master service agreement
Last updated: April 11, 2024
We appreciate your decision to engage with Prettysimpl (Pty) Ltd for your needs. This Master Services Agreement is designed to outline our mutual responsibilities and expectations. It is crucial to our partnership that you take a few moments to read through this document.
Understanding the terms of this agreement will help us work together more effectively and ensure a successful collaboration. We believe in transparency and open communication, and this document is a testament to that.
MASTER SERVICES AGREEMENT
between
PRETTYSIMPL (PTY) LTD
(the "Company")
Registration number: 2015/415451/07
Address: 33 Parakiet Street, Denvar Park, George, 6529, South Africa
Represented by Cor Schutte - Managing Director
and
YOU
(the "Client")
1. WHAT WE'RE DOING
1.1. We (the Company) will provide services to you (the Client), and you'll accept them based on what's outlined in
this agreement.
2. UNDERSTANDING THE TERMS
2.1. To make sure we're all on the same page, here's what some key terms in this agreement mean:
2.1.1. "Agreement" refers to this document and any additions to it.
2.1.2. “Companies Act” refers to South Africa's Companies Act No. 71 of 2008.
2.1.3. "Copyright" refers to all copyright-related rights tied to our services.
2.1.4. “Data message” is a digital message as defined by South Africa's Electronic Communications and Transactions Act.
2.1.5. “Electronic signature” is a digital signature under the same Act.
2.1.6. "Intellectual Property" refers to all patents, trademarks, copyrights and such tied to our services.
2.1.7. “Personal Data” refers to any personal information as defined in the Protection of Personal Information Act.
2.1.8. "Project" refers to a set task with specific deliverables or outcomes.
2.1.9. “Proposal” refers to any document accepted by the Client that outlines our services and any extra terms and conditions.
2.1.10. “Rate Card” refers to our list of fees for various services.
2.1.11. "Retainer" is a fee you pay in advance to secure our services for future use.
2.1.12. “Services” refers to everything we design, develop, procure or supply.
2.1.13. “Service Deliverable” refers to any product or other deliverable we supply.
2.1.14. "Source Code" refers to the programming code and its documentation tied to our services.
2.1.15. “Third Party Services” refers to services provided by parties other than us.
2.1.16. “Working Day” is any day that's not a Saturday, Sunday or public holiday in South Africa.
2.1.17. "Writing" or "Written" includes electronic communication like email, SMS, Slack and WhatsApp.
3. WHY WE'RE HERE
3.1. You want us to perform services for you under the terms of this agreement.
3.2. We both agree to always act in good faith towards each other.
4. OUR RELATIONSHIP
4.1 Unless stated otherwise, this agreement doesn't create any agency, partnership, or joint venture between us.
5. YOUR CHOICE
5.1 You have chosen us to provide the services, and we're happy to accept.
6. THE AGREEMENT IS IN EFFECT
6.1. This agreement takes effect once it's signed by both parties.
6.2. If sent electronically, it's effective once accepted electronically or signed in print by the last party.
6.3. This agreement applies to all our services unless ended as per the agreement or in writing.
7. WHO OWNS WHAT (INTELLECTUAL PROPERTY IP)
7.1. Original content and intellectual property created specifically for you during our services are free for both of us to use.
7.2. Any pre-existing intellectual property remains with the original owner.
7.3. If we use third-party intellectual property, we'll get the necessary permissions.
7.4. You're responsible for any use of third-party intellectual property not covered by this agreement.
7.5. We retain rights to any business processes and tools we use in our normal business.
7.6. You take responsibility for any costs we may incur due to:
7.6.1. any claim for breach of any third-party Intellectual Property Rights resulting from our use of any intellectual property you provide; and
7.6.2. any content published by you or any third party to any platform or website we manage or maintain for you.
8. WORKING WITH THIRD PARTIES
8.1. You're allowing us to interact with other businesses and use your accounts on other platforms on your behalf.
8.2. You promise to follow the rules of these other businesses. If anything goes wrong because you didn't follow their rules, you agree it's not our fault.
8.3. Sometimes we might hire others to help us provide our services.
8.4. If there's going to be extra charges from these other businesses for the work we're doing for you, we'll get your written okay first before we start any work that's going to add to the bill.
