1. acceptance of terms
1.1 These Terms of Service (this “Agreement”) between ThreeOhFive Agency (“we”, “us” or “ThreeOhFive / 305”) and you govern your access and use of our web platform made available through www.threeohfive.agency (this “Site”) and the subscription or other services we provide (the “Services”). By using this Site and accessing our Services in any manner, you acknowledge that you have read, understood, and agree to be bound by this Agreement.
This Site is controlled and operated by us from our offices within South Africa. We make no representation that materials in the Site are appropriate or available for use in other locations, and access to them from territories where its contents are illegal is prohibited. Those who choose to access this site from locations outside of South Africa are responsible for compliance with all applicable laws.
We may update this Agreement from time to time. By continuing to use this Site and the Services after the update, you accept the update in its entirety. All updates are effective upon posting. We encourage you to check the “Terms of Service” link on the home page each time you visit this Site, so you are aware of any updates.
2. privacy policy
2.1 Our privacy policy, which can be found at https://threeohfive.agency/privacy-policy/ (the “Privacy Policy”), describes how we may use your personal information. By continuing to use this Site, you accept the Privacy Policy, which is incorporated herein by reference. If you object to your personal information being used as described in the Privacy Policy, please leave this Site immediately. You must be at least age 18 to access this Site.
the services
3.1 Upon your adherence to this Agreement, alongside your enrollment in a relevant plan and prompt payment submission, we commit to providing you access to the designated Services throughout your subscribed term. We will strive to ensure the availability of the Services, barring scheduled downtime and unforeseen emergency maintenance, through reasonable means. Please note that we retain the right to alter, substitute, or cease the Services at our discretion, without prior notification..
3.2 You are required to adhere to the terms outlined in the Agreement when accessing and utilising the Services. This entails: (i) supplying precise, up-to-date, and comprehensive details about yourself whenever prompted by any form on the Site ("Registration Data"); (ii) ensuring the Registration Data remains accurate, current, and complete by promptly updating it; (iii) safeguarding any password and identification information securely; (iv) promptly informing us of any unauthorised access to your account; (v) acknowledging sole responsibility for all activities conducted under your account. Each user of the Services must possess a distinct username and password. It is imperative to provide a valid email address for each individual authorised to access your account. Additionally, you agree to furnish any other information reasonably requested by us.
3.3 It is your responsibility to acquire and uphold all necessary telecommunication, broadband, and computer equipment and services required for accessing and utilising the Services, including the payment of associated charges.
3.4 Your account may be terminated at our discretion, without prior notice or liability, if we determine that you: (i) breach this Agreement; (ii) deviate from our model standards; (iii) engage in the sharing of usernames or passwords; (iv) contravene our core values; or (v) misuse our services or team, which includes employing our services for unlawful activities.
3.5 The term "Deliverables" refers to content crafted and supplied to you in response to your design or project specifications. It's important to note that Deliverables exclude Licensed Content, which is governed by specific licence limitations.
3.6 The term "Licensed Content" encompasses pre-existing content elements, whether stock or otherwise, that we either own or have licensed from a third party. This content includes artwork, stock photographs, audio, typeface, video, designs, and written material. While you maintain sole and exclusive ownership of all rights, title, and interest in the Deliverables, it's important to note that any Licensed Content integrated into the Deliverables is governed by the licence outlined in Section 5 below. Please be aware that you are not granted any rights to use the Licensed Content beyond what is expressly stated herein.
3.7 Subject to your ongoing adherence to this Agreement, which includes making timely payments for associated fees, we provide you with a limited, revocable, non-exclusive, non-sublicensable, and non-transferable licence to access and utilise the Services solely for your internal business needs. It is prohibited to use the Services to monitor their availability, performance, or functionality for competitive purposes. Furthermore, you must not, and must not allow any third party to: (a) engage in reverse engineering, decompiling, disassembling, or attempting to uncover the source code, object code, or underlying structures, ideas, or algorithms of the Services, except to the extent specifically permitted by statutory law; (b) modify, translate, or create derivative works based on the Services; (c) employ the Services for any purpose other than your own internal requirements; or (d) utilise the Services in any manner contrary to the Agreement and in violation of all applicable laws and regulations, including, but not limited to, privacy and intellectual property laws.
