These Terms and Conditions serve as the Terms and Conditions to all DM Group services and products unless stated otherwise. These Terms and Conditions form the basis of all Agreements between DM Group and the Client, and are incorporated into all DM Group products, packages, services and quotations, unless specifically excluded.
Definitions & Interpretation
- “Agreement” shall mean the Quotation as defined below, and as read with these Terms and Conditions into which shall be incorporated all instructions (excluding cancellations) received from the Client, and these Terms and Conditions governing the relationship between the Company and the Client.
- “Checklists” shall mean the individual sections which form part of the Project Management System as herein defined completion of which is required in order to supply relevant Project information to the Company.
- “Component” shall mean any individual service or product or discrete unit of website functionality or combination of the aforegoing of which Packages may be comprised.
- “Effective Date” shall mean the date of acceptance of the Quotation.
- “Fees” and “Additional Fees” shall refer to the costs set out in the schedule of fees listed in, or attached to, the Quotation, or available from the Company on request.
- "Forge” shall mean the current development platform utilised by the Company as the basis of websites and shall include, but not be limited to, development platforms used by the Company in the past, or which may be used in the future.
- “Initial Period” shall mean the payment period specified in the Quotation.
- “Marketing Consultation Summary” or “MCS” shall mean the initial phase of the Project Process, including the website drawings, and the navigation and content summary.
- “Package” shall mean the collection of products and / or services and / or units of website functionality as defined in the Quotation, comprising of a number of individual Components.
- “Parties” shall mean both the Company, and the Client.
- “Project” shall mean the entirety of the work undertaken on behalf of the Client.
- “Project Process” shall mean the entire procedure involved in the completion of the Project, as laid out in the Project Management System, and including the supply of the relevant information, approval of the various stages, and settlement of all amounts due, owing and payable to the Company.
- “Project Management System” shall mean the online system provided by the Company, to the Client, by means of which the Company shall gather the required information from the Client, and through which the progress of the Project shall be recorded and monitored.
- “Shell Design” shall mean the non-functional visual design or look and feel of a commissioned website supplied in graphic format in order to provide a representation of the final appearance of said website.
- “Services” shall mean any non-material services or actions carried out by the Company on behalf of the Client at any time.
- “Systems” shall mean any software, hardware, development platforms, functionality or websites as used by the Company from time to time.
- “Traffic” shall mean the movement of data between the server of the Company and the end-user, measured in megabytes.
- “The Client” shall mean the signatory of the Quotation as defined in this document.
- “The Company” shall mean DM Group CC.
- “Quotation” shall mean the document, provided by the Company to the Client, setting out the relevant Package and / or Components requested by the Client.
Commencement, Duration & Termination or Cancellation
- The Agreement shall commence upon the Effective Date as defined herein.
- The Initial Period of the Agreement where applicable shall be in accordance with the payment option selected by the Client, as indicated in the Quotation.
- The Agreement shall have no maximum duration, but shall persist subsequent to the expiry of the Initial Period unless cancelled as provided for in these Terms and Conditions.
- Either party shall be entitled to terminate the Agreement, or any service contained in the Agreement, upon written submission of one (1) calendar month’s prior written notice, subsequent to the expiration of the Initial Period as set out in the Quotation if applicable.
- Such written notice of cancellation or termination as described in 2.4 above shall be provided on an official letterhead, above the signature of the original signatory of the Quotation, or in the event that such person is no longer associated with the Client, a duly authorised representative of said Client.
- Facsimile or electronic copies of such notification will be accepted only in conjunction with the original notice hand delivered to the offices of the Company or sent by pre-paid registered post to the domicilium citandi et executandi of the Company as set out in these Terms & Conditions.
- In the event of the termination of this Agreement, for any reason whatsoever, any amount due to the Company shall become due, owing and payable immediately.
- No Notice of Cancellation can be accepted unless the account is fully up to date.
- In the event that the Client has requested a payment option as specified in the Quotation, Forge costs for the duration of the Package will remain due where applicable, and shall be included in the outstanding total amount upon cancellation, should such cancellation occur prior to the completion of the Initial Period of the specified Package.
