Engagement Terms and Conditions

In the acceptance of any proposal/cost estmate/quote will include an acceptance of these written terms and conditions as well as any additional written terms and conditions pertaining to the specific quote. The client’s signature means that the client has read and understood them and agrees to the full terms as set out in the contract:

1.   You’re awesome. Don’t ever forget that. You are a valued client to us, and will be referred to herein as “the client” alternatively also affectionately referred to as “YOU or YOUR” herein. Reference to “WE, US, OUR/S”) affectionately refers to ourselves, who also go by the name “Missing Link”. 
2.   This is a cost estimate and is valid for 30 days. This estimate as well as any subsequent agreement reached by and between us will be subject to these terms and conditions which include any addendums, which shall be read as if incorporated herein. Any additional work not specifically set out within this cost estimate will be communicated to you and will be charged accordingly. 
3.   Our payment terms are strictly 100% (One Hundred Percent in full) upfront for all speakers, talks, training, facilitation, and online products. Payment is required on confirmation to secure the booking and  to start production of the project. Missing Link will not deliver the aforementioned products without full payment.

For all other products and services, a 50% (Fifty Percent) deposit of the quoted/estimated amount must be paid upon confirmation by written acceptance of the cost estimate to start production of the project. Since our thing is effective communication, which we pride ourselves in, the acceptance of the quote will include an acceptance of these written terms and conditions as well as any additional written terms and conditions pertaining to the specific quote. The client’s signature means that the client has read and understood them and we all know exactly what to expect from one another, (much like a marriage, but with an expiry date).

The client also accepts the client consent in according to the Protection of Personal Information Act, 4 of 2013 (“POPI”)    *Act 4 of 2013 POPI CLIENT CONSENT FORM

The project will not commence until the deposit has been paid in full or full payment has been received as outlined above, within the agreed time frame.  The remaining outstanding balance will become due upon final approval of the end product where applicable.

By affixing your signature hereto, you have confirmed that you understand that, just as we undertake to honour our promises to you, you undertake to honour yours, however, should something go wrong along the way, and payments that are due to us are not made by the dates or in the time frames stipulated, then you agree to pay interest on all overdue amounts at the rate of 2% (Two Percent) per month, calculated from the day after the amount has become due, and that interest shall accrue to all overdue amounts, until such time as payment is made, up to the legal limit applicable. You, the valued client, accept that such provisions are in terms of the National Credit Act of 2007  (as amended from time to time), which prescribes a maximum interest payable on incidental agreements. The maximum rate of interest currently prescribed by the legislature is the sum of 24% (Twenty Four Percent) per annum.

Electronic Funds Transfers (“EFT”) payments are preferred.
Payment is deemed to have been made when the full invoiced amount has been paid and cleared in our account.
It is agreed that Credit card payments will incur an additional fee of 3.7% (Three and One seventh’s Percent)
Paypal payments will incur an additional fee of 4.7% (Four and One Seventh’s Percent).
Payment via Wise (formerly known as Transferwise) will incur a 2.7% transaction fee

4.   Our Cancellation policy is as follows:

4.1. Should the client wish to cancel a project prior to Missing Link completing it in terms of the original signed brief, Missing Link, shall have the right to accept cancellation of the project, on condition that the client makes payment of all work already done, on the projects, ALTERNATIVELY  a minimum charge of 25% (Twenty Five Percent) of the total project amount, WHICHEVER IS THE GREATER, in order to cover its administrative costs and any other hidden costs or damages incurred as a result of the cancellation.

4.2 Cancellation of an Open Group training or a full training session 48 (Forty-Eight) hours or, or less, prior to the training session, shall incur a full 100% (One Hundred Percent) cancellation fee.1 week’s notice is required in order for a postponement to be applied to the best next scheduled available date [ within 3 months ]

4.3 The client understands that it is not viable for Missing Link to proceed with an Open Group training session with less than eight (8) seats booked and accordingly, Missing Link shall have the right to postpone any open Group Session of less than eight (8) seats booked. Notice of such postponement shall be sent to you, the client, at least 7 (seven) working days or more, prior to the session, and you, the client, will be given dates from which to elect to attend the next scheduled Open Group training session, which shall be within the next  three (3) months after the initial session.

In the event that the client does not reschedule the session within the stipulated 3 month period, the session shall be deemed as having been cancelled, and the  terms and conditions pertaining to cancellation as set out herein above shall apply.

