Last updated: 01 October 2025 - Effective Date: 15 October 2025
This Terms of Service (the “Agreement”) is between Ohsome Labs (Pty) Ltd (K2020268415) (Ohsome Agency, The Ohsome Company) and its Affiliates (together, the “Agency”) and the person or entity that purchases or otherwise uses Services from the Agency (the “Client”). The Agency and the Client are each a “Party” and together the “Parties.” By engaging the Agency or accepting Services from the Agency, the Client agrees to be bound by these terms.
For purposes of this Agreement, unless the context otherwise requires:
1.1 “Accountable Person” means the person appointed by a Party to handle privacy and data subject requests and to liaise with relevant regulators.
1.2 “Affiliate” means, in relation to a Party, any entity controlling, controlled by, or under common control with that Party.
1.3 “Agreement” means these Terms of Service together with any statement of work, proposal, schedule, order, addendum or other document expressly incorporated by reference.
1.4 “Business Day” means a day other than a Saturday, Sunday or public holiday in Johannesburg, South Africa.
1.5 “Client Materials” means all materials, data, content, images, text, logos, trademarks, or other information supplied by the Client to the Agency.
1.6 “Consumer” means a person or juristic person who qualifies as a consumer within the meaning of the Consumer Protection Act, No. 68 of 2008.
1.7 “Confidential Information” means non-public information disclosed by one Party to the other, whether written or oral, that is designated as confidential or which ought reasonably to be regarded as confidential.
1.8 “Deliverables” means the works, materials and outputs created by the Agency specifically for the Client under a statement of work.
1.9 “Direct Marketing” has the meaning given to that term in the Consumer Protection Act, No. 68 of 2008.
1.10 “Effective Date” means the date on which the Agency first commences work for the Client.
1.11 “Personal Information” has the meaning given in the Protection of Personal Information Act, No. 4 of 2013 (POPIA).
1.12 “Services” means the services described in a statement of work or other written order duly accepted by the Agency and performed pursuant to this Agreement.
1.13 “Service Order”, “Statement of Work” or “SOW” means a document executed by both Parties specifying the particular Services, fees, milestones and other project-specific terms.
2.1 The Agency shall provide the Services described in the applicable Service Order or Statement of Work. Each Service Order incorporates this Agreement by reference.
2.2 The scope, Deliverables, acceptance criteria, milestones, fees, and timelines shall be set out in the applicable Service Order. In the event of any inconsistency between a Service Order and this Agreement, the terms of this Agreement shall prevail unless the Service Order expressly states that it amends a specific clause of this Agreement and is signed by the Agency.
3.1 The Agency shall deliver Deliverables in accordance with the Service Order. The Client shall review Deliverables and provide written acceptance or written notice of deficiencies within five (5) Business Days of delivery. Failure to give timely notice shall constitute acceptance.
3.2 The Client is responsible for final approvals prior to publication or public use of Deliverables. The Client warrants that it will not hold the Agency responsible for consequences arising from its use of accepted Deliverables.
4.1 This Agreement commences on the Effective Date and continues until all Services are completed, or until terminated under this clause.
4.2 Either Party may terminate this Agreement for convenience upon thirty (30) days’ prior written notice.
4.3 Either Party may terminate for cause by written notice where the other Party materially breaches this Agreement and fails to remedy such breach within fourteen (14) days of receiving notice specifying the breach. Termination for cause is without prejudice to any other remedies available at law or in equity.
4.4 On termination, the Client shall pay for Services performed up to the effective date of termination and for any non-cancellable commitments the Agency reasonably entered into in performance of the Services. The Agency shall deliver any unpaid Deliverables on receipt of payment for outstanding fees.
5.1 Fees, expenses and payment schedules are set out in the Service Order. Unless otherwise agreed in writing, the Client shall pay a deposit of fifty percent (50%) of the total fee prior to commencement and the remainder upon completion or in accordance with milestones specified in the Service Order.
5.2 Retainers and subscription Services are billed monthly in advance and are non-refundable once the billing period has commenced, save as otherwise required by applicable mandatory law.
