These Standard Terms of Engagement (“Terms”) outlines the key conditions which will apply to all services, as listed on Flume’s website, which can be accessed at www.flume.co.za and www.flume-agency.co.za,from time to time, rendered by Flume to any of its Clients, and includes any deliverables or outcomes as a result of such services (“Services”).

Depending on the nature of the engagement and / or Services required, either a more substantial Master Services Agreement (“MSA”) or a less cumbersome Engagement Letter will have to entered into, determined, by Flume, on a case-by-case basis.

These Terms are subject to the laws of the Republic of South Africa, including but not limited to the Consumer Protection Act 68 of 2008 (“CPA”) and the Companies Act 71 of 2008, where applicable.

By engaging with Flume to provide the Services, the Client confirms that it has read and agrees to be bound by these Terms.

 SERVICE PROVIDER

The Service Provider, referred to as “Flume,” consists of:

• Flume Communications (Pty) Ltd, a company incorporated in the Republic of South Africa.
• Flume Agency B.V. , a company incorporated in the Netherlands.
• Flume Holdings (Pty) Ltd, a company incorporated in the Republic of South Africa.
• Any subsidiary of Flume Holdings (Pty) Ltd.

 SCOPE OF WORKS

The Services to be provided by Flume, are listed and described on our websites, which can be accessed at www.flume.co.za and www.flume-agency.co.za, alternatively in our applicable written proposal, quotation or MSA (“Scope of Works”) and are deemed to be incorporated herein by way of reference . Any work not explicitly listed therein will be deemed outside the Scope of Works.

 COST ESTIMATES

• On request, Flume will provide a cost estimate for the Client’s consideration and approval. The estimates are subject to the exact Services required and the coupled professional rates respectively. Once accepted, Flume will formally engage by means of either an MSA or an Engagement Letter.
• The Client takes note that any cost estimates or quotations provided by Flume are indicative only and not binding unless otherwise stated in writing, or unless an MSA or Engagement Letter has been entered into to that effect. Flume reserves the right to revise such cost estimates or quotations where the Scope of Works is varied or extended by the Client.
• In accordance with section 49 of the CPA, any provisions involving cost escalation or additional charges will be clearly highlighted and brought to the Client’s attention where applicable.

DURATION

These Terms shall commence on the date mutually agreed on and as set out in the MSA or Engagement Letter (“Commencement Date”) and shall continue indefinitely unless terminated in accordance with the provisions set out in clause 6 below.

PAYMENT TERMS

 Unless otherwise agreed to in writing:

• Invoices are payable within 30 (thirty) days of the date of the invoice;
• All prices are exclusive of VAT or any other applicable taxes;
• Payment will be made into the nominated bank account of Flume.

 

CANCELLATION / TERMINATION

Flume may cancel any client agreement upon 30 (thirty) days’ written notice (unless otherwise stipulated in the MSA or Engagement Letter);

• Flume may cancel any client agreement with immediate effect:
• In the event of a material breach by the Client or insolvency proceedings; or
• Provided that all Services rendered and deliverables completed to date, for which payment has been received, are delivered to the Client.

The Client may cancel the agreement upon 60 (sixty) days’ written notice (unless otherwise stipulated in the MSA or Engagement Letter);

• In the event of cancellation by Client, Flume shall be entitled to payment for all Services rendered up to and including the date of cancellation.
• If the Services are cancelled by the Client prior to completion for reasons other than non-performance or undue delay, a reasonable penalty fee may be applicable, subject to the discretion of Flume.
• Flume reserves the right to charge for all work performed and third-party costs incurred up to date of termination.

 If either party materially breaches these Terms and fails to remedy such breach within 10 (ten) business days of written notice, the other party may terminate with immediate effect.

This clause is subject to section 14 of the CPA in relation to fixed-term contracts where applicable.

LIABILITY

Flume disclaims all warranties of any kind, whether express or implied in respect of the Services and the Client use such Services at the Client’s own risk.

The Client understands and agrees that Flume will not be able to guarantee a specific set of results and there is accordingly no warranty as to fitness for purpose.