4.4 Cancellation and Postponement fees of Closed Groups

100% cancellation fee less than 48 hours

75%-postponement fee for 3 days’ notice

50%-postponement fee for 4 days’ notice

35%-postponement fee for 5 days’ notice

5.   Missing Link requires that a representative of the client be appointed to them for all dealings regarding the project. This person acts for and on behalf of the client. Should any changes be made after their approval, we will charge accordingly since this will be deemed to be additional work done. 

In order to meet our deadlines, which are set out in the addendum to this agreement, and which shall also be made known to the client from time to time, in writing, the client needs to work strictly within the stipulated timelines given by Missing Link to complete the project. Should the stated material deadlines be missed due to any act or omission by the client, or by the client’s failure to provide Missing Link with feedback or instruction, as and when required, Missing Link shall not be responsible for meeting original deadlines put in place. In the event that a delay is caused by the client and set deadlines are not met by Missing Link,  (through no fault of Missing Link), payment will still be due on the stipulated date. Our preferred time frame for Presentations, Videos or CloudCrew is four weeks, or the date stipulated in the annexure hereto, we do offer a “rallying the troops”  service whereby we can produce a completed project in half the time at the client’s written request to exercise this option which shall be provided at an additional cost of 25% (Twenty Five Percent) of the original quote, or as per the addendum attached hereto (which amount shall take precedence).   In order to ensure that the project is completed in a reasonable time, Missing Link shall require the client to furnish instructions and feedback upon request, or within agreed timeframes. If the client is unable or unwilling to furnish such further instruction in the stipulated or agreed time frames, then, in such event, Missing Link shall send the client a FINAL written notification to the client calling upon the client to furnish Missing Link with an instruction within 30 (thirty) consecutive days of the notification, in which to furnish Missing Link with the required instruction to proceed with or complete the project. Upon expiry of the said 30 day period, Missing Link shall, with great sadness, have the right to consider this a material breach of the agreement, by the client, and shall have the right to cancel the contract immediately. In the event that Missing Link elects to accept the breach and cancel the contract, it shall advise the client of the cancellation in writing. Upon cancellation of the contract, the client shall be liable for payment to Missing Link for all work already done on the project, ALTERNATIVELY, an amount equivalent to 25% (Twenty Five Percent) of the total project cost, WHICHEVER IS THE GREATER, in order to cover its administrative costs and any other hidden costs or damages incurred as a result of the cancellation. The client, by its/their signature hereto agree, that any funds that are held by Missing Link as a credit to their account, shall be used to make payment towards any and/or all amounts owed by them to Missing Link.  Missing Link shall have the right to exercise its option to cancel at any time after the expiry of the 30-day notice, and may also exercise a discretion to send the client monthly reminders of their request for further instructions, for an indeterminate period of time, until the option to cancel has been exercised or the credit amount has been depleted. Monthly reminders and follow-ups with the client shall attract a monthly administration fee as set out in the addendum hereto, for which the client shall be liable, and which may be deducted from any monies held in credit by Missing Link. 

6.   In the event that music, voice-over artists, footage and images, are used in any of the products created, the client confirms that it knows that these products are the intellectual property of the artist concerned, and will be charged accordingly. The client understands that it is the client’s responsibility to inform Missing Link of the usage of such material and how such material or music will be used. There are different licenses for commercial, internet and corporate use. Missing Link will not be held responsible for the wrong license bought should the music, voice-over, footage or images be used in a different manner as agreed upon. For commercial and internet use, there is an annual fee that the client will be responsible to pay for, on-demand, upon annual renewal. Missing Link shall not be held liable for any delays caused in the project in the event of the client furnishing the incorrect information, which must later be corrected, and the client shall be liable for any additional costs incurred in the client obtaining the correct license. The failure by the client to make payment of the applicable fee shall be deemed a material breach of contract, and usage of the material shall not be made available to the client. The client, by its signature on any proposal, fully indemnifies Missing Link against any claims, loss or damage that Missing Link may incur as a result of the client making unauthorized use of any such material, or for the breach of any copyright or royalties that are due. 
7.   Missing Link reserves the right to mix & match the budget based on the life the job takes, with the necessary notification to the client of what has been changed. This will not reflect on the total price of the job without the specific written approval from the client prior to commencement. 
8. When booking a crew member for a show, shoot or event, it is the client’s responsibility to ensure that the Missing Link crew are catered for. A well-fed team is a powerful team. 
9. We believe that people should stick to what they’re good at. While we’re amazing at what we do, we’re not good at booking travel. So it will be the client’s responsibility to organize and pay for all travel needed for the crew. This includes airfare, accommodation, and car travel. A minimum economy-class flight and 3-star accommodation is perfect. We’re not snooty like that, but if you feel that five-star with super additional treatments are the order of the day, we can comfortably upgrade our snooty factor to accommodate you. These costs are not included in the project quotation and are additional disbursements that you will be liable for. 
10. The client will be given a master copy of the final presentations and videos (where relevant) via a suitable download link upon payment of the full amount due to Missing Link, when ownership and risk of the material shall pass to the client. This should be kept by the client under lock and key, and guarded by a sleeping dragon if possible. Missing Link will not be responsible for keeping master copies of work done for a period longer than 6 (Six) -months. Proper delivery of the link to the client shall be deemed as sufficient delivery of the project and final product.

