Master Terms and Conditions governing the supply of Aerion's services.
Each accepted quotation, these terms and any signed service agreement work together. The quotation controls the specific scope, price, timeline and deliverables. Please pay particular attention to deposits, cancellations, revisions, intellectual property, source files, portfolio use, privacy and limitations of liability.
Important: Nothing in these terms removes rights that cannot lawfully be excluded under South African law.
In these Master Terms and Conditions, unless the context clearly indicates otherwise, the following words and expressions shall bear the meanings assigned to them below, and cognate expressions shall bear corresponding meanings:
“Aerion”, “we”, “us” or “our” means van Heerden and Sons (Pty) Ltd (Registration Number 2024/559827/07), a private company duly incorporated in accordance with the company laws of the Republic of South Africa, trading as “Aerion Branding” and “Aerion Marketing”, together with its successors-in-title and permitted assigns;
“Aerion Branding” means the trading division of Aerion responsible for the supply of branding, creative, design, print, promotional product and related Services;
“Aerion Marketing” means the trading division of Aerion responsible for the supply of marketing, digital, advertising, social media and related Services;
“Agreement” means collectively, these Master Terms and Conditions, together with any applicable Quotation, Client Service Agreement, Statement of Work, or other written or electronic document that incorporates these Master Terms and Conditions by reference, all of which shall be read together as a single agreement;
“Business Day” means any day other than a Saturday, Sunday, or official public holiday in the Republic of South Africa;
“Client”, “you” or “your” means the natural or juristic person who accepts a Quotation, signs a Client Service Agreement, or otherwise engages Aerion for the supply of Services;
“Client Service Agreement” means the short-form agreement referred to in the accompanying Client Service Agreement document, which incorporates these Master Terms and Conditions by reference;
“Confidential Information” means has the meaning given to it in clause 27;
“CPA” means the Consumer Protection Act 68 of 2008, together with its regulations, as amended from time to time;
“Deliverables” means all works, materials, designs, files, strategies, content, code, media and other output produced by Aerion for the Client pursuant to the Agreement;
“Deposit” means the upfront, non-refundable (save as expressly provided) payment required prior to commencement of Services, as set out in clause 6;
“Intellectual Property” or “IP” means all intellectual property rights of whatsoever nature, including copyright, trademarks, trade names, designs, patents, know-how, trade secrets, domain names and any similar rights, whether registered or unregistered, and whether arising under South African or foreign law;
“Personal Information” means bears the meaning ascribed to it in POPIA;
“POPIA” means the Protection of Personal Information Act 4 of 2013, together with its regulations, as amended from time to time;
“Portfolio Rights” means has the meaning given to it in clause 26;
“Quotation” means any written estimate, proposal, quote or scope of work issued by Aerion to the Client, whether in the form of a formal document, email, or online proposal tool;
“Services” means collectively or individually as the context requires, the branding, marketing, digital, creative, consulting and related services offered by Aerion, including but not limited to those listed in clause 1.1 of the Client Service Agreement and clauses 14 to 21 of these Master Terms and Conditions;
“Source Files” means the original, editable, layered working files used by Aerion to produce the Deliverables, as more fully described in clause 25;
“Website” means https://aerionbranding.com, or such other website operated by Aerion from time to time;
“Working Files” means has the same meaning as Source Files;
1.1 Headings in this document are for convenience only and shall not affect the interpretation of any clause.
1.2 A reference to a “clause” is a reference to a clause of these Master Terms and Conditions unless otherwise stated.
2.1 Words importing the singular include the plural and vice versa; words importing one gender include the other genders; and words importing natural persons include juristic persons and unincorporated bodies of persons, and vice versa.
2.2 Any reference to an enactment is to that enactment as amended, re-enacted, or substituted from time to time.
2.3 Where any term is defined within a particular clause, that term shall bear the meaning ascribed to it in that clause wherever it is used in this Agreement, notwithstanding that the definition appears elsewhere than in clause 1.
2.4 If any provision in a definition confers substantive rights or obligations on a party, effect shall be given to it as though it were a substantive provision of this Agreement, notwithstanding that it is contained in the definitions clause.
2.5 The rule of construction that an agreement shall be interpreted against the party responsible for its drafting shall not apply to this Agreement.
2.6 Where figures are referred to in numerals and words, and there is a conflict between the two, the words shall prevail.
2.7 The expressions “include”, “including” and “in particular” shall be construed as illustrative and shall not limit the generality of any preceding words.
2.8 In the event of any conflict between these Master Terms and Conditions and a Client Service Agreement, Quotation, or other document forming part of the Agreement, the order of precedence shall be: (a) the applicable signed Client Service Agreement; (b) the applicable accepted Quotation; and (c) these Master Terms and Conditions, save that no such document may derogate from clauses 22 to 26 (Intellectual Property, Copyright, Licensing, Source Files and Portfolio Rights) or clause 28 (POPIA) unless expressly and unambiguously varied in writing and signed by a duly authorised representative of Aerion.
3.1 These Master Terms and Conditions apply to every Quotation issued, and every Client Service Agreement concluded, by Aerion Branding and/or Aerion Marketing, and form an integral part of any resulting agreement between Aerion and the Client.
3.2 The Agreement is formed, and becomes binding on the Client, upon the earliest of: (a) the Client's written acceptance of a Quotation (including acceptance by email or by clicking “accept” on an online proposal tool); (b) the Client's signature (including electronic signature) of a Client Service Agreement; (c) payment of a Deposit or any invoice issued by Aerion; or (d) the Client instructing Aerion to commence, or Aerion commencing, performance of the Services with the Client's knowledge.
3.3 By engaging Aerion in any of the manners described in clause 3.2, the Client acknowledges that it has read, understood, and agrees to be bound by these Master Terms and Conditions in their entirety, whether or not the Client has signed a physical copy thereof.
