StartSmart Marketing Terms & Conditions

 

    • StartSmart Marketing (SSM) undertake to provide a professional service based on information supplied by the client.
    • SSM has a structure in place for sourcing/formatting/creating and publishing posts / infographics.
    • During the contracted month, should the client wish to spend extra money on “paid-for” adverts on Facebook, Instagram, Twitter or LinkedIn, it will be the direct financial responsibility of the client. Please note that this excludes any special packages.
    1. Your relationship with StartSmart Marketing

1.1 Your use of StartSmart Marketing’s products, services, content and website (referred to collectively as the “Service” or “Services” in this document and excluding any services provided to you or your employees by StartSmart Marketing under a separate written agreement) is subject to the terms of a legal agreement between you and StartSmart Marketing (as defined below in Section 17.1) contained in this document and/or any other document expressly referred to herein. The Services are as described on the website (www.startsmartmarketing.co.za).

This document explains how the agreement is made up and sets out some of the terms of that agreement. These Terms and Conditions will not apply if (i) you or your organisation (on whose behalf you act pursuant to Section 2.3 and 17.1) have entered into a separate written agreement with us for the Services, such as, a StartSmart Marketing Binding Order that references other StartSmart Marketing’s terms of Service, or any other written agreement for the provision of our Services, or (ii) you or your organization have purchased the Services through an authorised reseller.

1.2 Unless otherwise agreed in writing with StartSmart Marketing, your agreement with StartSmart Marketing will always include, at a minimum, the terms and conditions set out in this document. These are referred to below as the “Universal Terms”.

1.3 Your agreement with StartSmart Marketing will also include all subscription rates and payment terms applicable to the Services chosen by you (the “Payment Terms”). The Payment Terms, i) payment is due monthly upfront on the 1st of each month, and (ii) contract is for a minimum of either 3 or 6 months, thereafter it is on a month to month basis, including any related additional terms applicable to your agreement, are published on StartSmart Marketing website or are otherwise made available to you either within, or through your use of, the Service you have ordered. Depending on which Services you subscribe to, your agreement with StartSmart Marketing may also include certain terms specific to the use of such Services (the “Specific Terms”). Where Specific Terms apply to a Service (such as the terms of use of the Add-On / Extra Services, these will be accessible for you to read either within, or through your use of, that Service, or will be provided to you separately, upon your request.

1.4 The Universal Terms, together with any related additional Specific Terms applicable to your subscription and the Payment Terms, form a legally binding agreement between you and StartSmart Marketing in relation to your use of the Services. It is important that you take the time to read them carefully. Collectively, this legal agreement is referred to below as the “Terms”.

1.5 If there is any contradiction between what the Specific Terms say and what the Universal Terms say, then the Specific Terms shall take precedence in relation to that Service.

1.6 StartSmart Marketing has a structure in place for sourcing / formatting / creating and publishing posts / infographics and no more than 5 hours will be spent on such activity per month.

    1. Accepting the Terms

2.1 In order to use the Services, you must firstly agree to the Terms. You may not use the Services if you do not accept the Terms.

2.2 You can accept the Terms by (A) clicking to accept or agree to the Terms, where this option is made available to you by StartSmart Marketing; (B) by payment for the Services; or (C) by actually agreeing to use the Services. By performing one of these three options, you understand and agree that StartSmart Marketing will treat your use of the Services as acceptance of the Terms from that point onwards.

2.3 You may not use the Services and may not accept the Terms if (A) you are not of legal age to form a binding contract with StartSmart Marketing; or (B) when contracting on behalf of an entity, you are not authorized to legally bind your company or organization to such terms; or (C) you are a person or entity barred from receiving the Services under the laws of the Republic of South Africa, or other countries including the country in which you are resident or from which you use the Services.

2.4 If you accept the Terms in the user interface for a Service, by making a payment, or by commencing the use of the Service, we recommend that you print off or save a local copy of the Terms for your records before you continue.

2.5 The Services are provided by StartSmart Marketing for consideration. The up-to-date prices applicable to your use of the Services will be stated to you in writing, and the Extra Services / Add-On Services will be agreed upon, in writing for configurations of the Services eligible for online purchases and by using the Services at a particular moment you agree to the prices agreed upon as of that moment.