Flume will not be liable for any loss or damages arising, whatever the cause, in accordance with this Agreement.

Should Flume be found to be liable to the Client for a particular act or omission then Flume’s liability will be limited to fees already paid by the Client on the Project forming the subject of the dispute.

Flume and Client shall each use commercially reasonable efforts to mitigate any losses or other liabilities they may suffer or incur arising under or in connection with this Agreement.

Flume disclaims all warranties of any kind, whether express or implied not recorded in this Agreement in respect of the Services and the Client uses such Services at the Client’s own risk.

The Client understands and agrees that Flume will not be able to guarantee a specific set of results and there is accordingly no warranty as to fitness for purpose.

CHANGE OF SCOPE

If the Client requires any change to the Scope of Works, Flume will issue a revised proposal or variation order reflecting the additional time and cost implications.

 No additional work will be performed until written acceptance of the variation is received from the Client.

A material change (20% or more) to the Scope of Works by the Client would be seen as in effect a cancellation and would require the needed notice period.

THIRD-PARTY COSTS AND ADDITIONAL SERVICES

The Client shall be responsible for all third party costs, including licensing, hardware, software, or other materials required to fulfil the scope of works, unless expressly stated otherwise in writing.

Additional Services requested by the Client that fall outside the Scope of Works will be charged separately at Flume’s prevailing rates, unless expressly included in the proposal or quotation.

DELAYS

Flume shall not be liable for any delays in the delivery of Services caused by factors beyond its control, including but not limited to the Client’s failure to provide required information or approvals. Where delays are attributable to the Client, Flume may revise the project timeline and costs accordingly. 

RIGHT TO SUSPEND SERVICES

Flume reserves the right to, in the event the Client fails to remit payment for any amount due within 60 (sixty) days after the invoice date, to suspend all or any portion of the Services under the Scope of Works until all payments due, plus the interest thereon, are paid in full by the Client.

In the event where the Services were suspended by Flume due to no payment, the relevant project timeline shall automatically be extended by the same period during which Flume has suspended its Services.

ACCOUNT STATUS

No Services or deliverables will be handed over or deployed live unless the Client’s account is up to date.

INTEREST ON LATE PAYMENTS

Interest on overdue amounts will accrue at 2% per month from the due date until the date of payment, calculated daily and compounded monthly, in accordance with the Prescribed Rate of Interest Act, 1975, as amended.

SUPPORT SERVICES

Any additional work, ongoing support, maintenance services or updates required by the Client after the Services have been rendered and the deliverables delivered must be agreed to and quoted for accordingly. Unless otherwise agreed, support services are not included in the initial Scope of Works.

CONFIDENTIALITY

Each Party agrees to treat all non-public information disclosed by the other Party in connection with these Terms, including business, financial, pricing, strategic, and operational information (together, “Confidential Information”), as strictly confidential.

Neither Party shall disclose or use the other Party’s Confidential Information except as necessary to perform its obligations under these Terms, unless:

• required by law or regulatory authority (in which case the disclosing Party will be notified in advance where legally permissible);
• disclosed to personnel or professional advisors on a need-to-know basis, provided they are bound by confidentiality obligations no less protective; or
• such information is independently developed or lawfully obtained without breach of these Terms.

Confidential Information excludes information that:

• is or becomes publicly available through no fault of the receiving Party; or
• was lawfully received without restriction from a third party.

 

Each Party agrees not to use the other Party’s Confidential Information for its own benefit or that of any third party outside the scope of these Terms.

The Parties acknowledge that a breach of this clause may cause irreparable harm. Accordingly, either Party may seek injunctive or equitable relief in addition to other legal remedies.

The Parties make no warranties as to the accuracy or completeness of Confidential Information, and each Party is responsible for independently verifying any information it relies on. The Client remains responsible for the accuracy of all materials it provides to Flume.

Notwithstanding the above, the Client consents to Flume disclosing relevant Client information to third-party influencers engaged by Flume for the purpose of promoting the Client’s business under an influencer agreement.