3.8 You provide us with a perpetual, irrevocable, worldwide, non-exclusive, transferable, and sublicensable right and licence to commercially exploit any feedback, suggestions, or recommendations that you furnish to us in any manner.
3.9 Occasionally, we may provide free trials for one or more of the Services outlined in this Agreement ("Free Trials"). A Free Trial grants you the opportunity to utilise such Services without charge for the duration specified in the Free Trial offer for the chosen Service (the "Trial Period"). Upon registration for a Free Trial for any designated Service, the Trial Period commences on the registration date. Regardless of your usage of the selected Service, the Trial Period will conclude at the end of the specified duration.
Should you opt to cancel your selected Service within the Trial Period, all rights pertaining to your account and our Services will cease, resulting in the loss of access to both our Services and any associated design files once the Trial Period expires. Failure to cancel your selected Service before the Trial Period ends will automatically transition your account and selected Service to a standard paid subscription, as per the fees and terms specified during Free Trial registration and outlined in this Agreement. This transition will occur seamlessly at the Trial Period's conclusion without any additional action required from you, unless you've previously cancelled your account.
By continuing with the selected Service beyond the Trial Period, you authorise us to charge your chosen payment method (e.g., credit card) for the standard paid subscription fees and applicable taxes based on your selected billing frequency (e.g., monthly, quarterly, annually), unless you've cancelled your selected Service prior to the Trial Period's expiration. To participate in a Free Trial, you must have a valid payment method linked to your account. Please note that the Free Trial may be terminated if your payment method is deleted, cancelled, transferred, or deemed invalid or insufficient by us. Additionally, you acknowledge and agree that we reserve the right to terminate or modify Free Trials, alter or discontinue selected Services, or introduce similar services or offers, at our sole discretion and at any time.
use of the services
4.1 You are permitted to utilise the Services for any projects and scope covered by the plan you've subscribed to, as deemed appropriate for the size of your account. While we welcome an unlimited number of requests for Deliverables and revisions, the volume of output we can provide is influenced by various factors, including the overall request volume and complexity. Although we strive to collaborate with you to address priority items and meet your timelines, we advise against using our Services for extremely time-sensitive projects.
4.2 While we strive to minimise errors in the final Deliverables, it's important to acknowledge that, due to the nature of creative design, we cannot guarantee they will be entirely error-free. Upon receiving a file, you agree to thoroughly review and proof all content for any errors or omissions, and to promptly notify us within seven (7) days of receipt if any changes or corrections are necessary. We will make every effort to expedite edits to rectify any mistakes identified during this timeframe. However, should you notify us of errors after this specified period, we are not obligated to do so but will endeavour to collaborate with you to address any necessary corrections.
4.3 The velocity of your account is determined by the number of subscriptions you hold. Each subscription reflects our team's output capacity, considering our resources, software, and web platform, within a standard business day. The output achievable with a single subscription is influenced by various factors, such as the plan type, request volume, and request complexity. We do not assure a specific volume of work achievable with a single subscription. To enhance the volume of work we can undertake within a business day, we recommend adding subscriptions to your account.
4.4 You retain ownership and control over all information, data, or materials you furnish to us for the purpose of utilising the Services ("Customer Content"). By submitting Customer Content, you assert ownership of such material and/or confirm that you possess the requisite rights, licences, and authorization for its distribution. You grant us a worldwide, royalty-free, non-exclusive licence to access and utilise Customer Content for the provision of the Services.
4.5 You retain full ownership of all rights, titles, and interests in the Deliverables, including any associated intellectual property rights. For Deliverables that qualify as "work made for hire," they are considered as such for you. For those that do not, we assign you all rights worldwide, including intellectual property rights. However, these terms are contingent upon your compliance with this Agreement, payment of applicable fees, and adherence to Sections 4.7 and 5.
You grant us a limited, non-exclusive, non-sublicensable, royalty-free worldwide licence to utilise, host, reproduce, and distribute any Deliverables developed in connection with the Services, solely for service provision and account management. Additionally, we may employ Deliverables and related information for internal improvement purposes and, in aggregated form, for marketing and advertising endeavours.
4.6 ThreeOhFive firmly opposes and will not tolerate the use of its Service for discriminatory purposes, particularly based on race, religion, sex, sexual orientation, age, disability, ancestry, or national origin. Usage of the Service in a manner that may incite, promote, or support such discrimination, or that may incite or promote hostility or violence, is strictly prohibited. In our sole discretion, if we determine that your use of the Service involves discrimination, especially on the aforementioned grounds, we reserve the right to permanently or temporarily suspend or terminate your access to the Service without prior notice or liability for any reason.