8.5. If there are extra charges from other businesses for the work we're doing for you, you agree to pay them.
9. ABOUT OUR SERVICES & DELIVERABLES
9.1. You'll give us all the info we ask for so we can do our work. If there are delays because you didn't provide what we asked for, it's not on us.
9.2. We'll do our best, but we can't promise that everything we build will be perfect or compatible with all software.
9.3. We'll let you know when something we've developed is ready for you to check out.
9.4. After you've accepted our proposal, we'll make sure our product works as intended for 300 days. But, if you change or misuse it, we're not responsible for any issues.
9.5. Unless we've agreed in writing, our warranty, maintenance, and support services won't cover repairs if any of these situations occur:
9.5.1. You don't follow the terms of our agreement.
9.5.2. There's an unexpected event beyond anyone's control.
9.5.3. Our solutions or deliverables are used incorrectly or mishandled.
9.5.4. Our solutions or deliverables are used outside your regular business activities.
9.5.5. There's a user error from you or anyone else using our solutions or deliverables.
9.5.6. Someone who isn't an approved employee, subcontractor or agent of ours does something or fails to do something.
9.5.7. There's an issue with any utility or third-party service provider.
9.5.8. You integrate or connect any program, plug-in, or device to our solutions or deliverables.
9.5.9. Changes are made to any of our solutions or deliverables without our written permission.
9.5.10. Any username, profile, or password is used without authorization.
9.5.11. Problems arise in any software or solutions that aren't directly or indirectly supplied by us.
9.5.12. You fail to back up data related to any of our solutions or deliverables.
9.5.13. Our solutions or deliverables are used for purposes other than what they were designed for.
9.5.14. There are any other exclusions mentioned elsewhere in this agreement, any proposal, or as agreed in writing.
9.6. If issues arise due to the above situations, we may choose to fix them but will charge you extra for it based on our standard rates or as agreed in a proposal.
9.7. We'll only provide maintenance and support if we agree to it separately, and we'll charge for it.
10. OUR APPROACH
10.1. We'll use an Agile approach when completing projects, meaning we'll adapt and improve as we go along.
10.2. We'll split the project into stages, called Iterations.
10.3. We'll provide the specifics for each Iteration in advance.
10.4. We won't charge you extra for changes if you ask for the changes before we've started working on a stage. Making a change might mean other parts of the project need to change to.
10.5. Changes might impact the overall cost and timelines of a project. We'll discuss this with you to make sure it fits your budget and deadlines.
10.6. Throughout each Iteration, we'll keep looking for ways to make the project better.
10.7. At the end of an Iteration, we may add new tasks or changes to the next stage. We'll give you an estimate of the cost, and you'll have a chance to agree before we start work.
10.8. Documentation is not included in any project by default. If you want documentation for the project, we'll include and cost for this in an Iteration and it'll be subject to the rules in 10.4.
11. KEEPING YOU UPDATED
11.1. We'll regularly let you know how things are going.
11.2. We'll schedule progress meetings as part of each Iteration, and it's included in the cost.
11.3. If you want extra meetings or updates, we can do that, but we'll charge for them.
12. YOUR RESPONSIBILITIES
12.1. You will need to give us the following:
12.1.1. Practical guidance on work or feature priorities;
12.1.2. Relevant and accurate inputs for estimation, planning, and review;
12.1.3. Regular opportunities to review completed work, plan future work, and discuss any arising issues;
12.1.4. Active participation to clarify items and accept delivery during an Iteration;
12.1.5. All available information and resources on design elements, testing details, and additional product-specific requirements as needed.
12.2. You can participate in meetings in person, by phone, or by video call.
12.3. Having access to you will enhance our ability to deliver the Project.
12.4. Neglecting these responsibilities may lead to slower or less satisfactory delivery.
13. OUR RESPONSIBILITIES
13.1. We will design and develop the Project as per the agreed specifications in the Proposal.
13.2. We will work with you to:
13.2.1. Understand the required functionality or specifications;
13.2.2. Build the functionality iteratively and incrementally;
13.2.3. Deliver a working version of the functionality at the end of each Iteration.
14. POTENTIAL CHALLENGES
14.1. You understand that the following might affect our Services, your Fee, or the delivery timeline:
14.1.1. Internet Failure: Major internet downtime in South Africa or elsewhere that affects our access to platforms and/or applications.