2.6 You can pay for the Services by making an Electronic Funds Transfer (EFT) into StartSmart Marketing’s bank account. StartSmart Marketing have the facility to create a PayFast link via the PayFast Payment Portal, however the client will be responsible for a 5% handling charge in addition to the sum of the invoice owed by the Client. In addition, you acknowledge and agree that the initial price may change after the initial contract expires. You will however always be informed if there are any price modifications, prior to the end of your current contract.

2.7 StartSmart Marketing is not responsible for the payment processing provided by any third party.

2.8 Each party will be responsible for payment of any taxes applicable to its own income and activities in connection with the Services.

2.9 All invoices and quotations, and any applicable charges are exclusive of Valued Added Tax (VAT), and this will apply until such time as StartSmart Marketing circumstances change, thereafter Value Added Tax (VAT) will be charged at the South African National VAT %.  StartSmart Marketing shall be entitled to vary the charge anytime with written notice to the Clients.

    1. Language of the Terms

3.1 The Terms are provided in English.

    1. Provision of the Services by StartSmart Marketing

4.1 StartSmart Marketing may have subsidiaries and affiliated legal entities in other countries. At times, these companies or their employees may serve as contact points with respect to the Services provided to you by StartSmart Marketing. Even where StartSmart Marketing’s subsidiaries or affiliates are your primary contact points, StartSmart Marketing as the Services provider will remain ultimately responsible for the provision of Services hereunder.

4.2 StartSmart Marketing is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which StartSmart Marketing provides may change from time to time without prior notice to you.

4.3 As part of this continuing innovation, you acknowledge and agree that StartSmart Marketing may permanently or temporarily stop providing the Services (or any features within the Services) to you or to users generally at StartSmart Marketing’s sole discretion, without prior notice to you.

4.4 You understand and agree that StartSmart Marketing may at its full discretion cancel your account for (i) non-payment or (ii) other breach of the Terms if such breach is material, and that in such case you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account. If your access to the Services had been disabled for non-payment or other (material) breach of the Terms, and subsequently was reactivated (e.g. after the breach had been cured), you still remain obliged to pay the Services fees for the subscription term including the period for which you could not access the Services as a result of your default; you will not be entitled to any compensation or refunds (whether monetary or in the form of extra days of Services / extended subscription term) for the period for which you could not use the Services. Such de-activation of Service shall not be considered a breach of the Terms by StartSmart Marketing. Further, the foregoing is without prejudice to StartSmart Marketing’s right to terminate the legal agreement embodied in the Terms for material breach pursuant to Section 11.3 of the Terms.

    1. Your use of the Services

5.1 You may be required to provide identification, contact or similar details as part of the registration process for the Service or as part of your continued use of the Services. You agree that any registration information you give to StartSmart Marketing will always be accurate, correct and up to date.

5.2 You agree to use the Services only for purposes that are permitted by (A) the Terms; (B) any applicable law, regulation, generally accepted practices, or guidelines in the relevant jurisdictions (including any laws regarding the export of data to and from South Africa, UK, the EU, the United States or other relevant countries); and (C) any other applicable rules (including, without limitation, Facebook, Twitter and other social media platform rules).

5.3 You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).

5.4 Unless you have been specifically permitted to do so in a separate agreement with StartSmart Marketing, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. The Services can be used by you only for your own internal business purposes. You may not use the Services for the benefit of any third parties. You acknowledge that use of the Services in breach of this Section 5.5 will be considered a material breach of these Terms, with all consequences resulting therefrom.

5.5 You agree that you will not engage in any activity that may amount to the misuse of our Services or that seeks to circumvent the Services’ terms. For example, if StartSmart Marketing provides you with any portion of a Service for free (as part of a trial, pilot or otherwise), you may not engage in excessive use of the Service, beyond what is permitted by the free Service (and as advertised for that free Service at the time of the relevant promotion). StartSmart Marketing reserves the right to limit the customer’s activity on any of its free Services for any reason and without notice.

5.6 You agree that you are solely responsible for (and that StartSmart Marketing has no responsibility to you or to any third party for) any breach of your obligations under the Terms and for the consequences (including any loss or damage which StartSmart Marketing may suffer) of any such breach.

    1. Privacy and your personal data

6.1 We are serious about privacy of all individuals who use our Services or whose personal data we process.

6.2 We collect personal data when you register an account with us, complete an application form, or otherwise interact with us. We process user personal data to provide and administer the Service and communicate with you, to provide a better user experience, inform you of new Services or Service features, and, in limited circumstance, to protect the Services and our rights. Our Services consist of social media content creation. The type and scope of data obtained from social media platforms depends on the type of the permissions granted by the respective platforms, and on the administrative permissions you grant to us to your social media pages or properties, where applicable. The nature and extent of the type of personal data processed, the purposes and legal basis on which we process personal data, as well as the organisational and technical measures that we implemented to ensure the security of processing, are described in our Privacy Policy section, which applies to the processing of personal data within or in connection with our provision of Services to you and sets out our commitment to protecting personal data and privacy of individuals.