3.4 Where the Client is a juristic person, the individual accepting these terms on the Client's behalf warrants that they are duly authorised to bind the Client.
3.5 Aerion may, in its sole discretion, decline to accept any instruction, Quotation request, or engagement, without being obliged to furnish reasons.
3.6 These Master Terms and Conditions may be updated by Aerion from time to time in accordance with clause 39. The version in force at the date a Quotation is accepted, or a Client Service Agreement is signed, shall govern that engagement, save that procedural, POPIA, and regulatory-compliance updates shall apply immediately to all current engagements.
4.1 All Quotations issued by Aerion are estimates based on the information, brief, and scope provided by the Client at the time of quoting, and are subject to change should the brief, scope, or underlying assumptions change.
4.2 Unless otherwise stated on the face of the Quotation, Quotations are valid for thirty (30) calendar days from the date of issue, after which Aerion reserves the right to review and adjust pricing.
4.3 Quotations are exclusive of value-added tax (VAT) unless expressly stated to be inclusive.
4.4 Any estimate of timeframes contained in a Quotation is indicative only and is subject to clause 14 to clause 21 (as applicable) and to the Client's timeous provision of content, approvals, and information.
4.5 Where a Quotation contemplates work to be performed in phases or milestones, Aerion reserves the right to issue a revised Quotation or change order in respect of any phase where the scope materially changes from that originally contemplated.
4.6 Third-party costs (including but not limited to media spend, licensing fees, stock imagery, hosting, domain registration, printing substrates, and courier costs) are estimated in good faith but may fluctuate due to circumstances beyond Aerion's control, and any variance shall be for the Client's account.
5.1 All prices quoted by Aerion are in South African Rand (ZAR) unless otherwise stated.
5.2 Aerion reserves the right to review and adjust its standard rates and pricing on an annual basis, or more frequently where necessitated by changes in input costs, third-party pricing, or statutory requirements, provided that such adjustments shall not apply retrospectively to Services already quoted and accepted.
5.3 Where Services are billed on a retainer or subscription basis, the applicable monthly fee, inclusions, and review mechanism shall be set out in the relevant Client Service Agreement.
5.4 Where Services are billed on a time-and-materials or hourly basis, Aerion's standard hourly rates as published from time to time, or as recorded in the relevant Quotation, shall apply, and Aerion shall be entitled to invoice for time reasonably and demonstrably spent, including in respect of revisions falling outside the agreed scope.
5.5 Any request for work outside the scope of an accepted Quotation shall be treated as a variation and shall be quoted and invoiced separately in accordance with clause 4.
6.1 Unless otherwise agreed in writing, Aerion requires payment of a Deposit, being a percentage of the total quoted fee as specified in the applicable Quotation or Client Service Agreement (typically fifty percent (50%), unless otherwise stated), prior to the commencement of any Services.
6.2 Aerion shall not be obliged to commence, and shall be entitled to suspend, any Services until the Deposit has been received in cleared funds.
6.3 Save where the Client validly exercises a right of cancellation within any cooling-off period afforded by the CPA and applicable to the transaction, the Deposit may be retained only to the extent reasonably required to cover work already performed, reserved production time, and non-cancellable third-party costs. Any remaining balance will be dealt with in accordance with applicable law and the accepted Quotation.
6.4 Where a project is placed on hold by the Client for a continuous period exceeding ninety (90) calendar days following payment of the Deposit, Aerion reserves the right to treat the Deposit as forfeited in respect of resources already allocated and to require a fresh Deposit prior to recommencing Services, without prejudice to Aerion's other rights.
6.5 For once-off print, signage, promotional product, and similarly production-intensive orders, Aerion reserves the right to require full pre-payment prior to placing any order with a third-party supplier or printer.
7.1 Save where otherwise agreed in writing, the balance of any fee (after deduction of the Deposit) is due and payable upon completion of the Services, or in accordance with the milestone or payment schedule set out in the applicable Quotation or Client Service Agreement, and in any event prior to final delivery, hand-over, publication, or release of the Deliverables.
7.2 Retainer and subscription fees are payable monthly in advance, on or before the first (1st) day of each calendar month, unless otherwise agreed in writing.
7.3 All invoices are payable within seven (7) calendar days of the invoice date, unless a different payment period is expressly recorded in the applicable Quotation or Client Service Agreement.
7.4 Payment shall be made by electronic funds transfer into Aerion's nominated bank account, being: Bank: as provided on your invoice; Account Holder: as provided on your invoice; Account Number: as provided on your invoice; Branch Code: as provided on your invoice; Reference: as provided on your invoice, or by such other method as Aerion may from time to time notify to the Client in writing.
7.5 The Client shall be responsible for all bank charges, transfer fees, and currency conversion costs (where applicable) associated with payment, and all payments shall be made free of set-off, deduction, or counterclaim, save as required by law.
7.6 Aerion reserves the right, without prejudice to any other remedy, to withhold delivery of Deliverables, suspend ongoing Services (including hosting, domain, and social media management), or decline to release Source Files or final assets, until all amounts due have been paid in full.
8.1 The Client shall, upon request, provide Aerion with valid proof of payment for any amount paid, reflecting the paying bank's official reference, the amount paid, and the date of payment.
8.2 Proof of payment does not constitute payment, and Aerion shall not be obliged to commence, continue, or release any Services, Deliverables, or Source Files until the relevant funds have reflected as cleared funds in Aerion's bank account.
8.3 Aerion shall not be liable for any delay arising from the Client's bank, payment service provider, or clearing house, including delays caused by electronic funds transfer clearance times, weekend or public holiday processing, or fraud-prevention holds.
9.1 Should the Client fail to pay any amount due under this Agreement by the applicable due date, such amount shall bear interest at the rate prescribed from time to time under the Prescribed Rate of Interest Act 55 of 1975, calculated daily and compounded monthly, from the due date until the date of actual payment, both days inclusive.