- The Client accepts that the Company shall treat instructions and requests, (excluding cancellation instructions which must be submitted as set out in paragraph 2.4 above) submitted via electronic mail as official requests or instructions which shall be incorporated into the Quotation and Agreement governed by these Terms & Conditions without the necessity of separate signatures to include such instructions within the Quotation.
- The Client accepts that they shall not cede, or assign, any rights or obligations under this Agreement without the prior written consent of the Company.
- The Parties agree that the acceptance of the quotation through the quotation software application used by the Company shall constitute a binding electronic signature signifying the acceptance of the quotation by the Client.
Fees, Invoicing & Payments
- All debit orders will be effected in the last week of every month.
- All amounts due to the Company shall be payable within seven (7) days of the date of invoice.
- All Google spend amounts will be pre-paid directly to Google in advance each month by the Company on behalf of the Client.
- All deposits, payments and associated fees paid to the Company by the Client will be considered non-refundable.
- All accounts in arrears of thirty (30) days or more shall incur interest charges at the rate of prime plus two (2) percent based on the lending rate of the Standard Bank of South Africa.
- Failure by the Client to pay any owing amount which has been outstanding for thirty (30) days or more will result in all aggregate charges specified in the Quotation as well as any other amount owed to the Company becoming due, owing and payable immediately.
- The Company shall reserve the right in its sole discretion to suspend the accounts, domains or services of any Client whose account falls into arrears exceeding fourteen (14) days.
- The Client accepts that all invoices sent by the Company shall be deemed to have been received by the Client on the day after the invoice has been transmitted electronically by the Company.
- Not withstanding the terms of paragraph 3.8 above, the Client accepts that they shall not be entitled to invoke the defense that the monthly fees payable for services in terms of the Quotation or Agreement have not been paid due to late or non-receipt of monthly invoices and/or statements. The Client shall remain liable for the payment of any amounts due to the Company irrespective of whether the Client has received an invoice and / or statement or not.
- Any account suspended by the Company shall be subject to a reconnection fee of R350(+VAT).
- In the event that the Client has multiple domains and / or services with the Company, such suspension referred to in 3.6 above may be applied to all Client domains and / or services at the discretion of the Company.
- The Company reserves the right to withhold the release of Client domains until such time as all outstanding amounts have been settled.
- Package costs before the inclusion of additional Components are fixed amounts. No discounts apply in regard to electing to remove Components from any Package.
- Domains shall be renewed automatically in the absence of instructions to the contrary by the Client.
- Where applicable, the Client shall be invoiced for the monthly Forge fee thirty (30) days after the date of the initial invoice.
- In the case of an existing Client upgrading to Forge, the relevant monthly fee shall be payable immediately.
- No discount shall apply in the event that the Client has utilised less than the allotted amount of Traffic. An additional cost of R0.42 per additional Mb of Traffic over the allotted amount shall apply.
- In the event that payment by the Client is stopped, or returned unpaid, the Company shall be entitled to charge a processing fee of R150.00 per failed payment, in addition to amounts outstanding, a reconnection fee as described in paragraph 3.9 above if applicable, and any legal cost incurred in recovering outstanding payments on the attorney and client scale.
- In the event that a Client, for whatever reason, makes an incorrect payment which requires reversal, the Client shall be subject to a banking and administration fee of R120 in order to effect the reversal of such incorrect payment.
- Failure to complete any Project within six (6) months due to failure on behalf of the Client to provide the necessary co-operation, support, information or approval to the Company will result, at the sole discretion of the Company, in the lapse of the Project and terms of the Agreement at which point all outstanding amounts shall become due, owing and payable immediately.
- The Company reserves the right to increase or decrease the costs of the products, packages or services offered by the Company at any time, in its sole discretion, on provision of reasonable notice of such change to the Client. In addition, the Company reserves the right in its sole discretion to increase charges annually, while endeavouring to remain within CPIXguidelines.
- The Client accepts that, on the commencement of the Project Process, but subsequent to the completion of the Marketing Consultation Summary phase as allowed for in paragraph 3.23 below, the balance of payment as set out in the Quotation will become due, owing and payable. In the event of the termination of the Agreement by the Client subsequent to the completion of the MCS, the entire quotation amount will become due, owing and payable immediately.