6.3 StartSmart Marketing has implemented and will maintain appropriate technical and organizational measures, internal controls, and information security routines in accordance with good industry practice and to protect your data against accidental loss, destruction, or alteration; unauthorized disclosure or access (including but not limited to taking reasonable steps to ensure the reliability of employees having access to your data and providing for limited access rights and access controls; authentication; personnel training; regular back up; data recovery and incident management procedures; restrictions on storing, printing and disposal of personal data; software protection of devices on which personal data are stored; etc.); or unlawful destruction.

6.4 Data collected from you may be transferred to, and stored and processed in, the United States or any other country in which StartSmart Marketing or its affiliates, or subcontractors, suppliers or vendors maintain facilities, subject to StartSmart Marketing implementing such appropriate legal mechanisms:

6.4.1   If these Terms (or any contract governed by these Terms) or the Content provided and/or made available on the Website are regulated by or subject to the Consumer Protection Act No 68 of 2008, as may be amended from time to time (the “Consumer Protection Act“), the Protection of Personal Information Act, 4 of 2013 (“POPI“) or other laws, it is not intended that any provision of these Terms contravene any provision of the Consumer Protection Act, POPI or such other laws. Therefore, all provisions of these Terms must be treated as being qualified, to the extent necessary, to ensure that the provisions of the Consumer Protection Act, POPI and such other laws are complied with.

6.4.1.1            No provision of these Terms (or any contract governed by these Terms):

6.4.1.2            does or purports to limit or exempt us from any liability (including, without limitation, for any loss directly or indirectly attributable to our gross negligence or willful default or that of any other person acting for or controlled by us) to the extent that the law does not allow such a limitation or exemption;

6.4.1.3            requires you to assume risk or liability for the kind of liability or loss, to the extent that the law does not allow such an assumption of risk or liability; or

6.4.1.4            limits or excludes any warranties or obligations which are implied into these Terms (or any contract governed by these Terms) by the Consumer Protection Act, POPI or other applicable laws (to the extent applicable) or which we give under the Consumer Protection Act, POPI, or other applicable laws (to the extent applicable), to the extent that the law does not allow them to be limited or excluded.

6.4.2         as required by the EU law to ensure an adequate level of personal data protection by the third-party processors, such as the controller-to-processor Standard Contractual Clauses approved by the European Commission (2010/86/EU) or Privacy Shield approved by European Decision (2016/1250) for data transfers from the EU to the USA and other third countries.

6.5 You agree that StartSmart Marketing may use aggregated and anonymised data derived from the data provided by you or collected on social media platforms such as user behaviour and activities for its own statistics, for auditing, for the purposes of product and market research and analytics (which help StartSmart Marketing to optimise and improve its Services their usability, the range of Services, and to develop new products and services), and for benchmarks and other analyses. StartSmart Marketing may publish such anonymised data and share them with third parties outside of StartSmart Marketing; however, StartSmart Marketing will not directly or indirectly transfer any data received from you to (or use such data in connection with) any ad network, ad exchange, data broker, or other advertising or monetization related toolset.

    1. Content in the Services

7.1 You understand that all information such as, without limitation, data files, written text, computer software, music, audio files or other sounds, photographs, and videos or other images (all such information being hereinafter referred to as the “Content”) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such Content originated.

7.2 You should be aware that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services (if any), may be protected by intellectual property rights owned by the sponsors or advertisers who provide such Content to StartSmart Marketing (or by other persons or companies on their behalf), and that the Content may include sensitive personal data. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on such Content (either in whole or in part), unless you have been specifically told that you may do so by StartSmart Marketing or by the owners of that Content, in a separate agreement.

7.3 You understand you use the Services at your own risk.

7.4 You agree that you are solely responsible for (and that StartSmart Marketing has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which StartSmart Marketing or third parties may incur and including any other legal liability, whether liability under civil, commercial, tort, penal or administrative law or any other legal theory) by doing so. You may not use the Services to intentionally transmit or make public infringing, libelous, or otherwise unlawful or tortious Content or to store, transmit or make public any Content in violation of third party’s intellectual property or similar rights. You shall indemnify and hold StartSmart Marketing harmless from all claims and all liabilities, costs, proceedings, damages and expenses awarded against, or incurred or paid by StartSmart Marketing as a result of or in connection with your breach of any third party’s intellectual property or similar rights.