9.2 Without derogating from clause 9.1, Aerion reserves the right to levy a reasonable administrative fee in respect of overdue accounts, to reflect the actual and reasonable costs of collection, subject to the limits prescribed under the National Credit Act 34 of 2005, where applicable.
9.3 In the event of late payment, Aerion may, at its sole discretion and without liability, suspend all Services (including live website hosting, domain renewal, social media management, and advertising campaigns) until the account is brought up to date, and the Client shall bear sole responsibility for any consequences of such suspension, including loss of website availability, ranking, or advertising continuity.
9.4 Suspension of Services under this clause shall not relieve the Client of its obligation to pay retainer or subscription fees that continue to accrue during the period of suspension, unless Aerion elects otherwise in writing.
10.1 Should any amount due by the Client remain unpaid for a period exceeding thirty (30) calendar days after the due date, Aerion shall be entitled, without further notice save as required by law, to refer the outstanding amount for collection, and the Client shall be liable for all reasonable legal costs incurred by Aerion in recovering such amount, on the scale as between attorney and own client, including collection commission and tracing fees, subject to the limits prescribed by the National Credit Act 34 of 2005, where applicable.
10.2 Aerion reserves the right, in its discretion, to perform credit and reference checks on prospective and existing Clients, and to require security, suretyship, or advance payment as a condition of extending credit terms.
10.3 Where a Client is a juristic person, Aerion may require the signatory to bind themselves as surety and co-principal debtor for the due and punctual performance of the Client's payment obligations, in a separate deed of suretyship.
10.4 Aerion reserves the right to list payment defaults with a registered credit bureau, in accordance with applicable law, after having given the Client reasonable prior written notice of its intention to do so.
11.1 The Client may cancel a Quotation or Client Service Agreement prior to commencement of Services by giving Aerion written notice, and Aerion may deduct only reasonable work already performed, reserved time, and non-cancellable third-party costs from the Deposit, subject always to applicable law.
11.2 Where the Client cancels after Services have commenced, the Client shall remain liable for: (a) all fees for work performed and costs incurred up to the date of cancellation; (b) any third-party costs already committed or incurred on the Client's behalf (including but not limited to media spend, printing, licensing, or hosting costs); and (c) a reasonable cancellation fee to compensate Aerion for the loss of the balance of the engagement, calculated with reference to the stage of completion and resources allocated.
11.3 Retainer-based Services (including but not limited to social media management, digital marketing, and website maintenance) may be cancelled by either party on not less than thirty (30) calendar days' written notice, to be given prior to the commencement of the following billing cycle, unless a longer minimum term is specified in the applicable Client Service Agreement.
11.4 Aerion reserves the right to cancel or suspend an engagement, on reasonable written notice, where: (a) the Client is in material breach of this Agreement, including non-payment; (b) the Client provides instructions that are unlawful, defamatory, infringing, or otherwise expose Aerion to legal or reputational risk; or (c) continued performance becomes impossible or commercially unreasonable due to circumstances beyond Aerion's control.
11.5 Upon cancellation for any reason, the Client shall settle all outstanding invoices within seven (7) calendar days, and Aerion shall, upon receipt of full payment, deliver such Deliverables as have been completed and paid for, subject to clause 25 (Source Files).
12.1 Save as expressly provided in this clause 12, in clause 6 (Deposits), or as required by the CPA, amounts properly earned for work already completed, approved milestones, reserved time, and non-cancellable third-party costs are not refundable. Any refund due will be calculated fairly with reference to the work performed and applicable law.
12.2 Where Aerion is unable to commence or complete Services due to its own fault, and the Client has paid in advance for Services not rendered, Aerion shall refund the pro-rata portion of fees paid that relates directly to Services not performed, within thirty (30) calendar days of written demand.
12.3 Refunds, where due, shall be paid by way of electronic funds transfer into the Client's nominated bank account, and shall not include any third-party costs already irrevocably committed or incurred (such as media spend already flighted, or print orders already placed).
12.4 Nothing in this clause 12 limits any right the Client may have under the CPA in respect of defective goods or substandard services, which rights are addressed further in clause 13.
13.1 To the extent that the Client qualifies as a “consumer” as defined in the CPA, and the CPA applies to the transaction between the Client and Aerion (having regard to the asset value and annual turnover thresholds prescribed from time to time by the Minister of Trade, Industry and Competition), nothing in this Agreement shall be interpreted so as to limit, exclude, or override any right afforded to the Client under the CPA, and to the extent of any conflict, the CPA shall prevail.
13.2 Where applicable, the Client has the right to receive Services of a quality that persons are generally entitled to expect, in accordance with section 54 of the CPA, and to fair, reasonable, and honest dealing in terms of section 40 and section 41 of the CPA.
13.3 Any clause in this Agreement that purports to limit Aerion's liability, impose an assumption of risk on the Client, impose an obligation on the Client to indemnify Aerion, or constitutes an acknowledgment of any fact by the Client, is drawn to the Client's attention in accordance with section 49 of the CPA, and the Client confirms that it has had a reasonable opportunity to review such clauses (including clauses 29, 30, 31 and 32) prior to accepting this Agreement.
13.4 Where the Agreement was concluded as a direct marketing transaction, or otherwise affords the Client a right to cancel within a cooling-off period in terms of section 16 of the CPA, such right shall apply in addition to, and not in substitution for, the cancellation provisions of clause 11.
13.5 Nothing in this clause 13 shall be construed as extending consumer protections under the CPA to a Client that is a juristic person with an asset value or annual turnover equal to or above the applicable threshold prescribed under the CPA, in respect of which transaction the CPA does not apply.
This clause 14 applies to Services provided under the Aerion Branding division, including logo design, corporate identity, graphic design, brand strategy, and business documentation design.