- In the event that cancellation occurs during the Marketing Consultation Summary phase, and prior to acceptance of said phase, the Client agrees that they shall forfeit the deposit as set out in paragraph 3.4 of these Terms and Conditions. In the event that the value of the time and services provided up to the date of cancellation, if such cancellation occurs prior to the completion of the Marketing Consultation Summary phase, exceeds the value of the aforementioned deposit, the Client accepts liability for any difference between the deposit and the value of the time and / or services provided up to that point.
- The Client further agrees that in the event that any amounts are owing to the Company by the Client and the Company remains in possession of any property of the Client, including but not limited to domains, website content and design elements, the Company shall have a bona fide lien over such property, and shall have the right to retain such property until all outstanding amounts have been paid to the Company.
- The Client accepts that, once final approval has been signed indicating acceptance of the website, final payment shall be made within seven (7) days from the date of final approval. Failure to make final payment within seven (7) days from the date of final approval shall result in the full suspension of the website and all functionality. Forge charges if applicable shall apply as normal during the period of suspension. In the event that final payment has not been received within fifteen (15) days of the date of final approval, the Company may institute legal proceedings in order to recover outstanding costs in accordance with these Terms & Conditions.
- The Company reserves the right to track the bank account of the Client in order to recover any outstanding amount by resubmitting an unpaid debit order when such amount becomes available.
- In the event of any default by the Client of any provision of this Agreement, the Client hereby consents and authorizes the Company to furnish the name, credit record and repayment history of the Client to any credit bureau as a delinquent debtor. It is also agreed that the Company may use any means to verify the information contained in or required by this document.
- The Client accepts that the contents of invoices shall be deemed as correct and accepted by the Client unless a query is submitted in writing to the Company within 30 days of the date of invoice.
Project Management System & Checklists
- To facilitate the completion of Projects on behalf of the Client, the Company has developed an online Project Management System for the use of Clients.
- The Client hereby acknowledges that they are required to supply the relevant documentation and information as required through the Project Management System.
- The Client hereby agrees that the required information will be supplied in the format and method set out in the Project Management System.
- The Client hereby agrees that it shall be the responsibility of the Client to supply the necessary information as referred to in paragraph 4.3 above in as timeous a manner as possible in order to facilitate the completion of their Project.
- The Client hereby agrees that Project related queries will be submitted through the functionality supplied within the Project Management System.
- The Client acknowledges that the Company shall not be held responsible for any delays caused by failure on the part of the Client to submit Project related queries or information in the manner specified in the above paragraph 4.5.
- The Client hereby acknowledges that approval submitted through the Project Management System shall constitute binding approval for the relevant stages which require such approval. This approval shall not negate the requirement for written approval in certain instances as set out in paragraph 7.2 of these Terms & Conditions.
- The Client hereby accepts that all design elements remain the property of the Company until such time as the Company has received final settlement of the Client account.
- All website Projects include three (3) Shell Designs to determine the look and feel of the website. As stated in section 1 of these Terms & Conditions, the Shell Designs comprise of non-functional graphic representations of the look and feel of the website.
- Additional Shell Designs, or changes to the Shell Design subsequent to the relevant Shell Approval, shall be charged for at the standard hourly design rate.
- Logo design, if applicable, shall include the design of three (3) logo variations and three (3) modifications to such logo design. Additional designs, or changes subsequent to signed approval of the logo design, will incur charges at standard design rates per hour.
- The Client accepts that should the Company carry out logo design for the Client as set out in paragraph 5.4 above, the designed logo shall remain the property of the Company until such time as full and final settlement of all outstanding amounts owing to the Company has been made.
- Collection of artwork or content from the Client or any 3rd party supplier shall be at the expense of the Client, and will be billed without markup at the rate invoiced by the courier of the Company.
- The Company shall undertake the purchase of any images required for the design of the Clients website, at the expense of the Client. Such images shall be purchased only where necessary for the website. Should the Client wish to utilise alternative or larger images for any other purpose, such images shall be purchased by the Client on their own account.
- The Client hereby warrants that all images and content supplied by the Client to the Company for any purpose are the property of the Client, and that the relevant copyrights are vested in the Client. The Company does not accept responsibility for the violation of copyright or intellectual property laws arising from images or content supplied by the Client.
- The Client hereby acknowledges that all content, graphic and design elements included in the site shall be the property of the Company until such time that the Company has received payment in full for services rendered.
