Our Professional Services
All services supplied by Cloud Whisper (Pty) Limited, registration number 2017/336455/07 (“Cloud Whisper”) shall be made and supplied on the following terms and conditions.
Cloud Whisper offers the following services:
Social media management to its Clients, including, but not limited to, management of Facebook, Twitter, and Instagram accounts; and
Design services including but not limited to logo design, business card design, menu design, and website design
By accepting and/or receiving the Services, the Client agrees to be bound by this Agreement.
The provision of the social media Services may incorporate the use of third party websites and/or services such as Facebook and Twitter.
In this regard the Client acknowledges that Cloud Whisper does not render legal and contract advisory services and that the Client shall remain solely responsible for familiarizing itself with and complying, as well as ensuring compliance, with the terms and conditions governing the use of those third party websites and/or services.
As at the commencement of this Agreement, certain software forming the platform or a component of the Services may be owned by and/or provided to Cloud Whisper by third party service providers (the “Service Provider/s”);
Cloud Whisper shall be entitled at any time and from time to time to change the identity of any such Service Providers provided that such appointment and/or termination of Service Providers shall not be materially detrimental to Cloud Whisper performance of its obligations and/or compromise the service levels agreed to in terms of this Agreement.
You shall pay our professional fees and specific expenses in connection with the Services. Our fees are exclusive of taxes, VAT or similar charges, as well as customs, duties or tariffs imposed in respect of the Services (other than taxes imposed on our income generally).
We offer packages on a case by case basis, depending on your social media and design requirements. Before engaging with us, you will be provided with a quote detailing the work to be performed together with a cost estimate.
A project fee or fixed fee for a specific piece of work may be negotiated.
Quotes are estimates based on the information on hand and are not binding.
Cloud Whisper may request a deposit prior to commencing design work.
Invoices will be rendered to the Client at the end of each month of completing the Services. Payment is thereafter due within 7 days of receipt.
Please note that our professional rates increase annually, in January of each year.
Unless otherwise specifically instructed, we will address and send our invoices to the person who instructed us.
In the event of the Client failing to timelessly effect payment of any amount due to Cloud Whisper in terms of this Agreement, Cloud Whisper shall be entitled to suspend the provision of the Services in terms of this Agreement for any period in which any payment remains outstanding and charge interest thereon at a rate of 2% per month.
Cloud Whisper reserves the right to charge a reasonable cancellation fee should the Client unilaterally terminate the Services or this Agreement in a manner and/or for a reason not expressly provided for in this Agreement.
The Client agrees that it shall pay all Cloud Whisper expenses in recovering any amounts the Client owes Cloud Whisper, including legal costs on the attorney and client scale, collection charges and tracing fees, and VAT thereon.
To the fullest extent permissible by law, Cloud Whisper disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client utilises the Services at its own risk.
The Client agrees that Cloud Whisper is unable to, and is not required to guarantee a particular result or set of results.
The Client agrees that neither Cloud Whisper nor Cloud Whisper associates shall be liable in respect of any loss, damage or damages however arising and whatever the cause, in particular pursuant to and in furtherance of this Agreement.
Cloud Whisper liability to the Client pursuant to the provisions of this agreement shall furthermore be limited to the total amount of the fees charged and paid by the Client in the year in which the liability arose.
The Client hereby indemnifies Cloud Whisper and Cloud Whisper Associates from any loss, damage, damages, liability, claim, expenses, costs orders or demand which may arise as a result of the Client’s unlawful conduct, willful misconduct and/or gross negligence.
The Client indemnifies and shall keep the Cloud Whisper indemnified against any claim for infringement of intellectual property rights in connection with any information supplied by the Client to Cloud Whisper and against any and all costs, expenses and damages which Cloud Whisper may incur or become liable for as a result of such infringement.
Cloud Whisper shall give the Client prompt notice in writing of any claim being made or action threatened or brought against Cloud Whisper and will permit the Client, at the Client’s own expense, to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
5. Intellectual Property Rights
We may use data, software, designs, utilities, tools, models, systems and other methodologies and know-how (“Materials”) that we own or license in performing the Services. Notwithstanding the delivery of any Services, we retain all intellectual property rights in the Materials and in any working papers compiled in connection with the Services (but not Client Information reflected in them).
Except as otherwise permitted by this Agreement, neither of us may disclose to third parties the contents of this Agreement or any information provided by or on behalf of the other that ought reasonably to be treated as confidential and/or proprietary. Either of us may, however, disclose such information to the extent that it:
Is or becomes public other than through a breach of this Agreement,
Is subsequently received by the recipient from a third party who, to the recipient’s knowledge, owes no obligation of confidentiality to the disclosing party with respect to that information,
Was known to the recipient at the time of disclosure or is thereafter created independently,
Is disclosed as necessary to enforce the recipient’s rights under this Agreement, or
Must be disclosed under applicable law, legal process or professional regulations.
Either of us may use electronic media to correspond or transmit information and such use will not in itself constitute a breach of any confidentiality obligations under this Agreement.
Unless prohibited by applicable law, we may disclose Client Information to other consultants, however, only as required to facilitate performance of the Services, to comply with regulatory requirements, to check conflicts, or for quality, risk management or financial accounting purposes related to the Services.
7. Data Protection
We may collect, use, transfer, store or otherwise process (collectively, “Process”) Client Information that can be linked to specific individuals (“Personal Data”). We will Process the Personal Data in accordance with applicable law and professional regulations. We will require any service provider that Processes Personal Data on our behalf to adhere to such requirements.
You warrant that you have the authority to provide the Personal Data to us in connection with the performance of the Services and that the Personal Data provided to us has been processed in accordance with applicable law.
8. Force Majeure
Neither you nor we shall be liable for breach of this Agreement (other than payment obligations) caused by circumstances beyond your or our reasonable control.
9. Term and Termination
This Agreement applies to all engagements with us and/or Services performed by us.
We may terminate this Agreement, or any particular Services, immediately upon written notice to you if we reasonably determine that we can no longer provide the Services.
We also reserve the right to terminate our Services should you fail to make timeous payment of your account, and remain in default of payment for 30 (thirty days) after written demand to do so.
You shall pay us for all work-in-progress, Services already performed, and expenses incurred by us up to and including the effective date of the termination of this Agreement. Payment is due within 7 days following receipt of our invoice.
You are entitled to cancel our Services, by providing in writing, one calendar months’ notice thereof.
Our respective confidentiality obligations under this Agreement shall continue for a period of 2 (two) years following the termination of this Agreement. The other provisions of this Agreement that give either of us rights or obligations beyond its termination shall continue indefinitely following the termination of this Agreement.
10. Governing Law and Dispute Resolution
This Agreement, and any non-contractual obligations arising out of this Agreement or the Services, shall be governed by, and construed in accordance with the laws of South Africa.
Any dispute relating to this Agreement or the Services shall be subject to the exclusive jurisdiction of the South African courts, to which each of us agrees to submit for these purposes. The parties hereby agree to the jurisdiction of the Gauteng Local Division, Johannesburg.
This Agreement constitutes the entire agreement between us as to the Services and the other matters it covers, and supersedes all prior agreements, understandings and representations with respect thereto, including any confidentiality agreements previously delivered.
You agree that we may, subject to professional obligations, act for other clients, including your competitors.
Neither of us may assign any of our rights, obligations or claims under this Agreement.
If any provision of this Agreement (in whole or part) is held to be illegal, invalid or otherwise unenforceable, the other provisions shall remain in full force and effect.
We may use your name publicly to identify you as a client, but we may refer to you in connection with the Services only if it is a matter of public knowledge that we are providing or have provided Services.