    1. Proprietary rights

8.1 You acknowledge and agree that StartSmart Marketing (or StartSmart Marketing’s licensors) owns all legal rights, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by StartSmart Marketing and that you shall not disclose such information without StartSmart Marketing’s prior written consent.

8.2 Unless you have agreed otherwise in writing with StartSmart Marketing, nothing in the Terms gives you a right to use any of StartSmart Marketing’s trade names, trademarks, service marks, logos, domain names and any other distinctive brand features. For the avoidance of doubt, if any reports or similar outputs from the Services (hereinafter “Reports”) generated by you through the use of the Service include StartSmart Marketing’s trade name, trademark, service mark, logo, domain name or other distinctive StartSmart Marketing’s brand features, their use in connection with that Report is permitted and Section 8.4 below shall apply.

8.3 Other than the limited license set forth in Section 9, StartSmart Marketing acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with StartSmart Marketing, you agree that you are responsible for protecting and enforcing those rights and that StartSmart Marketing has no obligation to do so on your behalf.

8.4 You agree not to remove, obscure, or alter any proprietary rights notices (including copyright and trade mark notices) which may be affixed to or contained within the Services.

8.5 Unless you have been expressly authorised to do so in writing by StartSmart Marketing, you agree that in connection with the Services, you will not use any trade mark, service mark, trade name, logo of any third party company or organisation in a way that is likely or intended to cause confusion about the owner or authorised user of such marks, names or logos.

    1. Licence from StartSmart Marketing

9.1 StartSmart Marketing gives you a worldwide, royalty-free, non-assignable and non-exclusive right and licence to access and use the Services through a contract basis, for the term and in the scope designated by the Terms. Further, StartSmart Marketing gives you a worldwide, royalty-free, perpetual and non-exclusive right and licence to access and use, reproduce, display, distribute, and create derivative works of, reports that you generate through your use of the Services. The licence granted in this Section 9.1 is for the sole purpose of enabling you (users within your organization) to use and enjoy the benefit of the Services as provided by StartSmart Marketing, in the manner permitted by the Terms (in particular Section 5). You may not use the Services for the benefit of any third parties.

9.2. You may not access and/or use the Service and the underlying content creation in order to build a similar or competitive product. You further may not (and you may not permit anyone else to) attempt to gain unauthorized access to the Services, its particular features or third-party content created by or for another StartSmart Marketing’s customer, interfere with or disrupt the integrity or performance of the Services or third-party content contained therein or perform penetration test, denial of service simulation or automated vulnerability scan of the Services.

9.3 Unless StartSmart Marketing has given you specific written permission to do so, you may not assign (or grant a sub-licence of) your rights, grant a security interest in or over your rights, or otherwise transfer any part of your rights granted hereunder.

9.4 You acknowledge that any breach of Section 9 by you or your users shall constitute a material breach of the Terms, with all consequences arising therefrom.

    1. Content licence from you

10.1 You retain copyright and any other intellectual property rights you already hold in Content which you submit, post or display on or through the Services. By submitting, posting or displaying the Content on or through, the Services, you give StartSmart Marketing a worldwide, royalty-free, and non-exclusive licence to use, reproduce, adapt, modify, and publish (on your behalf and pursuant to your instructions) on social networks any Content which you submit, post or display on or through the Services. The licence granted in this Section 10.1 is for the sole purpose of enabling StartSmart Marketing to display, distribute, improve and promote the Services to you or your users.

10.2 If you provide, as part of your use of StartSmart Marketing’s Services or as part of the Content which you submit, post or display on or through the Services, any photograph or other materials protected by personality or privacy rights, you specifically agree that StartSmart Marketing may use such photograph or other materials for the sole purposes of providing the Services.

10.3 You understand that StartSmart Marketing, in performing the required technical steps to provide the Services to you, and to improve the Services, may (A) transmit or distribute your Content over various public networks and in various media; and (B) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit StartSmart Marketing to take these actions.

10.4 You confirm and warrant to StartSmart Marketing that you have all the rights, power and authority necessary to grant the above licence.