- The Client hereby acknowledges that in the event of cancellation or termination of the Agreement, it shall be the responsibility of the Client to ensure that all data, including images and content, is exported, retrieved, copied or saved prior to the removal of the site from the Company servers.
- The Client accepts that website maintenance shall be charged according to hourly rates, and that design maintenance or changes shall be charged in half-hour increments.
- The Client accepts that website maintenance shall exclude substantive changes to the design, and shall be limited to minor alterations which do not require in excess of two (2) hours to effect.
- The Client accepts that one (1) design page shall consist of a maximum of five hundred (500) words and five (5) images.
- For the purposes of these Terms & Conditions, website development shall include all aspects of any Client website that forms part of the Forge, Bamboo or ePower development platforms, or which has been created through the use of Perl or Ruby on Rails or any other development method or platform the Company may use from time to time.
- The Client acknowledges that all development aspects of the site, including the website code, and the administration console supplied by the Company, but excepting any HTML or CSSelements, remains the property of the Company under all circumstances.
- The Company acknowledges that images, content, Client data and design elements do not form part of the development of the site.
- The Client hereby acknowledges that all data and records, including the website itself and the www records for the Client site shall be hosted on the servers of the Company.
- Once final approval for the website has been signed, and the site has been taken live, the Client shall have a period of five (5) days to recheck the functioning of the website, and submit any bugs and / or material errors to the Company for rectification at no additional cost.
- The Client hereby acknowledges that any changes or corrections, required due to either bugs or material errors, after the expiry of the five (5) day period referred to in paragraph 6.5 above shall be at the expense of the Client. The Company shall reserve the right, in its sole discretion, to reduce such charges should the Company deem such adjustment appropriate.
- The Client further acknowledges that the rectification of such bugs and / or errors shall be limited to errors or bugs in approved development functions, and may not constitute alterations to website functionality and / or strategy and / or design.
- The Client accepts that development maintenance shall be charged according to hourly rates, and that development maintenance or changes shall be charged in one (1) hour increments.
- For the purposes of this Agreement, the Client accepts that development maintenance shall exclude substantive changes to the development or functionality of a website, and shall be limited to minor alterations which do not require in excess of two (2) hours to effect.
- All website development and coding shall be standards compliant as per the accepted XHTML and CSS standards for web at the time of development. Due to the ongoing evolution of browsers and technology, the Company cannot be held responsible for sites that no longer function correctly due to such technological changes. The Company will undertake changes to update compliance if it becomes necessary, however these changes will be for the Clients account, and quoted seperately.
- The Company hereby warrants that all sites will be compliant with versions of Internet Explorer and Firefox current at the time of the acceptance of the Quote. The Client accepts that Firefox shall comprise the default development compatibility benchmark, however the Company warrants compatibility with current versions of contemporary browsers at the time of development.
- The Client acknowledges that the Company cannot guarantee, and shall not be required to develop in, compatibility or compliance with outdated or unsupported browser technology which no longer meets international compliance standards.
- The Client hereby accepts that, unless previously agreed in writing, websites designed by the Company will not be compatible with mobile standards. Should such compatibility be required, the Client hereby agrees that such development shall constitute specialised custom development and will require a separate Quotation.
- The Client hereby accepts that waiting period prior to entering the development queue at the Forge integration phase of a Project may be between two (2) and six (6) weeks depending on the number of projects in the queue at the time that the Client Project becomes ready to enter the development phase.
- The Client accepts that the Company cannot be held liable for the loss of transactions, payments or sales caused by the incorrect functioning of a payment gateway integrated into the Client website.
- The Client accepts that the Company cannot take responsibility for any losses incurred by the use of any software created for the Client. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the Client in ensuring that all software is functioning correctly before use.
- The Client further accepts that the Company cannot be held responsible for the non-availability of 3rd party software and functionality, or external sites to which the Client site may link.
- The Company reserves the right to claim costs against the misuse of the intellectual property of the Company, in the event that the Client, or any 3rd party acting on behalf of the Client, copies and uses the code and / or development infrastructure of a website developed by the Company on any other server or website.
- The Client hereby accepts that approval for any of the various stages contained in the Project Management System which is submitted via email through said system shall constitute binding acceptance of the relevant stage of the Project process.