5.3 The Client shall pay all undisputed invoices within five (5) days of invoice date or before the specified due date on the invoice. Payments shall be made in the currency specified on the invoice to the account specified by the Agency.
5.4 If any amount is overdue, interest shall accrue on that amount at the higher of (a) the statutory rate applicable under South African law; and (b) three percent (3%) per month, compounded monthly, from the due date until payment in full. The Client shall also reimburse the Agency for all reasonable collection costs and legal fees incurred in recovering overdue amounts.
5.5 The Agency reserves the right to suspend Services and withhold Deliverables if the Client fails to pay undisputed amounts when due. The Agency shall not be liable for any loss or delay resulting from such suspension.
6.1 Deposits are non-refundable except where the Agency cancels the Service without cause or where mandatory law requires a refund.
6.2 Fees for Services already performed are non-refundable. If the Client cancels Services prior to completion, the Client remains liable for fees corresponding to work completed up to the date of termination and for non-cancellable third-party costs reasonably incurred by the Agency.
6.3 Where the Client is a Consumer and this Agreement results from Direct Marketing as defined in the Consumer Protection Act, No. 68 of 2008, the Consumer may rescind (cancel) the agreement without reason or penalty within five (5) Business Days of the later of (a) the date of the conclusion of the agreement; or (b) the date on which the Services are delivered. The Consumer must give notice of cancellation in writing and deliver such notice to the Agency by hand, email or registered post.
6.4 Upon receipt of a valid cancellation notice pursuant to clause 6.3, the Agency shall refund payments received from the Consumer within forty-five (45) Business Days of receipt of the notice. The Agency may deduct reasonable costs for goods used or for necessary restoration where applicable and permitted by law.
6.5 The Agency shall clearly disclose in writing, in the Service Order and in any direct marketing communication, the full price, any additional fees, the deposit requirement, cancellation and refund rights and the Consumer’s cooling-off right where applicable.
7.1 The Client shall: (a) provide, in a timely manner, all Client Materials, information, approvals and access reasonably required by the Agency; (b) ensure that Client Materials are accurate, complete and lawful; (c) obtain all rights, licences, releases and consents required for the Agency’s use of Client Materials and for the Deliverables; and (d) comply with all applicable laws and platform policies.
7.2 The Client warrants that its business, products and Services do not contravene applicable sanctions, export control laws or advertising platform policies. The Client shall notify the Agency promptly of any restriction or change that may affect the Agency’s performance.
7.3 The Client is solely responsible for decisions and actions taken following receipt or publication of Deliverables and for the consequences of such actions.
8.1 The Agency warrants that it will perform the Services with reasonable skill and care in accordance with the standards reasonably expected of competent service providers performing similar services.
8.2 Except for the express warranties set out in this Agreement, the Agency makes no other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
8.3 Timeframes and estimates are provided for guidance; the Agency will use reasonable endeavours to meet dates but shall not be liable for delays caused by the Client, third-party providers, or circumstances beyond the Agency’s reasonable control.
9.1 Any change to the scope, Deliverables, price or timeline must be requested in writing and approved by both Parties in a Change Order executed by authorised representatives. The Change Order shall specify any fee or timeline adjustments.
9.2 The Agency shall be entitled to charge for additional work arising from Client-caused delays, scope changes, or additional revisions beyond those included in the Service Order.
10.1 Subject to full and final payment of all amounts due, the Agency assigns to the Client all right, title and interest in and to the Deliverables specifically created for the Client under this Agreement, excluding any pre-existing Agency intellectual property.
10.2 The Agency retains all rights in its pre-existing methodologies, processes, templates, code libraries and know-how. The Agency may re-use and adapt such materials in other engagements.
10.3 The Client grants to the Agency a non-exclusive, worldwide, royalty-free licence to use Client Materials solely to perform the Services. Where the Client has not opted out under clause 15, the Agency may also use Deliverables for portfolio and marketing purposes.
11.1 Each Party shall treat Confidential Information of the other Party as confidential and shall not disclose it to any third party except as necessary to perform its obligations under this Agreement or as required by law.
11.2 Confidentiality obligations survive termination of this Agreement for a period of five (5) years, except that trade secrets shall remain confidential for so long as they retain the character of trade secrets.