14.1.2. Third-Party Service Providers: We can't control changes they make that might significantly impact our Services.
14.1.3. Delays due to Priority Troubleshooting or Support: Sometimes our key resources are required elsewhere. This could impact our timelines.
15. SUPPORT AND MAINTENANCE
15.1 Unless stated in an accepted maintenance and support Proposal, any maintenance, support, updates, or upgrades are discretionary and will be charged additionally.
16. AVAILABILITY AND RETAINERS
16.1. Unless stated otherwise, we can't guarantee resource availability.
16.2. Retainers ensure our resources are available when needed. They are charged even during quiet and holiday periods.
17. ADDITIONAL WORK AND CHANGES
17.1. We decide if we can accommodate additional work or minor changes to finished work.
17.2. We are not responsible or obliged to correct any amendments made by you or any third party.
17.3. Any changes will be charged at the relevant prevailing rate.
18. FEES, INVOICING, AND PAYMENT
18.1. Fees are payable as per the Proposal or prevailing rate. If none are mentioned, our prevailing standard fees apply.
18.2. Any maintenance, support, upgrade and follow-up work are discretionary and will be charged as per our prevailing standard fees.
18.3. A valid tax invoice will be sent to you before the Payment Due Date.
18.4. If you have specific invoicing requirements, let us know when accepting this Agreement.
18.5. Our invoices will detail the Services provided, the billing period, and the fee.
18.6. Unless otherwise agreed, all fees will be invoiced monthly.
18.7. Payments should be made by direct deposit.
18.8. You must email us the proof of payment.
18.9. Invoices are payable within 7 days. Any dispute does not absolve you from payment.
18.10. If you dispute an invoice, notify us in writing promptly with your reasons.
18.11. Overdue amounts attract 10% penalty fee and additional 10% interest every 30 days thereafter.
18.12. You are responsible for any taxes or fees arising from payment for the Services.
18.13. You must pay for any material or travel expenses after approving them.
18.14. All fees and charges are exclusive of VAT unless otherwise indicated.
18.15. We may carry out credit reference checks on you.
18.16. We may request a deposit at any point.
18.17. Retainer fees are due regardless of whether you use all our retained resources or services in any month.
18.18. Failure to pay as per terms may lead to service suspension and access removal.
19. EXPENSES
19.1. You are responsible for all applicable software costs, hosting and license fees.
20. HANDLING YOUR CREDENTIALS
20.1. We don't keep your credentials once a project ends. A project is only active if there's ongoing ad-hoc support
needed, a development initiative, a retainer or a fractional agreement. Simply having this agreement doesn't make a project active.
20.2. We'll remove your credentials and information from our records and system at the end of each project. This means we'll lose access to your systems, platforms and notifications from those platforms.
20.3. If we start a new project, we'll need to regain access to the relevant platforms. There will be a charge for this.
21. SHARING OUR WORK TOGETHER
21.1. We're keen to work with you on marketing opportunities that benefit us both. This could include creating marketing materials, content and case studies about you.
21.2. We may do so unless you tell us not to in writing.
21.3. We may announce our work with you using your visuals and corporate assets, as long as it's public and appropriate.
21.4. We can refer to you and use videos, images or footage of the solution we put in place, but we'll always respect your confidentiality and competitive position.
21.5. We won't share information about a process or tool that gives you an advantage over your competitors.
21.6. When we talk about our work together, we might mention the business problem, our solution, our approach, any challenges and the benefits. But, we'll never share sensitive details about your business.
21.7. We may enter solutions into competitions or contests to recognize our joint work.
22. OWNERSHIP
22.1. We retain ownership of the Project until full payment is received.
22.2. If the project isn't fully paid, we regain ownership and can use it as we see fit.
23. LIABILITY
23.1. You're responsible for evaluating the pros, cons, and potential risks of our services.
23.2. We can't be held responsible for any damages or losses, except when you've asked for and paid for insurance coverage.
23.3. We can't be held responsible for third-party claims, unless covered by insurance. We can share details of our insurance policy on request. You need to ensure the insurance coverage is suitable for your needs.
23.4. We're not liable for the actions of third-party service providers. Our responsibility is to choose these providers carefully and manage your account with them responsibly.
23.5. Apart from what's specified here, we won't be responsible for any other claims including loss of business or profits.