- Not withstanding the aforegoing, the Client likewise acknowledges that certain sections of the Project process will require separate, signed approval, before the commencement of the subsequent stage, and agrees to provide such approval where necessary.
- The Client hereby acknowledges that changes made to any completed stage of the Project subsequent to the receipt of signed approval by the Company for that stage will incur costs for the Clients account.
- The Client further acknowledges that such charges as referred to in paragraph 7.3 above shall be billed automatically, except in the event that such changes require more than 4 hours of billable time per stage. In such an event, the Client shall be quoted seperately by the Company for the required changes.
- Development platforms shall include, but not be limited to, inter alia Forge, Bamboo, ePower and any other development platform designed or utilised by the Company in the past, at present, or at any time in the future.
- Development platforms shall be considered a product of DM Group, and as such, are wholly owned by the Company.
- All use of such proprietary development platforms is at the sole discretion of the Company, and is subject to a standard monthly charge where applicable, as set out in paragraph 3.14 of these Terms and Conditions.
- The Company hereby warrants that the Forge platform, where applicable, shall be maintained and kept up to date by the Company, free of charge, with the exception of cases in which the Client has made use of custom development which lies outside the standard Components as specified in the relevant documentation of the Company.
- In the event of custom development as referred to in paragraph 8.4 above, Forge updates may negatively affect the functionality of the site. As a result, custom sites will not automatically be updated.
- Such Forge updates shall be confined to the version of Forge current at the time of development, and shall include compatibility with additional components as such components become available. The Company however reserves the right at its sole discretion to discontinue support for outdated versions of the Forge platform, and the Client accepts that such updates do not include upgrades to new versions of Forge.
- In order for the Forge platform to function, the www records of all Client sites must be hosted on the DM Group servers, as stipulated in paragraph 6.4 of these Terms and Conditions.
- Initial training via telephone and by means of basic and advanced tutorials is included for the Forge platform. Additional training will be charged per hour, as required.
- The addition of Client specific data to the Forge platform, such as product data and images, shall be the responsibility of the Client, and is not included in any pricing structure.
- All marketing services shall be carried out to the best the Company’s ability and according to the full extent of its current knowledge. It shall be the responsibility of the Company to maintain and update this knowledge and apply it fully to any Project.
- The Client hereby accepts that the Company cannot guarantee the action or behaviour of 3rd party visitors or users of their website, nor the currency or accuracy of its best practices due to the constantly evolving nature of the online environment.
- In terms of the above, the Client accepts that the Company cannot guarantee conversions, sales, website Traffic or any outcome, including but not limited to the aforegoing, which depends on the independent actions of 3rd parties.
- The Company does not grant the Client access to any third party software, including but not limited to Analytics, AdWords, Webmaster Tools, or any other outsourced online applications in relation to the Clients site.
- AdWords accounts shall remain the property of DM Group.
- The Company shall endeavour to send regular reports to the Client, based on the nature of the services purchased by the Client. Such reports will be supplied to the Client by means of electronic mail.
- It shall be the responsibility of the Client to inform the Company in the event that reports as described in paragraph 9.5 above are not received. The Client further accepts that such reports are not retained by the Company for any period longer than one (1) month.
- Except in the event that the Client has purchased an analysis service, such reports will not be analysed by the Company. The Company reserves the right however to view such Client statistics at any time, and make recommendations at its sole discretion, and as it finds appropriate.
- The Client hereby acknowledges that the Company has no control over search engines, their algorithms, or their indexing and that, as such, the Company cannot be held responsible for the failure of the Client website to optimise.
- The Client hereby acknowledges that the Company cannot be responsible for fluctuations in the search engine ranking of the Client.
- The Client hereby acknowledges that the Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
- The Client accepts that the Company cannot guarantee the permanence of any submitted link due to circumstances beyond the control of the Company. Each link developed relies on the actions and agreement of 3rd parties, and the efficiency of search engine indexing, and as a result, the responsibility of the Company shall be considered discharged upon the submission and acceptance of the requisite number of links at any given time, rather than as a cumulative total.
- The Client hereby accepts that any cancellation or termination of link development services or Forge will result in the severance of all existing software, and reporting and tracking components will be automatically removed. As a result of the aforementioned, any reinstatement of such services will require that reporting be re-implemented, and subsequent reporting will be available only from the date of reinstatement.