4.7 ThreeOhFive operates exclusively from Monday to Friday, between the hours of 9:00 and 17:00 (SAST / UTC+2). Our services are unavailable on weekends (Saturdays and Sundays), as well as South African public holidays.
4.8 ThreeOhFive retains the authority to suspend your project and/or subscription plan if your dedicated designer or the team assigned to your project becomes incapacitated due to illness or any force majeure events. ThreeOhFive will always do its best to communicate this to the client in a timely manner (prior to the designer / team being unavailable), to the best of its ability.
5. use of licensed content
5.1 Conditional upon compliance with this Agreement and the complete payment of applicable fees, we provide you with a revocable, non-exclusive, non-transferable, royalty-free, worldwide licence to utilise the Licensed Content for your personal or professional use, solely as incorporated into a Deliverable. Unless explicitly specified in the licence terms accompanying the Licensed Content, it is designated and licensed solely for a single use within a Deliverable. You are permitted to broadcast, display, distribute, or reproduce the Deliverable containing the single-use Licensed Content, but solely as part of that Deliverable. Should you desire to use the Licensed Content for another project, end product, or different purpose, you must acquire another licence. Under no circumstances are you allowed to utilise the Licensed Content on a standalone basis. Except as expressly authorised by us, you agree not to directly or indirectly engage in stockpiling, selling, leasing, sublicensing, distributing, copying, reproducing, republishing, reverse engineering, downloading, data mining, or modifying any Licensed Content provided to you.
5.2 In the event that we licence the Licensed Content from any third party, such as Adobe Stock or Envato, you agree to abide by the relevant third-party licence terms, including but not limited to the Adobe Stock General Terms and Product Specific Licensing Terms found at https://www.adobe.com/legal/terms/enterprise-licensing.html, and the Envato Elements License terms available at https://elements.envato.com/license-terms. It's important to note that these licence terms are separate from and supplementary to (and do not override or replace) ThreeOhFive’s Terms of Service, which remain fully applicable.
Without our express written consent, you may not: (i) sell, resell, rent, lease, sublicense, assign, grant a security interest in, or otherwise transfer any portion of your rights to use Licensed Content outside of the Deliverable in which it is integrated; (ii) modify, alter, adapt, translate, convert, or create derivative works of any Licensed Content; (iii) falsely claim to be the original creator of any Licensed Content; (iv) utilise Licensed Content in a pornographic, defamatory, or otherwise unlawful manner; (v) employ Licensed Content in a manner that permits others to download, extract, or redistribute the Licensed Content as a standalone file or work; and (vi) utilise Licensed Content featuring models or property in connection with subjects that could be deemed unflattering or unduly controversial to a reasonable person (for instance, sexually transmitted diseases), unless clearly indicating: (1) that the content is used for illustrative purposes only, and (2) any individuals depicted in the content are models.
.
5.3 Ownership of the Licensed Content, whether obtained through our stock services or integrated into your Deliverable, remains with our licensors and us. We reserve the authority to terminate, revoke, or withdraw all licences in the event of your non-compliance with any provisions of this Agreement. Upon termination, you will no longer be entitled to utilise the Licensed Content, including any content integrated into your Deliverable.
6. fees
6.1 Accessing our Services necessitates payment of recurring fees. Prior to our obligation to provide Services, you are required to settle the fees (along with applicable taxes) in full, as specified during registration, and as updated by you prospectively (not retroactively) from time to time. Payment of all fees is expected upon receipt of invoice. In the event that Three Oh Five fails to provide an invoice, you remain obligated to fulfil the fees as per the terms specified during registration.
Upon registering for the Services, you grant us authorization to charge your chosen method of payment (e.g., credit card) for the fees and applicable taxes from the date of registration, based on your selected billing frequency (e.g., monthly, quarterly, annually). Overdue charges will accumulate interest monthly at a rate of 1.5% of the outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. We retain the right to suspend or terminate your account should you fail to pay amounts owed to us on time. All amounts owed under this Agreement are non-cancelable and non-refundable, except as specifically provided in this Section 6.
6.2 We maintain the right to modify our fees with a 5-day advance notice. By continuing to utilise the Services, you acknowledge and accept such changes. We are not obligated to inform you of temporary promotions or reductions in fees.