Items created may not be used for business purposes until they have been signed off as completed, and paid for in full, since ownership and risk remains with Missing Link until final sign-off and full payment has been attended to. Should the product get used for business or an event prior to signing off, we will consider this as an acceptance by the client of the client’s satisfaction with the product, and thus as the equivalent of being physically signed off and accepted as completed in full. Any changes that the client may require thereafter shall be deemed to be a new instruction and shall attract additional charges. Payment of outstanding amounts shall become immediately due and payable on the day of use of the product by the client, as envisaged herein.

In the normal course of events, clients will have 10 (Ten)-working days from the delivery of the product to view the final draft and make any required changes. If this time lapses and the client has not sent Missing Link their written instruction on the changes that they may require it is agreed that this shall be deemed as confirmation that all is in order and that the final draft has been completed to the client’s satisfaction and in full compliance with the contract specifications, and accepted as such by the client. The working files will be removed from our hard-drive  and masters will be created and sent, on condition that payment has been received in full. Any changes after this point will be billed as a new instruction. 

 

11. Please note that a maximum of 3 (Three) reverts will be allowed per product, per project. Thereafter, any changes will be charged for accordingly. 
12. While the content shall become the property of the client, the client herewith gives its consent to Missing Link to use the project for its portfolio purposes and consents to the client’s name being disclosed. Missing Link undertakes not to, and will not, under any circumstances share any strategic or confidential information contained in presentations, videos and/or events since we value your private information and our mutual relationship of trust. 
13. Any footage (stock or shot), scripting, 3D- meshes, or source code inserted in the presentation/video/events (except those supplied by the client) remains the property of Missing Link or the copyright owner at all times, and the client shall not represent such images as its own. 
14. Neither you nor we shall be liable for breach of this agreement (other than payment obligations) caused by an act of God, Force Majeure, a strike, lock-out, the ongoing interruption of electricity or water, a pandemic, or a national lock-down. In the event that any one of these problems occurs for an uninterrupted period of 3 (three) months, either party may give notice of immediate cancellation of the contract, and any amounts due for work done up to date of cancellation shall be charged for and paid in full. The parties may agree to new terms of a contract thereafter. 
15.   Credit in the form of money held by Missing Link shall mean any funds held by Missing Link in respect of a deposit payment, or further payments that are made by the client, but not yet utilized as payment towards the project. Such credit shall be utilized by Missing Link towards any payment due and owing by the client to Missing Link in terms of this agreement and any addendum hereto. In the case of cancellation of a project, Missing Link shall have the right to deduct any payments due to them by the client, prior to advancing a refund to the client, if any. In the event that a contract has been cancelled and amounts due and owing by the client to Missing Link have been paid, and there remains a sum that stands to be refunded to a client, such client agrees to a monthly administration fee in the sum of R1 200 (One Thousand Two Hundred Rand) for each month that passes that Missing Link sends out a notification for confirmation of banking account details. In the event that the client fails or refuses to provide Missing Link with banking account details in order to refund the client any credit being held, then the amount or balance held in credit by Missing Link shall pass to Missing Link after the expiry of 3 (three) years of the date of first notification to the client. 

No credit may be claimed by a client in the event that there are no funds being held by Missing Link, or where monies are still owed by the client to Missing Link. 

16. GENERAL
    
    In this Agreement, clause headings are for convenience and shall not be used in its interpretation and, unless the context clearly indicates a contrary intention –

16.1  A word or an expression which denotes any gender includes the other genders, any gender includes the other genders, a natural Person includes an artificial or juristic Person and vice versa and the singular includes the plural and vice versa.

16.2   Any reference to any statute, regulation or other legislation shall be a reference to that  statute, regulation or other legislation as at the Signature Date, and as amended or substituted from time to time;

16.3  If any provision in a definition is a substantive provision conferring a right or imposing an obligation on any party then, notwithstanding that it is only in a definition, effect shall be given to that provision as if it were a substantive provision in the body of this Agreement.