14.1 Branding Services are provided on the basis of the brief, reference material, and information supplied by the Client. Aerion shall not be liable for outcomes that do not meet the Client's expectations where such expectations were not clearly communicated in the brief.
14.2 Unless otherwise agreed in the applicable Quotation, Aerion shall provide up to three (3) rounds of revisions per Deliverable within the agreed scope. Further revisions, or revisions requested after final sign-off, shall be billed as additional work in accordance with clause 5.4.
14.3 The Client shall provide written approval (“sign-off”) at each milestone. Aerion shall be entitled to rely on such sign-off as final and to proceed to the next phase of the project accordingly.
14.4 Colour reproduction may vary between digital screens and final printed or manufactured output due to differences in colour calibration, substrate, and production process, and Aerion shall not be liable for such variance provided that industry-standard colour matching practices were followed.
14.5 Where Aerion conducts a trademark availability search as part of a branding engagement, such search is conducted on a reasonable-efforts basis using publicly available records and does not constitute a formal legal or attorney opinion on registrability or freedom-to-use, and the Client is advised to obtain independent trade mark clearance advice from a qualified practitioner before committing to a brand name or mark.
This clause 15 applies to Services provided under the Aerion Marketing division, including digital marketing, social media management, Meta advertising, Google advertising, SEO, content creation, and marketing consulting.
15.1 Aerion does not guarantee specific outcomes, rankings, engagement rates, conversion rates, return on advertising spend, or revenue as a result of marketing Services, as such outcomes depend on factors outside Aerion's control, including but not limited to market conditions, platform algorithm changes, competitor activity, and the Client's own product, pricing, and service quality.
15.2 Where Aerion manages paid advertising campaigns on behalf of the Client (including Meta and Google Advertising), the Client authorises Aerion to create, manage, and optimise advertising accounts and campaigns on the Client's behalf, and to spend the agreed media budget in accordance with the approved strategy. Media spend is separate from, and in addition to, Aerion's management fee, unless otherwise stated.
15.3 The Client shall ensure timeous provision of access credentials, brand assets, product information, and approvals required for Aerion to perform marketing Services, and delays caused by the Client's failure to do so shall not constitute a breach by Aerion of any timeline or performance expectation.
15.4 Aerion shall comply, and shall use reasonable efforts to ensure that campaigns comply, with the advertising standards and policies of the relevant third-party platforms (including Meta and Google), as well as with the Code of Advertising Practice administered by the Advertising Regulatory Board, provided that Aerion shall not be liable for the independent acts, omissions, algorithm changes, account suspensions, or policy enforcement actions of such third-party platforms.
15.5 All social media accounts, advertising accounts, and analytics properties shall, unless otherwise agreed in writing, be created and/or administered under the Client's own ownership credentials, and Aerion's access shall be as an authorised administrator or manager only. Upon termination of the Services, Aerion shall remove its administrative access within a reasonable time upon written request.
15.6 Search engine optimisation (SEO) Services are provided on a reasonable-efforts basis in accordance with recognised industry best practice at the relevant time. The Client acknowledges that search engine ranking algorithms are proprietary, subject to change without notice, and outside Aerion's control, and that no specific ranking position or timeframe is guaranteed.
16.1 Website design and development Services are scoped and quoted on the basis of the functional and design brief agreed with the Client. Any functionality, integration, plugin, or feature not expressly included in the agreed scope shall be treated as a variation in accordance with clause 4.6 and clause 5.4.
16.2 The Client shall be responsible for providing all content (including text, images, product information, and legal content such as privacy policies and terms of use specific to the Client's business) required for the website, unless content creation is expressly included in the scope of Services. Delays in content provision may result in corresponding delays to the project timeline, for which Aerion shall bear no liability.
16.3 Where Aerion procures domain registration and/or hosting services on the Client's behalf from a third-party provider, such services are subject to the terms and conditions of that third-party provider, and Aerion shall not be liable for outages, data loss, or service interruptions caused by such third party, save to the extent caused by Aerion's gross negligence.
16.4 Website maintenance retainers cover the scope of work expressly recorded in the applicable Client Service Agreement (for example, security updates, plugin updates, backups, and minor content edits within a specified monthly time allocation). Work exceeding the agreed monthly allocation, or falling outside the defined scope, shall be billed additionally at Aerion's standard hourly rate.
16.5 The Client acknowledges that websites built on third-party content management systems, themes, or plugins are dependent on the continued availability, security, and compatibility of such third-party software, and that Aerion cannot guarantee uninterrupted compatibility following third-party updates outside Aerion's control.
16.6 Upon final payment for a website project, Aerion shall provide the Client with administrative access to the completed website. Ongoing hosting, security monitoring, and maintenance are only provided where the Client has subscribed to an applicable maintenance retainer.
17.1 Photography Services are provided at the date, time, and location agreed in advance with the Client. The Client shall ensure that any necessary venue access, permits, model releases, and third-party consents are obtained prior to the shoot, failing which Aerion reserves the right to reschedule and to charge a reasonable rebooking fee.
17.2 Unless otherwise agreed, Aerion shall deliver a professionally selected and edited set of final images within the timeframe specified in the applicable Quotation. Raw, unedited image files do not form part of the standard Deliverables and shall only be provided where expressly agreed and separately quoted.
17.3 Aerion reserves the right to reasonable creative discretion in respect of image selection, culling, colour grading, and editing style, consistent with the brief agreed with the Client.
17.4 Should inclement weather, venue unavailability, or other circumstances beyond Aerion's control necessitate rescheduling of an outdoor or location shoot, Aerion shall not be liable for any resulting delay, and a reasonable rescheduling fee may apply where the change is requested by the Client.
18.1 Videography Services, including filming, editing, colour grading, sound design, and final export, are provided in accordance with the scope, shot list, and creative brief agreed with the Client prior to production.
18.2 Unless otherwise agreed, Aerion shall provide up to two (2) rounds of revisions to a rough-cut edit and one (1) round of revisions to the final grade within the agreed scope. Additional revision rounds shall be billed in accordance with clause 5.4.