    1. Ending your relationship with StartSmart Marketing

11.1 The Terms will continue to apply during the term of your original contract specified within the Services and during any renewed (extended) term as specified in Section 11.5 below, or until terminated by either you or StartSmart Marketing as set out in Section 11.2 and 11.3 below.

11.2 StartSmart Marketing may at any time, by sending a notice, terminate its legal agreement with you embodied in the Terms if (A) you have breached any provision of the Terms and failed to cure the breach (where such breach is capable of being cured) within a reasonable cure period provided by the other party, or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms; or (B) StartSmart Marketing is required to do so by law (for example, where the provision of the Services to you is or becomes unlawful); or (C) the partner with whom StartSmart Marketing offered the Services to you, or whom StartSmart Marketing uses or whose cooperation StartSmart Marketing needs in order to offer the Services to you (such as the social media platforms), has terminated its relationship with StartSmart Marketing or ceased services that are essential for the Services; or (D) StartSmart Marketing is transitioning to no longer providing the Services to users in the country in which you reside or from which you use the Services; or (E) the provision of the Services to you by StartSmart Marketing is, in StartSmart Marketing’s opinion, no longer commercially viable. In the event you terminate the agreement for a material breach by StartSmart Marketing as described in (A) above, or if StartSmart Marketing ceases to provide any part or all of the Services during the agreement term for reasons stipulated in (C), (D) or (E) above, you shall not be required to make any payments for Services beyond the date of when you terminated the agreement or when StartSmart Marketing ceased to provide the Services (as applicable). In the event you pre-paid the Services, StartSmart Marketing shall in such cases refund the pro-rata proportion of the pre-paid monthly fee.

11.3 Nothing in this Section 11 shall affect StartSmart Marketing’s rights regarding provision of Services under Section 4 of the Terms. Nothing in this Section 11 shall affect your early termination rights under the applicable law.

11.4 If you do not notify StartSmart Marketing that the services are to terminate, giving thirty (30) day’s notice, after the contract end-date, and provided the agreement has not been terminated early either by StartSmart Marketing or you as stipulated in the previous sections, then the following will apply: Your legal agreement with StartSmart Marketing embodied in the Terms shall automatically renew (i.e. be extended, repeatedly) for another term corresponding to your original (preceding) contract term, unless you or StartSmart Marketing provide notice to the other of the intent to terminate the agreement within thirty (30) days before the end of the then current term. You will be notified of the upcoming renewal and may notify StartSmart Marketing of your intention not to renew by unsubscribing, in writing, from the automatic renewal within the user interface for the Services.

11.5 When your legal agreement with StartSmart Marketing comes to an end, all of the legal rights, obligations and liabilities that you and StartSmart Marketing have benefited from, been subject to (or which have accrued over time whilst your legal agreement with StartSmart Marketing has been in force) and/or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Section 17.7 shall continue to apply to such rights, obligations and liabilities indefinitely.

11.6 Further, you understand and agree that the terms and conditions contained in the Terms (including the Payment Terms) will continue to apply to any renewed (extended) term pursuant to Section 11.4 above, as well as to any other continued use of the Services beyond the pre-paid subscription term, as they applied to the original subscription term, and you undertake to pay for the continued use of the Services in accordance with the Payment Terms. You expressly and irrevocably authorise StartSmart Marketing to invoice you, for the settlement of such StartSmart Marketing’s consideration.

    1. Exclusion of Warranties

12.1 The Services are provided “as is” and StartSmart Marketing, its subsidiaries and affiliates, and its licensors give you no warranty with respect to them. Services features that inter-operate with social media networks depend on the continuing availability of those social media network’s APIs, data, application, programs and services for use with the Service. If any social media network ceases to make its APIs, data, application, programs or services available on reasonable terms for the Service, StartSmart Marketing may cease providing such Service features upon reasonable prior written notice to you pursuant to Section 11.3 (C). StartSmart Marketing is not liable or responsible for the quality, accuracy or truthfulness of services or information obtained from social media networks and used within the Services or for interruption of access to such information caused by downtime or unavailability of the social media networks. Social media network content is not created or edited by StartSmart Marketing. StartSmart Marketing expressly disclaims and has no responsibility or liability for any social media network content that may be collected, received or created by you or your users in use of the Service.

12.2 In particular, StartSmart Marketing, its subsidiaries and affiliates, and its licensors do not represent or warrant to you that (A) your use of the Services will meet your requirements; (B) your use of the Services will be uninterrupted, timely, secure or free from error; (C) any information obtained by you as a result of your use of the Services will be accurate or reliable; and (D) that defects in the operation or functionality of any Software used to provide the Services will be corrected.