6.3 You have the option to terminate your subscription with us at any time by reaching out to us via email. Should you cancel your subscription prior to the next renewal cycle, you retain access to your account and design files until the conclusion of your paid billing term. However, upon expiration of your subscription, access to our Services and all associated design files will cease. Please note that we do not offer refunds or credits for partial months of service, downgrades, or unused time.
6.4 For all one-time projects, a 25% deposit is required to commence the project, unless otherwise agreed upon in writing by ThreeOhFive. The remaining balance will be divided into monthly payments spanning either 3 or 6 months. If you opt to cancel a one-time project after initiation, please be aware that the deposit is non-refundable. Any work completed beyond what is covered by the deposit must be compensated for in order to proceed with project cancellation. Upon successful cancellation, all completed work will be handed over to the client. It's important to note that we maintain the right to refuse refund requests at all times.
confidential information
7.1 In the context of this Agreement, "Confidential Information" refers to any non-public or proprietary data, encompassing details concerning present or prospective business endeavours, products and services, research findings, imagery, developmental insights, design specifics, and marketing strategies.
7.2 Throughout our engagement, you may share your Confidential Information with us. We commit to maintaining strict confidentiality and refrain from disclosing any of your Confidential Information to any third party, unless expressly authorised or directed in writing by you. Furthermore, we pledge to utilise your Confidential Information solely for the purpose of providing Services and not for any other objective. Access to your Confidential Information will be restricted to only those employees, officers, directors, contractors, representatives, and agents directly involved in delivering Services to you. We accept responsibility for any violation of this provision by our employees, officers, directors, contractors, representatives, or agents.
7.3 Throughout our collaboration, we may share our Confidential Information with you. You are obliged to maintain strict confidentiality and refrain from disclosing any of our Confidential Information to any third party, unless expressly approved or directed in writing by us. Additionally, you are expected to utilise our Confidential Information solely in accordance with the terms outlined in this Agreement and for no other purpose. Access to our Confidential Information should be limited to only those employees, officers, directors, contractors, representatives, and agents who require such information for the performance of their duties. You will be held accountable for any breach of this provision by your employees, officers, directors, contractors, representatives, or agents.
7.4 Despite any conflicting provisions in this Agreement, the following shall not be considered Confidential Information: (a) information that was publicly available at the time of disclosure or subsequently entered the public domain without violating this Agreement; (b) information that was lawfully possessed by a party prior to disclosure; (c) information independently developed by a party without violating this Agreement; or (d) information obtained by a party, without restriction, from a third-party source not connected to any breach of this Agreement.
7.5 The confidentiality obligations under this Agreement will survive for five (5) years after the termination of this Agreement.
publicity
8.1 Unless otherwise specified by you in written notice or reasonable restrictions or requirements, you consent to our disclosure of your status as a customer and the use of your name(s) and logo(s) in the following instances: (a) our digital, online, and printed marketing materials, including on our websites; and (b) external-facing presentations, including those made to individual clients and prospects.
term & termination
9.1 This Agreement will expire and terminate upon the expiration or termination of your account or subscription to a Service or once-off project; provided that all sections of this Agreement which by their nature should survive termination will survive termination, including but not limited to, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9.2 We reserve the right to terminate this Agreement at any time with notice if you default or breach any provisions herein. Upon the expiration or termination of your account or subscription to a Service, all rights associated with that Service under this Agreement will promptly cease, resulting in the loss of access to the relevant Service, including your account and Customer Content or other files. In the event of termination due to your breach, any licences to Licensed Content will also terminate.
disclaimer of warranties
10.1 Apart from the provisions specifically outlined in this Section 9.1, the Site and the Services (comprising Deliverables, Licensed Content, and AI Generated Content) are offered on an "as is, as available" basis. We provide no assurances regarding our Services, and, to the extent permitted by law, we disclaim all warranties, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, non-infringement of intellectual property, and other violations of rights, whether oral or written, whether arising by law, course of dealing, course of performance, usage, trade, or otherwise.