18.3 Music, stock footage, voice-over artists, and other third-party licensed content used in video production shall be licensed appropriately for the intended use, and the cost of such licences shall be for the Client's account unless expressly included in the Quotation. The Client shall not use the final video for purposes exceeding the scope of the licence obtained without procuring the necessary extended licence.
18.4 Raw, unedited footage does not form part of the standard Deliverables and shall only be provided where expressly agreed and separately quoted, and, where so agreed, shall be subject to an additional archiving and hand-over fee.
19.1 Printing Services are provided by Aerion directly or procured from reputable third-party print suppliers on the Client's behalf. Aerion shall exercise reasonable care in the selection of print suppliers but shall not be liable for defects arising from the acts or omissions of such third-party suppliers, save to the extent that Aerion failed to exercise reasonable care in their selection or supervision.
19.2 The Client shall provide final, print-ready approval of all artwork prior to print production. Once artwork has been approved by the Client and sent to print, Aerion shall bear no liability for errors (including spelling, colour, layout, or content errors) that were present in, and not flagged by the Client in, the approved artwork.
19.3 Colour variance between digital proofs and final printed output may occur due to differences between screen (RGB) and print (CMYK) colour profiles, substrate, and printing method, and shall not, of itself, constitute a defect, provided the variance falls within generally accepted industry tolerances.
19.4 Quantities delivered may vary from the quantity ordered by up to five percent (5%) over or under, in accordance with standard print industry practice, and the Client shall be invoiced for the quantity actually delivered.
19.5 Print orders, once placed with the printer, cannot be cancelled, and full payment shall remain due, save where the print supplier's own terms permit cancellation and any refund obtained is passed on to the Client, less Aerion's reasonable administrative costs.
20.1 Promotional products are supplied subject to availability from Aerion's third-party suppliers, and Aerion reserves the right to substitute a product of equivalent or better quality and specification where the originally quoted product becomes unavailable, subject to prior notice to the Client.
20.2 Lead times for promotional products are estimates only and are dependent on supplier stock availability, branding/decoration turnaround, and, where applicable, import or customs processes, none of which are within Aerion's control.
20.3 The Client shall approve a physical or virtual pre-production sample (where offered by the supplier) prior to full production, and Aerion shall not be liable for variances from such sample that fall within standard manufacturing tolerances.
20.4 Promotional product orders, once placed with the supplier, are subject to the supplier's own cancellation and returns policy, and full payment shall remain due to Aerion save to the extent any refund is obtained from the supplier and passed on to the Client, less Aerion's reasonable administrative costs.
21.1 Business, brand strategy, and marketing consulting Services are provided on the basis of information, documentation, and access provided by the Client, and Aerion's advice, strategies, and recommendations are only as reliable as the information on which they are based.
21.2 Consulting Deliverables (including strategy documents, reports, and recommendations) are provided for the Client's internal business use and do not constitute financial, legal, tax, or accounting advice. The Client should obtain independent professional advice on such matters where required.
21.3 Aerion shall not be liable for the Client's decision to implement, or not to implement, any recommendation made in the course of consulting Services, nor for the commercial outcome of any such decision.
22.1 Save as expressly provided in this clause 22 and in clauses 23 to 26, all Intellectual Property created, developed, or subsisting in the Deliverables prior to full and final payment therefor shall vest in, and remain the property of, Aerion.
22.2 Nothing in this Agreement transfers to the Client any Intellectual Property rights in Aerion's pre-existing tools, methodologies, templates, frameworks, proprietary software, or general know-how used by Aerion in the course of delivering the Services (“Aerion Background IP”), and such Aerion Background IP shall remain the exclusive property of Aerion, whether or not incorporated into the Deliverables.
22.3 Where the Deliverables incorporate Aerion Background IP, Aerion grants to the Client, upon full and final payment, a non-exclusive, perpetual, royalty-free licence to use such Aerion Background IP solely as embodied in the Deliverables and for the purpose for which the Deliverables were created.
22.4 The Client warrants that any content, trademarks, logos, images, or other material supplied by the Client for incorporation into the Deliverables (“Client Materials”) is either owned by the Client or that the Client has obtained all necessary rights, licences, and consents for its use, and the Client indemnifies Aerion in accordance with clause 30 in respect of any claim arising from the use of Client Materials.
23.1 In accordance with the Copyright Act 98 of 1978, copyright in all original artistic, literary, and other copyright works created by Aerion in the course of providing the Services shall, as between Aerion and the Client, vest in Aerion upon creation, irrespective of who commissioned the work, save to the extent expressly assigned in terms of clause 23.2.
23.2 Subject to full and final payment of all fees due in respect of the relevant Deliverable, and save where the Deliverable was produced under a Licence in terms of clause 24, Aerion assigns to the Client all copyright in the final, approved Deliverables created specifically for the Client, to the extent necessary for the Client to use such Deliverables for their intended commercial purpose, excluding any Aerion Background IP, any preliminary or rejected concepts, and any Source Files (which remain subject to clause 25).
23.3 For the avoidance of doubt, copyright in preliminary concepts, drafts, unused design options, and any Deliverables not fully paid for, shall at all times remain vested in Aerion, and the Client shall have no right to use, reproduce, or adapt such material.
23.4 Aerion reserves the moral rights afforded to it as author under section 20 of the Copyright Act 98 of 1978, including the right to be identified as the creator of the work and the right to object to derogatory treatment of the work, to the extent such rights are not waived in writing.
24.1 Where the applicable Quotation or Client Service Agreement records that a Deliverable is provided under licence rather than by way of assignment (for example, in respect of stock imagery, licensed fonts, licensed music, third-party plugins, or templated design systems), the Client's rights in that Deliverable shall be limited to the scope of use (including duration, territory, and media) expressly recorded in that licence.
