 30 days. Artwork will remain the ownership and copyrights of Ostara Studio.
13.8 The Client(s) hereby allow(s) Ostara Studio to display any content covered by this contract and to generally promote the business in advertising, brochures, magazine articles, websites, social media, sample albums etc, subject to the terms and conditions contained herein.
13.9 It is the Client’s responsibility to ensure that artwork submitted does not violate any copyright laws, trademarks and patents. Royalties must be paid for use of artwork from other artists and designers.
13.10 Upon full payment of account, copyright ownership will be transferred to the Client for exclusive use – transferable rights to brand identity, as well as full licensee to reproduce works through commercial printers.
13.11 Ostara Studio retains the rights to utilize artwork for self-promotion, publication and exhibition.
13.12 Ostara Studio aims to keep artwork and photographs safe from any malicious activity but cannot be held liable or accountable for malicious actions carried out by persons other than Ostara Studio employees.
13.13 The use of artwork, music and media prior to payment is illegal.
13.14 Ostara Studio reserves the rights to contract with other creative professionals. Any third party terms and conditions will include full reproduction rights to the Client. Third parties also retain rights to utilize artwork for self-promotion.
13.15 In the event of cancellations or non- payment, the use of any artwork and design work provided by Ostara Studio during the briefing, initial consultation and proofing process without written permission is illegal and legal action will ensue.
13.16 Replication and use of any of Ostara Studio designs without license or permission is illegal and legal action will ensue.
14 LIMITATION OF LIABILITY
14.1 The parties agree that, in the event of a breach of any of the provisions of this Agreement, the defaulting party shall be liable to the other party for all losses which constitute direct and/or general damages, save for the conditions contained herein.
14.2 Ostara Studio shall not be liable for direct -, indirect -, incidental -, special -, consequential or exemplary damages resulting from any aspect of use of the services offered thereon by the Client.
14.3 Similarly the Client indemnifies Ostara Studio against any damage and/or loss suffered from equipment being brought onto the production or services and is damaged during the course of such a production or damage to the venue and/or service providers due to instruction being performed.
15.1 each Party may be given access to information of the other party in order to perform its obligations under this Agreement. A party’s information shall not be deemed to include information that:
15.1.1 is or becomes publicly known other than through any act or omission of the various parties;
15.1.2 was in the other party’s lawful possession before the disclosure;
15.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
15.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
15.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
15.2 Each party shall hold the other’s information in confidence and, unless required by law, not make the other’s information available to any third party, or use the other’s information for any purpose other than the implementation of this Agreement.
15.3 Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access, is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
15.4 Copyright is retained by Ostara Studio on all creative design work including media developed and/or produced, campaigns, slogans, pictures, ideas, visuals and illustrations unless specifically released in writing and after all costs have been settled to Ostara Studio.
15.5 If a choice of design is presented, only one solution is deemed to be given by Ostara Studio as fulfilling the contract. All other designs remain the property of Ostara Studio, unless agreed in writing that this arrangement has been changed.
15.6 Ostara Studio is authorised to use any material produced during any instruction for its own use and publication unless expressly instructed not to by the Client in writing, which obligation will rest on the client.
16 FORCE MAJEURE
16.1 Neither party shall have any liability to the other party for any losses which are a result of such party’s failure to perform under this Agreement to the extent that such party is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes, an act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or accident, fire, flood, or storm.
17.1 A waiver of any right under this agreement is only effected if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
18.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
18.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the Parties.
- ENTIRE AGREEMENT
19.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
19.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
20.1 Ostara Studio shall not, without the prior written consent of the Client, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.2 The Client may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
21.1 Each of the parties chooses their respective addresses, for the purposes of giving any notice, the payment of any sum, the serving of any process and for any other purposes arising from this Agreement, as set forth herein.
22 GOVERNING LAW AND JURISDICTION
22.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and constructed in accordance with the laws of South Africa.
23 EXECUTION IN COUNTERPARTS
23.1 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement as at the date of signature of the Party that signs its counterpart last in time.