- The Client accepts that the Company cannot guarantee first place rankings on Google AdWords, nor can the Company guarantee that the best possible bid is always paid or offered for any given keyword or website, or that each advertisement will always accurately represent the services of the Client other than to the extent of the knowledge of the Company.
- The Company shall endeavour to ensure that keyword research, wherever relevant, will be carried out to the best of its abilities and in line with its current knowledge and experience.
- The Company cannot be held responsible for any misunderstanding on the part of the Company, or incomplete information or misrepresentation on the part of the Client, which results in inaccurate keywords, or Traffic unrelated to the business of the Client.
- The Client hereby acknowledges that, in the event that the Client has an existing website, it will be necessary for the Client to add certain tracking code to the relevant pages of their site in order to measure performance.
- The Company will provide training in the insertion of such necessary code if necessary and applicable. Should such training require in excess of 2 hours, additional time will be billed at the standard rate per hour, automatically in the event that such time does not exceed an additional two (2) hours, or with notice to the Client, in the event that the additional time exceeds this.
- In order to accumulate the data contained in the Supply & Demand report, the Company makes use of a number of advanced 3rd-party software applications. The Company cannot guarantee the total accuracy of all data contained in this report, due to potential problems caused by latency, connections or active blocking.
- The Client acknowledges that the keywords analysed in the Supply & Demand Report have been supplied by the Client, and that due to the current nature of the data contained therein, not all keywords will necessarily show results for the period covered by the Report.
- The Client hereby acknowledges that in the event of the cancellation of marketing consultations, Project brief meetings, and keyword workshops, notice of such cancellation shall be given 48 hours in advance of the agreed upon date.
- Failure to provide sufficient notice of such cancellation shall render the Client liable for 50% of the total fee charged for such consultations.
- Requests for consultations outside of Johannesburg shall be quoted seperately.
- The Client warrants that the use or registration of their domain name does not interfere with nor infringe upon the rights of any third party in any jurisdiction with respect to trademark, service mark, trade name, company name, close corporation name, copyright nor any other intellectual property right, and that the Client has the right to use the domain name as requested.
- The Client accepts that the Company cannot act as an arbiter of disputes arising out of the registration and use of domain names.
- The Client accepts that, should the Company be presented with evidence that the Clients website violates the rights of a third party, the Company shall be allowed or required to provide any complainant with the Clients details, after which all all subsequent communications shall exclude the Company, who shall have have no further obligations in this regard to the Client or complainant.
- The Client acknowledges that the Company will not be liable for any loss or damage, interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, delict, or otherwise, which may be suffered as a result of, or which may be attributable, directly or indirectly, to the use of the services of the Company.
- The Client accordingly indemnifies the Company against any loss whatsoever arising from any dispute or claim occasioned by the Clients use and registration of its selected domain name, even if the Company has been advised of the possibility of such damages.
- The Client acknowledges that the Company will not be liable for any indirect or consequential loss, damage, cost or expense of any kind, irrespective of how such damage or loss was caused, whether arising under contract, delict or otherwise, including, but not limited to, data loss or corruption, loss of profits, contracts, operation time and goodwill.
- The Company will exercise no control whatsoever over the content of the material uploaded by the Client, or the information hosted on, or passing through, the Company servers. All content supplied or uploaded by the Client shall be the sole responsibility of the Client.
- The Company makes no warranties or representations of any kind, whether express or implied, as to the hosting service provided. The Company likewise disclaims any warranty of merchantability or fitness for any particular purpose, and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions or from any cause whatsoever, or errors or omissions on the part of the Client. Use of any information obtained through the Company is at the Clients own risk, and the Company specifically denies any responsibility for the accuracy or quality of information obtained through its services. Any reference to connection speed represents the speed of a connection to, and does not represent guarantees of available end to end bandwidth.
- The Client agrees that use of the Company service is at its sole risk. The Company is not responsible for files and/or data residing on the Client’s account.
- The Client agrees to take full responsibility for files and data transferred and to maintain appropriate backups of all files and data stored on the Company web servers.
- The Company expressly limits its damages to the Client for any non-accessibility or other down time to the mandatory monthly charge for hosting only, and excluding the remainder of the Forge fee if applicable, during the system unavailability.