24.2 The Client shall not sub-license, resell, or use licensed material outside the scope of the licence granted without procuring the necessary extended rights, and any breach of a third-party licensor's terms by the Client shall be for the Client's own account and risk, and the Client indemnifies Aerion accordingly in terms of clause 30.
24.3 Where fonts, stock assets, plugins, or software are licensed by Aerion on the Client's behalf as part of a Deliverable, Aerion shall pass on the applicable licence terms to the Client, and the Client's continued use of such licensed material beyond termination of this Agreement shall be subject to the Client independently maintaining or renewing such licence.
25.1 Source Files remain the property of Aerion and do not form part of the standard Deliverables. Source Files shall only be provided to the Client where: (a) expressly included in the applicable Quotation; (b) separately purchased by the Client at Aerion's standard Source File release rate; or (c) required to be provided at law.
25.2 Where the Client purchases Source Files, such Source Files are provided “as is” for the Client's internal use and further development, and Aerion shall have no obligation to provide technical support, explanation, or updates in respect of Source Files once released, unless separately agreed.
25.3 The release of Source Files under clause 25.1 does not, of itself, transfer any Aerion Background IP or any third-party licensed component embedded within such Source Files, which shall remain subject to clauses 22 and 24 respectively.
25.4 Aerion shall retain reasonable working backups of Deliverables and Source Files for a period of twelve (12) months following completion of a project, after which Aerion shall be entitled, but not obliged, to archive or delete such files without further notice to the Client.
26.1 Unless the Client notifies Aerion in writing, prior to or at the commencement of the engagement, that the work is confidential or must not be publicised (for example, due to an unreleased product launch or non-disclosure obligation), the Client grants Aerion a non-exclusive, royalty-free, worldwide right to: (a) display the Deliverables (or excerpts, mock-ups, or case studies based thereon) in Aerion's portfolio, website, social media, and marketing materials; and (b) identify the Client as a client of Aerion for promotional and business-development purposes.
26.2 Where the Client has requested confidentiality in respect of a specific project under clause 26.1, Aerion shall not showcase that project until such time as the Client confirms in writing that the confidentiality restriction may be lifted (for example, following public launch).
26.3 The Client may, at any time, request in writing that Aerion remove specific Deliverables from Aerion's public portfolio or marketing materials, and Aerion shall action such request within a reasonable time, provided that Aerion shall not be obliged to retrieve or recall material already published by third parties (including media coverage, industry award submissions, or archived web pages) prior to such request.
27.1 “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”), whether orally, in writing, or electronically, that is marked or identified as confidential, or that ought reasonably to be treated as confidential given its nature or the circumstances of disclosure, including business plans, pricing, financial information, strategy documents, unreleased products, and Personal Information, but excluding information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was already lawfully known to the Receiving Party prior to disclosure; (c) is independently developed without reference to the Confidential Information; or (d) is required to be disclosed by law or a competent court or regulator.
27.2 Each party undertakes to: (a) keep the other party's Confidential Information confidential and not disclose it to any third party without prior written consent, save to its employees, contractors, and professional advisors on a strict need-to-know basis and subject to equivalent confidentiality obligations; and (b) use the Confidential Information solely for the purpose of performing its obligations under this Agreement.
27.3 The obligations of confidentiality in this clause 27 shall survive termination or expiry of this Agreement for a period of three (3) years, save in respect of trade secrets and Personal Information, which shall be protected for so long as they retain the character of confidential information or as required by POPIA, respectively.
27.4 Nothing in this clause 27 shall prevent Aerion from exercising its rights under clause 26 (Portfolio and Marketing Rights) in respect of non-confidential aspects of the Deliverables.
28.1 Both parties undertake to comply with their respective obligations under POPIA in respect of any Personal Information processed in connection with this Agreement.
28.2 Where Aerion processes Personal Information on behalf of, and on the instruction of, the Client in the course of providing the Services (for example, managing a customer database for email marketing, or running advertising campaigns using Client customer lists), Aerion shall act as an “operator” as defined in POPIA, and shall: (a) process such Personal Information only for the purpose of, and to the extent necessary to, perform the Services and in accordance with the Client's written instructions; (b) implement and maintain appropriate, reasonable technical and organisational security measures to prevent loss, damage, or unauthorised access to such Personal Information, as required by section 19 of POPIA; (c) treat such Personal Information as confidential in accordance with clause 27; (d) notify the Client without undue delay upon becoming aware of any reasonable grounds to believe that Personal Information processed under this Agreement has been accessed or acquired by an unauthorised person, to enable the Client to comply with its own notification obligations under POPIA; and (e) upon termination of the relevant Services, and at the Client's written election, delete or return such Personal Information, save to the extent Aerion is required by law to retain it.
28.3 Where Aerion determines the purpose and means of processing Personal Information in its own right (for example, in respect of Client contact details processed for Aerion's own invoicing, account management, and direct marketing purposes), Aerion shall act as a “responsible party” as defined in POPIA in respect of such processing, as further described in Aerion's Privacy Policy.
28.4 The Client warrants that, where it supplies Aerion with Personal Information belonging to its own customers, employees, or other third parties (for example, for email marketing, SMS campaigns, or customer databases), it has obtained all necessary consents, or otherwise has a valid lawful basis under POPIA, for such Personal Information to be collected, supplied to Aerion, and processed for the purposes instructed, and the Client indemnifies Aerion in accordance with clause 30 in respect of any claim arising from the Client's breach of this warranty.
28.5 Each party shall, upon reasonable written request, provide the other with such information as is reasonably necessary to demonstrate compliance with this clause 28, and shall promptly notify the other of any complaint, investigation, or enforcement action instituted by the Information Regulator relating to the processing of Personal Information under this Agreement.