12.1 The Agency shall comply with the Protection of Personal Information Act, No. 4 of 2013 (“POPIA”) and applicable data protection laws in processing Personal Information. The Agency shall process Personal Information only on documented instructions from the Client where the Client is the accountable party in respect of such Personal Information.
12.2 Data processing shall be carried out on lawful grounds such as the performance of the Agreement, the Client’s consent, compliance with a legal obligation, or the legitimate interests of the Parties to the extent permitted by law.
12.3 Data Subject Rights. Clients and data subjects have rights under POPIA, including the right to be notified of the collection of Personal Information, the right to access Personal Information, the right to request correction or deletion of Personal Information, the right to object to certain processing, and the right to withdraw consent where processing is based on consent. The Client may submit such requests in writing to the Agency’s designated contact at legal@beohsome.co.za. The Agency will acknowledge receipt within seven (7) Business Days and will respond as soon as reasonably practicable and ordinarily within thirty (30) calendar days, subject to reasonable extensions where necessary for complex matters. The Agency may require reasonable proof of identity prior to responding to such requests. The Agency may charge a reasonable fee where permitted by law and will inform the requester in advance of any fee.
12.4 Security Compromises and Notification. If the Agency suspects or confirms a security compromise affecting Personal Information, it shall notify the South African Information Regulator and affected data subjects as soon as reasonably practicable after discovery and in accordance with applicable guidance issued by the Information Regulator. The Agency will provide timely updates and take reasonable steps to mitigate harm. The Agency shall keep records of security compromises and remediation steps.
12.5 Sub-processors and Subcontractors. Where the Agency engages subcontractors or processors, the Agency shall ensure that such parties are bound by data protection obligations no less protective than those in this Agreement and POPIA.
12.6 Data Retention and Deletion. The Agency shall retain Personal Information only for as long as necessary for the purposes for which it was collected, for as long as required by law, or as otherwise agreed, and shall securely delete or anonymise Personal Information when no longer required.
13.1 The Agency may engage subcontractors, suppliers and third-party providers to perform aspects of the Services. The Agency remains responsible for the performance of the Services and shall ensure subcontractors comply with confidentiality and data protection obligations consistent with this Agreement.
13.2 The Client may not assign, transfer or delegate any of its rights or obligations without the Agency’s prior written consent. The Agency may assign this Agreement, in whole or in part, to an Affiliate or successor without the Client’s consent.
14.1 The Client acknowledges that the Agency may use artificial intelligence, machine learning, automation, third-party applications, platforms and APIs in performing the Services. The Agency uses reasonable care in selecting such tools but disclaims liability for inaccuracies, biases, errors, or infringing outputs generated by AI or third-party services, and for interruptions, suspensions or policy enforcement by third-party platforms.
15.1 Unless the Client expressly opts out in writing, the Agency may identify the Client as a client and display the Client’s name, logo and Deliverables in the Agency’s portfolio and marketing materials.
15.2 The Client may opt out at any time by sending written notice to the Agency at legal@beohsome.co.za. The Agency shall cease the specified use within a reasonable time.
16.1 During the term of this Agreement and for twelve (12) months thereafter, the Client shall not, directly or indirectly, solicit for employment or engage any employee or contractor of the Agency who was involved in performing Services for the Client without the Agency’s prior written consent. If the Client breaches this clause, the Client shall pay the Agency an amount equal to twelve (12) months’ gross salary of the relevant individual as liquidated damages.
17.1 The Agency is not required to maintain insurance for the Client’s operations, products, or Services, and the Client is responsible for its own insurance.
17.2 The Client shall indemnify, defend and hold harmless the Agency, its Affiliates and their officers, employees and agents from and against any claims, liabilities, damages, fines, penalties and expenses (including reasonable legal fees) arising from: (a) Client Materials or Client instructions; (b) the Client’s breach of any warranty or covenant under this Agreement; (c) the Client’s failure to obtain necessary rights, licences or consents; or (d) the Client’s non-compliance with applicable laws and platform policies.