12.3 No conditions, warranties or other terms (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description) apply to the Services except to the extent that they are expressly set out in the Terms.

12.4 Nothing in the Terms shall affect those statutory rights which you are always entitled to as a consumer and that you cannot contractually agree to alter or waive.

    1. Limitation of liability

13.1 Nothing in these Terms shall exclude or limit StartSmart Marketing’s liability for losses which may not be lawfully excluded or limited by applicable law.

13.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, STARTSMART MARKETING WILL NOT BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES), DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THESE TERMS, THE SERVICES, MATERIALS, OR THE FAILURE TO PERFORM OUR OBLIGATIONS.

13.3 Subject to overall provision in Section 13.1 above, StartSmart Marketing, its subsidiaries and affiliates, and its licensors shall not be liable to you for any indirect or consequential losses which may be incurred by you. Indirect and consequential losses shall include (A) any loss of profit (whether incurred directly or indirectly), loss of goodwill or business reputation, or any loss of data suffered by you; (B) loss or damage which may be incurred by you as a result of (i) any reliance placed by you on the completeness, accuracy or existence of any advertising, or as a result of any relationship or transaction between you and any advertiser or sponsor whose advertising appears on the Services; (ii) any changes which StartSmart Marketing may make to the Services, or for any permanent or temporary cessation in the provision of the Services (or any features within the Services); (iii) the deletion of, corruption of, or failure to store, any Content and other communications data maintained or transmitted by or through your use of the Services; (iii) your failure to provide StartSmart Marketing with accurate account information; (iv) your failure to keep your password or account details secure and confidential.

13.4 The limitations of StartSmart Marketing’s liability to you in Section 13.3 above shall apply whether StartSmart Marketing has been advised of or should have been aware of the possibility of any such losses arising.

13.5 StartSmart Marketing’s liability for damage incurred by you as a result of or in connection with the Services shall be limited to direct damages up to the amount you paid to StartSmart Marketing for the Services giving rise to that liability during the last  month before the occurrence of StartSmart Marketing’s liability (or amount corresponding to a three-month Service fee, as applicable). StartSmart Marketing and you agree that this limitation reflects the damage that can be foreseen at the time of conclusion of this legal agreement between you and StartSmart Marketing, considering all circumstances the parties know or should know while exercising due care and that can arise from a breach of StartSmart Marketing’s obligations under these Terms. To the extent permitted by applicable law, StartSmart Marketing accepts no liability in relation to your use of any Services provided free of charge.

    1. Advertisements

14.1 Some of the Services, in particular free Services, may be supported by advertising revenue and may display advertisements and promotions. These advertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.

14.2 The manner, mode and extent of advertising by StartSmart Marketing on the Services are subject to change without specific notice to you.

14.3 In consideration for StartSmart Marketing granting you use of the Services, you agree that StartSmart Marketing may place such advertising on the Services.

    1. Other content

15.1 The Services may include hyperlinks to other web sites or content or resources. StartSmart Marketing has no control over any web sites or resources which are provided by companies or persons other than StartSmart Marketing.

15.2 You acknowledge and agree that StartSmart Marketing is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such web sites or resources.

15.3 You acknowledge and agree that StartSmart Marketing is not liable for any loss or damage which may be incurred by you as a result of the availability of those external sites or resources. In addition, you acknowledge and agree that StartSmart Marketing is not liable for any damage which may be incurred by you as a result of any reliance you may have placed on the completeness, accuracy, or existence of any advertising, products, or other materials on, or available from, such web sites or resources.

    1. Changes to the Terms

16.1 StartSmart Marketing may make changes to the Universal Terms or Specific Terms from time to time. When these changes are made, StartSmart Marketing will make a new copy of the Universal Terms available at https://startsmartmarketing.co.za/termsconditions/ and any new Specific Terms will be made available to you from within, or through, the affected Services.

16.2 You understand and agree that if you use the Services after the date on which the Universal Terms or Specific Terms have changed, StartSmart Marketing will treat your use as acceptance of the updated Universal Terms or Specific Terms.

    1. General legal terms

17.1 “StartSmart Marketing” or “we” means StartSmart Marketing (SSM) whose principle place of business is 39 Malgas Road, Cape Town, 7441, South Africa. “You” means the individual that is entering in to the legal agreement for the Services with us in a manner anticipated in Section 2.2 above, or that is using the Services, or who is registered with StartSmart Marketing. Equally, “you” means any entity on whose behalf StartSmart Marketing’s Services were purchased by an authorized individual.