28.6 Aerion's information officer for purposes of POPIA may be contacted at the Aerion Information Officer at info@aerionbranding.com, and further detail regarding Aerion's processing of Personal Information is set out in Aerion's Privacy Policy, available at https://aerionbranding.com/privacy.html, which is incorporated into this Agreement by reference.
The Client represents and warrants to Aerion, and undertakes, as follows:
29.1 the Client has full legal capacity and, where applicable, due corporate authorisation, to enter into and perform this Agreement;
29.2 all Client Materials (including logos, trademarks, images, copy, testimonials, and data) supplied to Aerion for use in the Deliverables are either owned by the Client or licensed to the Client with the right to sub-license or authorise Aerion's use thereof, and do not infringe the Intellectual Property, privacy, or other rights of any third party;
29.3 the Client shall provide timeous, accurate, and complete information, content, access, and approvals reasonably required by Aerion to perform the Services, and acknowledges that delay in doing so may affect project timelines without any consequent liability to Aerion;
29.4 the Client shall comply with all applicable laws in respect of its own business, products, and services, including in relation to any content, claims, or representations that the Client instructs Aerion to incorporate into the Deliverables (including compliance with the CPA, the Electronic Communications and Transactions Act 25 of 2002, sector-specific advertising codes, and any applicable industry regulator's rules);
29.5 the Client shall not use the Deliverables for any unlawful, defamatory, fraudulent, or infringing purpose; and
29.6 where the Client provides Personal Information of third parties to Aerion, the Client has complied with clause 28.4.
30.1 The Client indemnifies and holds Aerion, its directors, employees, contractors, and agents harmless against any claim, demand, loss, damage, cost, or expense (including reasonable legal costs on an attorney-and-own-client scale) arising from or in connection with: (a) any breach by the Client of the warranties set out in clause 29; (b) any claim that Client Materials, or the Client's use of the Deliverables, infringe the Intellectual Property, privacy, publicity, or other rights of a third party; (c) any claim arising from content, claims, or representations that the Client instructed Aerion to include in the Deliverables; and (d) any claim arising from the Client's breach of applicable law in the conduct of its own business.
30.2 Aerion indemnifies and holds the Client harmless against any claim by a third party that the Deliverables, to the extent originally created by Aerion and not incorporating Client Materials or Aerion Background IP licensed from a third party, infringe such third party's copyright, provided that this indemnity shall not apply to the extent the claim arises from: (a) modification of the Deliverables by any party other than Aerion; (b) use of the Deliverables in combination with material not supplied by Aerion; or (c) the Client's continued use of a Deliverable after being notified by Aerion to cease such use pending resolution of an infringement claim.
30.3 The indemnities in this clause 30 shall survive termination or expiry of this Agreement.
31.1 Save in respect of the CPA rights described in clause 13, and save in respect of liability that cannot lawfully be excluded or limited (including liability for death, personal injury, or fraud caused by Aerion's gross negligence or wilful misconduct), Aerion's total aggregate liability to the Client arising out of or in connection with this Agreement, whether in contract, delict, or otherwise, shall not exceed the total fees actually paid by the Client to Aerion in respect of the specific Deliverable or Service giving rise to the claim in the twelve (12) months preceding the event giving rise to the claim.
31.2 In no event shall Aerion be liable to the Client for any indirect, special, incidental, or consequential loss or damage, including loss of profit, loss of revenue, loss of business opportunity, loss of goodwill, or loss of data, even where Aerion has been advised of the possibility of such loss.
31.3 Aerion shall not be liable for any loss or damage arising from: (a) the acts or omissions of third-party service providers (including hosting providers, advertising platforms, printers, and product suppliers); (b) the Client's use of the Deliverables other than for their intended purpose; (c) modifications made to the Deliverables by any party other than Aerion; or (d) the Client's failure to provide timeous instructions, content, or approvals.
31.4 This clause 31 is drawn to the Client's attention in accordance with section 49 of the CPA, and the Client acknowledges that it has had a reasonable opportunity to consider its terms and, where the Client is a juristic person to which the CPA does not apply, expressly accepts the risk allocation recorded in this clause as fair and reasonable in the circumstances.
32.1 Neither party shall be liable for any failure or delay in performing its obligations under this Agreement (other than an obligation to pay money) to the extent that such failure or delay is caused by an event or circumstance beyond that party's reasonable control, including but not limited to acts of God, fire, flood, extreme weather, pandemic or epidemic, war, riot, civil unrest, load shedding or national electricity supply constraints, national or regional network or internet outages, strike or industrial action, governmental action, or the failure of a third-party supplier or platform (“Force Majeure Event”).
32.2 The party affected by a Force Majeure Event shall notify the other party in writing as soon as reasonably possible, and shall use reasonable efforts to mitigate the impact of the Force Majeure Event and to resume performance as soon as reasonably possible.
32.3 Should a Force Majeure Event continue for a continuous period exceeding sixty (60) calendar days, either party shall be entitled to terminate the affected Services on written notice to the other, without liability for such termination, save that the Client shall remain liable for fees for Services rendered, and costs incurred, up to the date of termination.
33.1 In the event of any dispute arising out of or in connection with this Agreement, including any dispute regarding its existence, validity, or termination (a “Dispute”), the parties shall first attempt, in good faith and within ten (10) Business Days of a written request by either party, to resolve the Dispute through direct negotiation between their respective senior representatives.
33.2 Should the Dispute not be resolved within thirty (30) calendar days of the written request referred to in clause 33.1, either party may refer the Dispute to mediation administered by the Arbitration Foundation of Southern Africa (AFSA) or another mutually agreed mediator, prior to instituting formal legal proceedings, save in respect of urgent interim relief.
33.3 Should the Dispute not be resolved through mediation within thirty (30) calendar days of referral, either party may refer the Dispute to arbitration in accordance with the expedited rules of AFSA, to be conducted in Johannesburg, South Africa, in the English language, before a single arbitrator agreed between the parties or, failing agreement within ten (10) Business Days, appointed by AFSA. The arbitrator's award shall be final and binding on the parties, and either party may have it made an order of court.