24. CONFIDENTIALITY AND DATA PROTECTION
24.1. Both parties must keep confidential information private, unless:
24.1.1. Required by law
24.1.2. Requested by professional advisors
24.1.3. Needed to fulfill the agreement
24.1.4. The other party has given written consent.
24.2. We both agree to keep personal data confidential and to comply with data protection laws.
24.3. You're responsible for handling personal information in line with privacy laws.
24.4. For this clause, "Responsible Party" refers to you, who determines the purpose and means for processing personal information, and "Operator" refers to us, who processes personal information on your behalf.
24.5. This confidentiality clause will still apply after the agreement ends.
25. EXCLUSIVITY
25.1 Unless we agree otherwise, we can work with other clients, including your competitors.
26. TRANSFER OF RIGHTS AND OBLIGATIONS
26.1 You can't transfer your rights or obligations under this agreement without our written consent.
27. DISPUTE RESOLUTION
27.1. If there's a dispute, the party with the grievance must notify the other party within 7 days.
27.2. If the dispute isn't resolved within 7 days, it may be referred to mediation.
27.3. A mediator will be chosen by both parties. The mediator's decision will be final if it's agreed upon in writing.
27.4. If mediation doesn't work, the issue will go to arbitration based on the Arbitration Foundation of South Africa's rules. The arbitrator's decision is final but can be taken to court.
27.5. Unless we agree otherwise, dispute resolution will take place in Cape Town, South Africa.
27.6. This dispute resolution clause will still apply even if the rest of the agreement ends.
27.7. Both parties must keep up their obligations under the agreement during dispute resolution.
28. TERMINATION AND BREACH
28.1. Unless we agree otherwise, either of us can end our services with one month's written notice.
28.2. If you end our services, we can keep any payments or deposits you've given us.
28.3. If we end our services, we'll refund any remaining deposits, minus the cost of time and materials used up until the termination date.
28.4. Either of us can end this agreement immediately with written notice if the other party breaches its obligations, faces bankruptcy or winding-up, or stops doing business.
28.5. If this agreement is terminated, any rights resulting from a breach of this agreement before the termination will still apply.
29. UNCONTROLLABLE EVENTS
29.1 If things beyond our control happen (like natural disasters, government actions, wars, accidents, or interruptions in power, communication, or transport), we can't be held responsible if we can't do what we promised.
30. COMMUNICATION
30.1. When we need to share official information, here's how it works:
30.1.1. If we send something by courier, it's considered received when it's delivered.
30.1.2. If we mail something, it's considered received 8 days after we post it.
30.1.3. If we email during business hours (8 AM to 4 PM), it's considered received within an hour. If outside these hours, it's considered received at noon the next business day.
30.2. Any written notice or communication we actually get from you counts as adequate notice.
31. NOT USING RIGHTS
31.1 If we don't enforce any right given to us in this agreement, that doesn't mean we've given up that right or any others we have.
32. PROMISES
32.1. Both we and you promise that we can legally agree to this, won't be stepping on anyone else's rights, and have the right people signing this agreement.
32.2. Everything each party promises in this agreement is all we owe each other. No other spoken or written promises count unless they're in this agreement.
32.3. Unless this agreement specifically says so, there's no guarantee that our services or software will fit any particular purpose or comply with any specific conditions, even if we know what those are.
33. OTHER DETAILS
33.1. Even if this agreement ends, anything either party owes the other up to that point still needs to be settled.
33.2. Any changes to this agreement need to be written and signed by both parties. This agreement is the full deal between us.
33.3. We both agree to cooperate and provide any further documents or actions needed to carry out this agreement.
33.4. This agreement can be signed in multiple parts, which all together form one agreement.
33.5. If one party shows leniency to the other, it doesn't stop them from applying their rights later.
33.6. South African law governs this agreement.
33.7. If any part of this agreement isn't valid or enforceable, the rest of the agreement still stands.
33.8. Each commitment in this agreement stands on its own. If one is found invalid, the rest still bind us. If a commitment is too broad but can be narrowed to be valid, it will be.
33.9. Both parties agree they're entering this agreement based only on what's written in it, not on any other promises made.
33.10. This agreement doesn't limit other rights and remedies we might have by law.
ANNEXURE A: RATE CARD
Our rates will be determined and mutually agreed upon during the project contract phase. However, for your reference, you may download our most recent rate card at the link below. Please be advised that these rates are subject to change.
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