- The Company specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
- The Client expressly agrees that use of The Company’s server(s) and services are at the sole risk of the Client. Neither the Company, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that the Company’s service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the Company service, unless otherwise expressly stated in this Agreement.
- The Client hereby accepts that all domains will be registered in the name of the Company. The Company hereby warrants that domain registration will be transferred to the name of the Client upon final settlement of the Client’s account, and receipt of a request by the Client to make such transfer.
- The various hosting packages offered by the Company differ in terms of the amount of website Traffic included in the Package. The Client hereby accepts that, in the event that the allocated amount of Traffic is exhausted, the Company will continue to allow the website to remain online, and that the Client will, in such cases, be invoiced for the amount of Traffic which exceeded the amount allowed for in the relevant Package at the rate set out in paragraph 3.16 of this agreement or as otherwise specified.
- The Client hereby accepts that charges for Traffic will be levied one (1) month in arrears.
- The Client hereby acknowledges that should the Client wish the transfer of an existing domain to a third party, the Client account must be up to date, and all outstanding fees settled before such transfer can take place.
Copyright & Intellectual Property
- The Client warrants that copyright for all supplied images and content vests in the Client, and the Client further assumes all responsibility for the use of such supplied material by the Company on the Clients behalf.
- The Client accepts that any scripts, cgi applications or software, development platforms, custom development, and all applications of Forge, Bamboo or ePower, unless specifically agreed in writing, written by the Company remain the property of the Company and may not be commercially reproduced or resold without the express written permission of the Company.
- The Client accepts that the Company logo, name, content and software remains at all times the property of the Company and may not be used, reproduced, copied or resold without the express written consent of the Company.
- The Client hereby warrants that all images and content supplied by the Client to the Company for the purposes of inclusion in the website are the property of the Client, and that the relevant copyrights are vested in the Client. The Company does not accept responsibility for the violation of copyright or intellectual property laws arising from images or content supplied by the Client.
- All trademarks, logo’s, copyrights, systems, methodologies, development platforms and development methods shall remain the property of the Company under all circumstances.
Terms & Conditions
- The Client accepts that the online version of the Terms and Conditions constitutes the only valid copy of the Terms and Conditions of the Company.
- Any changes to these online Terms and Conditions shall constitute changes to any printed copy or any copy contained in any format other than this online edition.
- The Company reserves the right to amend these Terms and Conditions at any time and at it’s sole discretion. The Company warrants that the Client shall receive 1 weeks notice of any such amendment by electronic mail should such amendment materially alter the terms of the Agreement with the Client.
- The Client accepts that their continued use of the services of the Company constitutes their binding acceptance of these Terms and Conditions, including any changes or modifications made by the Company as permitted in paragraph 12.3 above. If at any time these Terms and Conditions are no longer acceptable to the Client, the Client should immediately terminate their Agreement with the Company in writing with the understanding that the terms pertaining to the cancellation of the Agreement as specified in section 2 of these Terms & Conditions shall apply.
- The Client acknowledges that these Terms and Conditions form part of the Agreement as defined in these Terms and Conditions, and that signature of the aforementioned Quotation constitutes acceptance of these Terms and Conditions.
The Agreement shall be governed by South African law, and the Client hereby consents to the jurisdiction of the Magistrate’s Court. The Company may, at its sole discretion, institute proceedings out of the High Court where it deems appropriate.
This Agreement constitutes the entire Agreement between the Parties with regards to the matters dealt with therein and any representation, terms, conditions or warranties, expressed or implied, but not contained within the Agreement, shall not be binding on the Parties unless reduced to writing and signed by both Parties.
With regard to the aforegoing paragraph 14.1, neither Party shall make any guarantee or warranty not explicitly set out in these Terms and Conditions unless such guarantee or warranty is reduced to writing, and signed by both Parties.
Non Variation and Cancellation
No Agreement varying, adding to, deleting from or cancelling this Agreement, and no waiver whether specifically, implicitly or by conduct with any right to enforce any term of this Agreement shall be effective unless reduced to writing and signed by or on behalf of the Parties.
Both Parties hereby agree that any additional services quoted by the Company and subscribed to by the Client shall, upon signature of such Quotation, give rise to a new Agreement which shall be considered separate from existing Agreements, and equally enforceable in their own right.