33.4 Notwithstanding clauses 33.1 to 33.3, either party shall be entitled to approach a court of competent jurisdiction for urgent interim relief at any time.
33.5 This clause 33 constitutes irrevocable consent by the parties to arbitration in terms of section 3(1) of the Arbitration Act 42 of 1965, and shall survive termination or cancellation of this Agreement.
34.1 This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.
34.2 Subject to clause 33 (Dispute Resolution), the parties consent to the non-exclusive jurisdiction of the Magistrate's Court having jurisdiction over the parties in terms of section 45 of the Magistrates' Courts Act 32 of 1944, notwithstanding that the amount in dispute may exceed the jurisdiction of that court, without prejudice to Aerion's right to institute proceedings in the High Court of South Africa.
35.1 The parties choose as their domicilium citandi et executandi (address for legal notices) the physical and email addresses recorded in the applicable Client Service Agreement, or, in the absence thereof, the addresses last provided by the Client to Aerion in writing, and, in respect of Aerion, Cape Wagtail St, Spartan, Kempton Park, 1619, Gauteng, South Africa and info@aerionbranding.com.
35.2 Any notice given in terms of this Agreement shall be in writing and shall be deemed to have been duly given: (a) if delivered by hand, on the date of delivery; (b) if sent by email, on the date reflected in the sender's transmission report, provided no bounce-back or delivery-failure notification is received; or (c) if sent by prepaid registered post, on the tenth (10th) Business Day after posting.
35.3 Either party may change its domicilium address by written notice to the other, provided that the new address is not a post office box and is situated within the Republic of South Africa (in respect of a physical address).
36.1 The Client may not cede, assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Aerion, which consent shall not be unreasonably withheld.
36.2 Aerion may cede, assign, or delegate its rights and obligations under this Agreement, in whole or in part, to a related or associated entity, or in connection with a merger, acquisition, restructuring, or sale of business, upon written notice to the Client, provided that the Client's rights under this Agreement are not materially prejudiced thereby.
36.3 Aerion may, in its discretion, engage subcontractors, freelancers, or third-party suppliers to perform any part of the Services, provided that Aerion shall remain responsible for the due performance of its obligations under this Agreement.
37.1 If any provision of this Agreement is or becomes invalid, unlawful, or unenforceable in any jurisdiction, such provision shall be treated as severed from the remainder of this Agreement in that jurisdiction, without affecting the validity or enforceability of the remaining provisions of this Agreement, or the validity or enforceability of that provision in any other jurisdiction.
37.2 The parties shall, in the circumstances contemplated in clause 37.1, negotiate in good faith to agree a replacement provision that most closely reflects the parties' original commercial intention.
38.1 The provisions of clauses 9 (Late Payment and Interest), 10 (Collections and Credit Control), 22 to 26 (Intellectual Property, Copyright, Licensing, Source Files, and Portfolio Rights), 27 (Confidentiality), 28 (POPIA), 29 (Client Warranties), 30 (Indemnities), 31 (Limitation of Liability), 33 (Dispute Resolution), and 34 (Governing Law and Jurisdiction), together with any other clause which by its nature is intended to survive, shall survive the termination or expiry of this Agreement for any reason.
39.1 This Agreement (comprising these Master Terms and Conditions, the applicable Client Service Agreement, and any accepted Quotation) constitutes the entire agreement between the parties in respect of its subject matter, and supersedes all prior discussions, representations, undertakings, or agreements, whether oral or written, relating to that subject matter.
39.2 No addition to, variation, novation, or agreed cancellation of this Agreement, or any part thereof, shall be of any force or effect unless reduced to writing and signed by or on behalf of both parties, save that Aerion may unilaterally update these Master Terms and Conditions from time to time by publishing an updated version at https://aerionbranding.com/terms.html and providing reasonable notice to the Client, provided that no such update shall retrospectively alter the commercial terms (including price and scope) of an engagement already accepted by the Client, save to the extent required to maintain compliance with applicable law.
39.3 No indulgence, extension of time, or relaxation granted by either party shall constitute a waiver of any right, nor shall it preclude that party from exercising any right which may have arisen in the past or which may arise in the future.
40.1 The parties agree that this Agreement, and any document forming part of it, may be validly executed by way of electronic signature (including a scanned signature, a signature applied through a digital signing platform, or acceptance via a clearly identified digital “accept” or “I agree” action) in accordance with the Electronic Communications and Transactions Act 25 of 2002, and that such electronic execution shall have the same legal force and effect as a signature in wet ink.
40.2 This Agreement may be executed in any number of counterparts (including electronic counterparts), each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
40.3 Data messages (including emails and electronic records of online acceptance) shall be admissible as evidence between the parties of the conclusion and terms of this Agreement, to the fullest extent permitted by the Electronic Communications and Transactions Act 25 of 2002 and the Law of Evidence Amendment Act 45 of 1988.
41.1 Nothing in this Agreement shall be construed as creating a partnership, joint venture, agency, or employment relationship between the parties, and Aerion shall at all times act as an independent contractor.
41.2 The relationship between Aerion Branding and Aerion Marketing as trading divisions of Aerion does not create separate legal entities, and any reference to either division in this Agreement or in a Client Service Agreement is a reference to Aerion.
41.3 The Client consents to Aerion contacting it via email, SMS, WhatsApp, or telephone for purposes of administering the Services, account management, and, subject to clause 28 and Aerion's Privacy Policy, direct marketing of Aerion's own services, and the Client may opt out of direct marketing communications at any time by written request.
41.4 This Agreement is available in the English language, and the English version shall prevail over any translation.
41.5 Aerion's failure to enforce any provision of this Agreement at any time shall not be construed as a waiver of its right to enforce that or any other provision at a later time.
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