PROTECTION OF PERSONAL INFORMATION AND CROSS BORDER DATA TRANSFER

Flume may collect, use, store, and process personal information in accordance with the Protection of Personal Information Act, 4 of 2013 (“POPIA”) for purposes reasonably required in relation to the delivery of the Services.

Where necessary, Flume may transfer personal information across borders, provided that the recipient is subject to data protection laws, binding agreements, or policies that provide an adequate level of protection consistent with POPIA. By engaging with Flume, you are accepting these terms, and consent to such processing and transfer of your personal information.

AMENDMENTS

These Terms may be amended from time to time by Flume. The latest version of the Terms will be published on Flume’s website and will apply to all future engagements unless otherwise agreed in writing.

INDEMNITY

The Client agrees to indemnify and hold Flume harmless from and against any and all claims, liabilities, damages, losses, and expenses, arising out of or in connection with the Services provided, to the extent permitted by applicable law.

 INTELLECTUAL PROPERTY

Unless otherwise agreed in writing:

• All intellectual property created by Flume in the course of rendering the Services shall remain the property of Flume until full payment is received by the Client.
• Upon full payment, the Client will receive a non-exclusive, non-transferable licence to use such intellectual property for its internal purposes.
• The Client agrees not to copy, reproduce, or distribute any Flume materials without prior written consent.

 

NON-SOLICITATION

Neither Party shall directly or indirectly engage, solicit, offer work to, or contract with, whether as a director, member, partner, trustee employee or independent contractor any of the other Party’s personnel for a period of 12 (twelve) months after termination of these Terms..

Should any Party breach these provisions, then the soliciting Party shall pay to the other Party an amount equal to 200% (two hundred percent) (“the Penalty”) which amount shall be payable by the soliciting party within 7 days of written demand for payment by the other Party.

FORCE MAJEURE

If either Party is prevented or restricted from carrying out all or any of their obligations under these Terms because of a strike, lock-out, fire, explosion, flood, riot, war, accident, act of God, embargo, legislation, cyber-attack, shortage or a breakdown in transportation facilities, civil commotion, unrest or disturbances, cessation of labours government interference (“the event”), the Party who is affected by this event will be relieved of their obligations under these Terms during the time the event carries on and shall not be liable for any delay or failure in the performance of any obligations under these Terms or loss or damage either general, special or consequential which the other Party may suffer due to the event.     

Once the event has ended the Party who is affected by the event must give notice to the other Party that such event has ended. Should the event continue for a period of more than 90 (ninety) days, the other Party will be allowed to immediately cancel these Terms.

RELATIONSHIP BETWEEN THE PARTIES     

Nothing herein contained shall be interpreted as giving rise to a general partnership or joint venture between the Parties, or constituting the one Party as the employee, agent, representative or officer of the other neither Party shall have the authority or power to bind, or contract in the name of, or to create a liability against, the other in any way for any purpose.

GOVERNING LAW

These Terms, the Engagement Letter, MSA, and any related disputes shall be governed by the laws of the Republic of South Africa.

REGULAR UPDATES

These Terms may be amended from time to time by Flume. The latest version of the Terms will be published on Flume’s website and will apply to all future engagements unless otherwise agreed in writing.

Continued use of Flume’s services after any updates signifies acceptance of the revised terms and conditions.

However, any variations or amendments to the Engagement Letter or MSA must be in writing and signed by both Parties.

GENERAL

These Terms constitute the entire agreement unless supplemented by a signed Engagement Letter or MSA.

If any provision of these Terms is found to be unenforceable, such provision will be severed, and the remainder of the Terms shall continue in full force and effect.

ACCEPTANCE BY YOU OF THESE TERMS AND CONDITIONS SHALL BE DEEMED TO HAVE TAKEN PLACE IN THE EVENT THAT THE CLIENT ENGAGES WITH THE COMPANY FOR THE RECEIPT OF ANY SERVICES OR BY THE USE OF THE WEBSITE. EVERY INSTANCE OF THE SERVICES AND USE OF THE WEBSITE SHALL BE SUBJECT TO THE ABOVE TERMS AND CONDITIONS.