No indulgence granted by a Party shall constitute a waiver of any of that Parties rights under this Agreement and accordingly that Party shall not be precluded, as a consequence of having granted such an indulgence, from exercising any rights against the other which may have arisen in the past or which may arise in the future.
The Client agrees to retain as confidential and not to disclose any information obtained as a result of the use of the Company Systems, including but not limited to knowledge of the Company Systems, any portion of the Systems, or knowledge of any business or other processes which may be utilised by the Company from time to time.
The Company remains the proprietary owner of all copyright, trade mark and other rights, wholly or in part, in and to the Company Systems and the Client shall not be permitted to sell, rent, duplicate, replicate or in any way alienate any such rights to the Company Systems to any third party.
In the event of the Client breaching any terms of these Agreements, and failing to remedy such breach within seven (7) days of being given notice to do so, the Company may, at its own discretion elect to either suspend all services under the Agreement until such time as the breach has been remedied, or to cancel the Agreement with immediate effect.
Indemnity and Liability
- The Client, by signing the Agreement, irrevocably indemnifies the Company and / or its directors and / or its employees and / or its agents against any claim of any nature howsoever arising. For clarification purposes, in any claim made by any third party against the Company arising out of this Agreement, it is agreed that the Company and / or its employees and / or directors will be indemnified by the Client and / or by the Client’s authorised representative.
- In respect of the aforegoing, the Company shall not be liable or become involved in any dispute between the site owner and their clients, and cannot be held responsible for any wrongdoing on the part of a Client.
- The Company shall not be liable for any costs incurred, or compensation or loss of earnings due to the work carried out on behalf of the Client or any of the Clients appointed agents.
- The Company shall not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by the Company or its agents.
- The Company shall not be held liable for the loss of transactions, payments or sales caused by the incorrect functioning of a payment gateway integrated into the Client website.
- The Client indemnifies the Company against any claim arising from whatsoever cause as a result of the use of the Company Systems.
In the event that the Company is forced to resort to legal recourse for the recovery of any outstanding amounts due to the Company by the Client, the Client shall accept full responsibility for all legal fees or related costs arising out of such recovery on the attorney and client scale.
If any term or provision or part thereof (in this clause to be known as “the offending provision”) contained in this Agreement should for any reason whatsoever be declared, or become, unenforceable, invalid, or illegal including by, but without prejudicing the generality of the aforegoing, a decision by any court, an act of parliament or any statutory or other by-laws or regulations or any other requirements having the force of law, the other terms and provisions of this Agreement shall remain in full force and effect as if this Agreement had been executed without the offending provision appearing therein.
Addresses and Notices
The Company may amend these terms and conditions by giving the Client one week’s notice of its intention to do so in the event that such amendment materially alters the Agreement entered into with the Client.
For the purpose of this Agreement, including the giving of notices in terms hereof and the serving of legal process, the Parties choose as their domicilium citandi et executandi (domicilium) the following:
- The Company: 101 1st Floor, Building 5, Tuscany Office Park, 6 Coombe Place, Rivonia, Gauteng South Africa.
- The Client: As set out in the Project Management System referred to in section 4 of these Terms & Conditions.
Either party may at any time change its domicilium by notice in writing, provided that the new domicilium is in the Republic of South Africa and consists of, or includes a, physical address at which notices may be served.
Any notice given in connection with this Agreement may be delivered by hand or be sent by pre-paid registered post; to the domicilium chosen by the Parties concerned. Any notice or process delivered on any Party in connection with any matter or subject arising out of this Agreement, shall be deemed to have been delivered if handed to a responsible person at the domicilium chosen by any Party, and it shall not be deemed necessary to hand such process or notice to any Party personally.
- Any notice not served as set out above shall be presumed to have been duly delivered;
- on the date of delivery if delivered by hand;
- on the fourth day from the date of posting, including the date of posting, if posted by pre-paid registered post from within the Republic of South Africa; and
- on the fourteenth day from the date of posting, including the date of posting, if posted from outside the Republic of South Africa.
The Client accepts that it is the responsibility of the Client to keep the Company updated with regards to any changes in the contact details of the Client, or of any member of staff deemed responsible for the Project.