11. liability waiver
11.1 We shall not be held liable for any lost profits, revenues, data, financial losses, or indirect, special, consequential, exemplary, or punitive damages resulting from the use or inability to use this Site. To the extent permitted by law, our total liability for any claims under these Terms, including any implied or expressed warranties, shall not exceed nine hundred and fifty rand (R950.00), regardless of the cause of action, whether in tort, contract, or otherwise. This provision does not affect any liability that cannot be excluded or limited under applicable law.
indemnification
12.1 You agree to defend, indemnify, and hold us harmless from and against any claims, liabilities, damages, losses, and expenses, including reasonable attorney’s fees and costs, arising out of or in any way connected to Customer Content or the use of the Services, including any Deliverables, Licensed Content, or AI Generated Content, and specifically but not limited to violation of any third-party licence terms. You shall cooperate as necessary in our defence against any such claims. We reserve the right to assume exclusive defence and control of any matter subject to indemnification by you, and you shall not settle any claim without our prior written consent.
13, links to third-party platforms
13.1 In the event that this Site is accessible via any third-party platform, or if we furnish links from this Site to any third-party platform, we disclaim responsibility for any content or practices of such third parties.
copyright act
14.1 We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this Site infringe your copyright, you may request removal of those materials from this Site by submitting written notification to our agent designated below.
14.2 In accordance with the Copyright Act of South Africa (“CA”), the written notice (the ”CA Notice”) must include substantially the following: (1) your physical or electronic signature; (2) identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on this Site, a representative list of such works; (3) identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material; (4) adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address); (5) a statement that you have a good faith belief that use of the copyrighted material is not authorised by the copyright owner, its agent, or the law; (6) a statement that the information in the written notice is accurate; and (7) a statement, under penalty of perjury, that you are authorised to act on behalf of the copyright owner.
14.3 Our designated agent to receive CA Notices is:
Bryan Biggs
Sales Director & Head of Operations
bryan@threeohfive.agency
15. disputes resolution & choice of forum
15.1 This Agreement shall be governed by and construed in accordance with the laws of South Africa, disregarding any choice of law, conflicts of law, or other principles that might lead to the application of laws or regulations from any other jurisdiction. Any legal action, claim, or proceeding arising from or related to this Agreement shall be initiated in a South African court. Both parties consent to the exclusive jurisdiction of these courts and acknowledge that the venue is appropriate for any such legal action or proceeding.
15.2 In the event that no court in South Africa is deemed to have jurisdiction, the parties shall resolve any disputes arising from or related to this Agreement through binding arbitration under the administration of the International Chamber of Commerce South African arbitration, in accordance with its International Arbitration Rules. All proceedings of the arbitration, as well as any rulings, decisions, or awards by the arbitrator, shall be held strictly confidential for the mutual benefit of all parties involved.
15.3 The parties mutually consent that any claims brought against each other shall be pursued solely on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding.
15.4 The parties acknowledge that any cause of action or claim arising from or related to these Terms of Use must be initiated within one (1) year after the cause of action accrues; otherwise, such cause of action or claim shall be permanently barred.
assignment
16.1 This Agreement and the rights and obligations contained herein are personal to you, and you may not assign or transfer this Agreement or any of your rights or obligations herein without our prior written consent. We retain the freedom to assign this Agreement, including, but not limited to, in association with a merger, acquisition, bankruptcy, reorganisation, or sale of some or all of our assets or stock.
severability
17.1 Should any provision of this Agreement be deemed invalid, illegal, or unenforceable by a court of competent jurisdiction, such determination shall not affect the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect. In such a case, the invalid, illegal, or unenforceable provision(s) will be replaced by valid, legal, and enforceable provision(s) that best reflect the intentions of the parties underlying the invalid, illegal, or unenforceable provision(s).
non-waiver
18.1 The failure of either party to enforce any right provided herein shall not be considered a waiver of any further rights under this Agreement. Any waiver by either party of any term or condition of this Agreement or any breach thereof, whether in one instance or multiple instances, shall not constitute a waiver of such term or condition or any subsequent breach thereof.
force majeure
19.1 If we find ourselves unable to fulfill any obligation under this Agreement due to circumstances beyond our reasonable control, including but not limited to a pandemic or widespread outbreak of infectious diseases, government shutdown, lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial or labor disputes (whether or not involving our employees), acts of government, loss of or issues with telecommunications, utility services, or other third-party services, and hostile network attacks (each, a “Force Majeure Event”), we shall not be held liable to you for such inability to perform. However, we will promptly resume performance once the circumstances constituting the Force Majeure Event have been resolved.
entire agreement