17.2 Sometimes when you use the Services, you may (as a result of or through your use of the Services) use a service or download a piece of software or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, the Terms do not affect your legal relationship with these other companies or individuals and you remain responsible for complying with the terms of use of such third party’ services, software or goods. If you use third parties’ services, software or goods while using the Services, you declare that you act in compliance with their terms of use. In particular, if you use Facebook, Twitter or YouTube while using the Services, you must comply with the applicable Facebook (https://www.facebook.com/terms.php), Twitter (https://twitter.com/en/tos), YouTube (https://www.youtube.com/t/terms), Instagram (https://help.instagram.com/581066165581870), LinkedIn (https://www.linkedin.com/legal/user-agreement) or Google (https://www.google.com/intl/en/policies/privacy/) rules in versions effective as of the date of use of such services.

17.3 The Terms constitute the whole legal agreement between you and StartSmart Marketing and govern your use of the Services (excluding any services which StartSmart Marketing may provide to you under a separate written agreement), and completely replace any prior agreements between you and StartSmart Marketing in relation to the Services.

17.4 You agree that StartSmart Marketing may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Services website.

17.5 The parties agree that if one of them does not exercise or enforce any legal right or remedy which is contained in the Terms (or which such party has the benefit of under any applicable law), this will not be taken to be a formal waiver of such party’s rights and that those rights or remedies will still be available to it.

17.6 If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.

17.7 The Terms, and your relationship with StartSmart Marketing under the Terms, shall be governed by South African law. You and StartSmart Marketing agree to submit to the jurisdiction of the courts of South Africa to resolve any legal matters arising from the Terms and the venue of the court of first instance shall be the Municipal Court in South Africa, as applicable. Notwithstanding this, you agree that StartSmart Marketing shall still be allowed to apply (A) for payment orders (or otherwise enforce payment for Services provided under the Terms) in the jurisdiction in which you have your registered seat or principal place of business, and (B) for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

Annex 1 – Data processing agreement

Preamble

This Annex 1 – Data processing agreement shall only apply if StartSmart Marketing provides to you Services or Services’ features within which we only have access to certain personal data because you give us your permission, authorization, token or other mechanism that allows us to access, collect or otherwise process such data, and thereby instruct us to process such personal data on your behalf; for example:

    • Customer care feature of our Service “Community” which involves the access by StartSmart Marketing to, and storing and management of, communication between you and your end-customers affected via your social network pages (e.g. Facebook messages); or
    • Any other similar Services or Services’ features that you may activate and that would require StartSmart Marketing to access and process any personal data associated with your social network profile, page or account which we cannot access directly from social networks (via API) without your permission and with respect to which you are the data controller; or
    • Any other personal data that you entrust to us for processing on your behalf, by written instruction, where such processing is necessary for us to provide you our Services.

As a data controller with respect to any personal data that you instruct us to process in the context of the Services, you are responsible for the lawfulness of such processing, including the requisite legal titles (consents or other, as may be applicable) for processing. StartSmart Marketing is not liable for any misprocessing of data that could occur by your provision of the data to StartSmart Marketing or your instruction to StartSmart Marketing to process such data on your behalf.

This Annex 1 – data processing agreement does not apply in situations where we collect and process personal data as data controllers (see our Privacy Policy for further details).

    1. Definitions

DPA” means the data processing agreement included in this Annex 1;

Services” 1.1 means, for the purpose of this Annex 1, all Services StartSmart Marketing provides to you under the Terms as your data processor, as specified in the Preamble of this DPA;

Terms” means the Terms to which this Annex 1 is appended to.

    1. Object / Scope of the processing

The object/scope of this DPA is the processing of personal data in connection with the provision of the Services specified in this DPA.

    1. Duration

The duration of this DPA shall correspond to the term of your Services contract.

    1. Specification of Processing (nature, purpose, type of personal data and categories of data subjects)

4.1 The nature and purpose of the intended processing are defined in the Terms and correspond to the provision of the Services defined in this DPA.

4.2 Each and every transfer of personal data beyond South Africa or the EU / EEA shall only take place if the specific conditions as laid down in Art. 44 et seq. GDPR have been fulfilled. When transferring personal data to a country outside of the EU/EEA, we ensure that our sub-processors are bound by the standard contractual clauses or, in case of US companies, are certified under the Privacy Shield.