18.1 Except in respect of liability arising from willful misconduct or gross negligence, or in respect of obligations that cannot be limited by law, the Agency shall not be liable for any indirect, special, incidental, punitive or consequential damages, including loss of profit, loss of revenue, loss of data, or loss of business opportunity.
18.2 The Agency’s aggregate liability arising out of or in connection with this Agreement shall not exceed the total fees actually paid by the Client to the Agency under this Agreement during the three (3) month period immediately preceding the event which gave rise to the claim, to the maximum extent permitted by applicable law.
18.3 Nothing in this Agreement shall limit liability for death or personal injury resulting from negligence, or for any liability that cannot be excluded by applicable law.
19.1 Neither Party shall be liable for delay or failure to perform any obligation caused by events beyond its reasonable control, including acts of God, pandemics, labour disputes, government orders, supply-chain interruptions, internet or utility outages, or other Force Majeure Events. The affected Party shall promptly notify the other Party and use reasonable efforts to resume performance. If a Force Majeure Event continues for more than sixty (60) days, either Party may terminate on written notice.
20.1 The Client represents and warrants that the provision of Services and the Client Materials will not cause the Agency to breach applicable sanctions, export control or anti-bribery laws or to contravene the terms of any advertising or platform policy. The Client shall promptly notify the Agency of any change in circumstances that would render this warranty untrue.
21.1 All notices required or permitted under this Agreement shall be in writing and delivered to the contact details set out in the Service Order or to legal@beohsome.co.za for the Agency. Notices shall be effective on receipt.
21.2 The Parties agree that electronic communications and electronic signatures, including email confirmations and signatures on electronic signature platforms, shall have the same validity and effect as original signatures.
21.3 This Agreement may be executed in counterparts, each of which shall constitute an original.
22.1 The Parties shall attempt in good faith to resolve disputes through negotiation between senior representatives within thirty (30) days.
22.2 If negotiation does not resolve the dispute, either Party may refer the dispute to mediation under the Arbitration Foundation of Southern Africa (AFSA) rules. Mediation shall not be binding.
22.3 If the dispute is not resolved by mediation or if either Party elects to proceed directly to arbitration, the dispute shall be finally resolved by binding arbitration under the International Chamber of Commerce Rules of Arbitration. The seat of arbitration shall be Johannesburg, South Africa, and the language of arbitration shall be English. The arbitral award shall be final and binding and may be enforced in any court of competent jurisdiction.
22.4 Notwithstanding clauses 22.2 and 22.3, nothing in this Agreement shall limit rights conferred on a Consumer under the Consumer Protection Act, No. 68 of 2008. A Consumer retains the right to seek redress from the National Consumer Commission, a consumer court, or any other forum permitted by the Consumer Protection Act. To the extent that mandatory consumer protection legislation applies, arbitration shall not be applied so as to exclude or limit those statutory rights.
23.1 This Agreement, together with any Service Order, statement of work and executed addenda, constitutes the entire agreement between the Parties and supersedes all prior agreements and representations.
23.2 The Client acknowledges it has not relied on any representation not expressly set forth in this Agreement.
23.3 If any provision is held invalid, illegal or unenforceable, such provision shall be severed and the remainder shall continue in effect.
23.4 The provisions that by their nature should survive termination shall do so, including provisions relating to intellectual property, confidentiality, indemnity and limitation of liability.
23.5 Any claim arising out of or in connection with this Agreement must be commenced within twelve (12) months from the date the cause of action arose, after which such claim is barred.
24.1 This Agreement shall be governed by and construed in accordance with the laws of the Republic of South Africa.
24.2 Subject to clause 22.4, the Parties submit to the exclusive jurisdiction of the courts of South Africa in respect of any dispute or claim arising out of or in connection with this Agreement.
24.3 The Agency may amend these Terms from time to time by publishing a revised version on its website. Any amendment shall not adversely affect the Client’s rights under an executed Service Order for Services already commenced without the Client’s prior written consent.
24.4 No failure or delay in exercising any right operates as a waiver, and a waiver of any right must be in writing.
24.5 The Parties have executed this Agreement through their duly authorised representatives by entering into a commercial engagement where the Agency will render services for an agreed consideration.