16.4  Where any number of days is to be calculated from a particular day, such number shall be calculated as excluding such particular day and commencing on the next day. If the last day of such number so calculated falls on a day which is not a Business Day, the last day shall be deemed to be the next succeeding day which is a Business Day.

16.5  Any reference to days (other than a reference to Business Days), months or years shall be a reference to calendar days, calendar months or calendar years respectively.

16.6  GOVERNING LAW:  This Agreement shall in all respects (including its existence, validity, interpretation, implementation, termination and enforcement) be governed by the law of South Africa.

16.7  Provisions Severable

All provisions and the various clauses of this Agreement are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision or clause of this Agreement which is or becomes unenforceable in any jurisdiction, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, in such jurisdiction only and only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions and clauses of this Agreement shall remain of full force and effect. The Parties declare that it is their intention that this Agreement would be executed without such unenforceable provision if they were aware of such unenforceability at the time of execution hereof.

16.8   No waiver or suspension of rights: No waiver, suspension or postponement by any Party of  any right arising out of or in connection with this Agreement shall be of any force or effect unless in writing and signed by such Party. Any such waiver, suspension or postponement will be effective only in the specific instance and for the purpose given.

16.9   Variations to be in writing: No addition to or variation, deletion, or agreed cancellation of all or any clauses or provisions of this Agreement will be of any force or effect unless in writing and signed by the Parties.

16.10  No Indulgences: No latitude, extension of time or other indulgence which may be given or allowed by any Party to the other Parties in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of the Party’s rights in terms of or arising from this Agreement or estop or preclude any such Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof.  Failure or delay on the part of any Party in exercising any right, power or privilege under this Agreement will not constitute or be deemed to be a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

17   NOTICES AND DOMICILIA

17.1 Missing Link means Padded Cell (Pty ) Ltd Missing Link a duly incorporated company with registration number 2006/011755/07, with its principle place of business being in South South Africa. Its chosen domicilium citandi et xecutandi is through email correspondence and has chosen the following e-mail addresses for delivery of any written notices or documents are info@msnglnk.com
sam@msnglnk.com
tracy@msnglnk.com 

17.2  The client is as described in their order form and the client agrees that the address provided by them shall deemed to be their domicilium citandi et executandi.

17.3  Reference in this agreement to the “Parties” shall mean Missing Link and the client and any reference to the “Agreement” shall mean this agreement and any annexures thereto.

17.4   Notices shall be deemed to have been delivered seven (7) days after postage via registered mail, or upon proof of a valid delivery report via e-mail.

18   DISPUTE RESOLUTION

18.1   In the event of there being any dispute or difference between the Parties arising out of this  Agreement, the said dispute or difference shall, unless otherwise specifically provided for in other provisions of this Agreement, on written demand by any Party, be submitted to arbitration in Johannesburg, before a single arbitrator in accordance with the AFSA rules for commercial arbitration which arbitration shall be administered by AFSA.

18.2   The parties specifically agree and consent to any and/or all disputes being heard in Johannesburg, regardless of the forum in which the dispute is lodged, unless otherwise agreed to in writing.

18.3   Should AFSA, as an institution, not be operating at that time or not be accepting requests for arbitration for any reason, then the arbitration shall be conducted in accordance with the AFSA rules for commercial arbitration (as last applied by AFSA) before an arbitrator appointed by agreement between the parties to the dispute or failing agreement within 10 (ten) business days of the demand for arbitration, then any party to the dispute shall be entitled to forthwith call upon the chairperson of the Johannesburg Bar Council to nominate the arbitrator, provided that the person so nominated shall be an advocate or attorney of not less than 15 (fifteen) years’ standing as such.  The person so nominated shall be the duly appointed arbitrator in respect of the dispute. In the event of the parties to the dispute failing to agree on any matter relating to the administration of the arbitration, such matter shall be referred to and decided by the arbitrator whose decision shall be final and binding on the parties to the dispute.

18.4   Any party to the arbitration may appeal the decision of the arbitrator or arbitrators in terms of the AFSA rules for commercial arbitration.

18.5   Nothing herein contained shall be deemed to prevent or prohibit a party to the arbitration from applying to the appropriate court for urgent or interim relief or for judgment in relation to a liquidated claim.

18.6   Any arbitration in terms of this clause (including any appeal proceedings) shall be conducted in camera and the Parties shall treat as confidential details of the dispute submitted to arbitration, the conduct of the arbitration proceedings and the outcome of the arbitration.

18.7    This clause will continue to be binding on the Parties notwithstanding any termination or cancellation of the Agreement.

18.8   The Parties agree that the written demand by a party to the dispute in terms of clause 18.1 that the dispute or difference be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, No 68 of 1969.