4.3 The types of personal data processed under this DPA and categories of data subjects are specified in the Terms and in the Privacy Policy referenced in Section 7 of the Terms. The scope of personal data is determined and controlled by you in your sole discretion, and may include, without limitation:

    • Any personal data that your end-customers (or any other data subjects, as may be applicable) decide to submit to you via your social media pages, using direct messages (e.g. Facebook messages), which will be administered by StartSmart Marketing as a data processor within the customer care feature of StartSmart Marketing’s Service “Community” (or other Service features, as may be applicable). Such personal data may include, without limitation, data subjects’ contact information (such as name, address, company, email, telephone), identification data (date of birth, birth number), and other information relating to the data subjects’ activities; and
    • Information about data subjects’ behaviour on StartSmart Marketing’s platform and/or on social media.

The exact scope of personal data processed will always depend on the specific Service you use.

    1. Technical and Organizational Measures

5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, we are obliged to implement appropriate technical and organizational measures in such a manner that the processing of personal data will meet the requirements of applicable data protection law, in particular POPI, the GDPR and this DPA.

5.2. You hereby acknowledge and agree that these measures are appropriate and enough to conform to POPI and the GDPR. Further, StartSmart Marketing has implemented information security management in accordance with the requirements of information security standard ISO 27001.

    1. Rectification, restriction, access and erasure of data

6.1 We will only erase or block personal data upon instruction issued by you. In case of requests regarding the rectification, restriction or the erasure directly addressed to us by a data subject, we will inform you about such request without undue delay.

6.2 Where appropriate we will assist and support you in fulfilment of your obligations under POPI and the GDPR to respond to requests for exercising the data subject’s right, the ‘right to be forgotten’, rectification, restriction, data portability and access rights.

6.3 You hereby agree that StartSmart Marketing shall not be liable if you do not take action on the data subject’s request, or if you do not respond correctly or in a timely manner.

    1. Our obligations

7.1 We undertake to:

    • Process the personal data within the Services specified in this DPA only on documented instructions from you unless processing is required by applicable laws to which we are subject to, in which case we shall, to the extent permitted by applicable laws, inform you of that legal requirement before the relevant processing of that personal data;
    • Inform you if we consider that an instruction violates data protection laws or regulations. We shall then be entitled to suspend the execution of the relevant instructions;
    • Ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
    • Taking into account the nature of the processing, assist you by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligation to respond to requests for exercising the data subject’s rights;
    • Assist you in ensuring compliance with the obligations pursuant to the POPI Act and Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to us;
    • At your choice, delete or return all the personal data to you after the end of the provision of Services relating to processing, and delete existing copies unless applicable law requires storage of the personal data;
    • Make available to you, information necessary to demonstrate our compliance with the obligations laid down in this DPA.
    1. Sub-processing

8.1 We shall engage another processor (i.e. a sub-processor) only in accordance with this DPA. The mechanism hereby stipulated shall be considered a general written authorisation from you pursuant to the POPI Act and Article 28 par. 2 of the GDPR.

8.2 If we engage another processor for carrying out specific processing activities on your behalf, the same obligations as set out in this DPA shall be imposed on that other processor by way of a written contract.

8.3 The sub-processors currently engaged by us and hereby authorized by you are listed in the Privacy Policy. We will inform you of any intended changes concerning the addition or replacement of other processors, including full details of the processing to be undertaken by the new processor(s), giving you the opportunity to object to such changes.

8.4 If you have a reasonable basis to object to our use of another new processor, you shall notify us promptly in writing within 5 days after being notified. For the avoidance of doubt, you hereby agree that if you are not able to show evidence that the new processor provides an unacceptable risk to the protection of personal data (e.g., the other processor has a history of security breaches) or is your direct competitor, it would be unreasonable for you to object if the other processor has passed our vendor security evaluation.

8.5 Notwithstanding the foregoing, if you object to the engagement of another processor and your objection is not unreasonable, the parties will come together in good faith to discuss an appropriate solution. We may choose not to use the intended processor or engage the processor only after we take the corrective steps and / or measures requested by you.

    1. Miscellaneous

10.1 Unless otherwise stipulated herein, the provisions of the Terms shall apply, including any exclusions and limitation of warranties and liabilities provided therein. Provisions in this DPA shall have precedence over any provisions of the Terms relating to the processing of personal data by StartSmart Marketing in the position of a data processor, if any.