The Customer agrees that this contract represents the entire agreement between the Customer and KeyMedia (hereinafter called the “Organization”) by both parties, reduced to writing and authorised by the Customer and a duly authorized representative of the Organization;
− That the agreement will govern all future contractual relationships between the parties;
− Is applicable to all existing debts between the parties and this contract is final and binding and is not subject to any suspensive or dissolutive conditions.
The Organization and the Customer hereby agree to the following definitions unless the contrary is clearly indicated:
− “Acceptance Tests” shall mean the tests conducted for the purposes of determining the compliance of the website with the Site Specifications;
− “Agreement” shall mean a written document together with all written appendices, annexures, exhibits or amendments attached to it from time to time;
− “Commencement Date” shall mean the date on which the agreement becomes effective;
− “Confidential Information” shall mean: any information of whatever nature which has been or may be obtained by either of the Parties from the other, whether in writing or in electronic form or pursuant to discussions between the Parties or which can be obtained by examination, testing, visual inspection or analysis, including without limitation, scientific, business or financial data, know-how, formulae, processes, designs, sketches, photographs, plans, drawings, specifications, sample reports, models, customer lists, price lists, studies, findings, computer software, inventions or ideas; analyses, concepts, compilations, studies and other material prepared by or in possession or control of the recipient which contain or otherwise reflect or are generated from any such information as is specified in this definition; any dispute between the Parties resulting from the agreement;
− “Copyright” shall mean all rights of Copyright whether existing now or in the future in and to the Software including initial drawings, sketches, flow charts and designs relating thereto;
− “Currency” shall mean South African Rand;
− “Delivery Date” shall mean the date on which the final version of the website must be delivered and installed at the Location;
− “Development Equipment” shall mean all equipment, including, but not limited to computer hardware, and computer software, office space and all general office equipment required by the Organization to develop the website;
− “Hardware” shall mean computer machinery and equipment;
− “Implementation Plan” shall mean the plan specifying how and when the website should be installed at the Location and be ready for operational use by the Customer, and once compiled by the Parties, shall be annexed to the Agreement and form an integral part thereof;
− “Intellectual Property Rights” shall mean all present and future rights in the website and other rights which may in the future be based thereon, including by not limited to Copyright;
− “Location” shall mean the address where the website will be used by the Customer;
− “Notice” shall mean a written document;
− “Operating System Software” shall mean third party software that controls basic, low-level computer hardware operations, and file management, without the user thereof having to operate it, as more fully described in the Technical Specifications and Functional Specifications;
− “Parties” shall mean both the Organization and the Customer;
− “Payment Date” shall mean the date on which funds are due;
− “Payment Office” shall mean the place where the funds are to be paid;
− “Project” shall mean the development, installation and training which pertains to the Software;
− “Retainer Fee” shall mean an amount of Rand per day;
− “Retainer Fee Dates” shall mean the date(s) on which the Retainer Fee must be paid by the Customer;
− “Schedule of Charges” shall mean all development, installation and set-up charges, including charges relating to rectification or correction of inadvertent programming errors or software bugs or program faults and defects, and modification charges;
− “Site Specifications” shall mean the written document, which gives detailed technical requirements of the website, a copy of which is attached hereto;
The Customer hereby acknowledges that he/she has read and understood each term of the agreement and accepts them as binding. The Customer warrants that any authorization for any product and or services in any form or media has been duly authorized to contract on the Customer’s behalf. The authorisation hereby binds himself/herself in his/her personal capacity as co-debtor in solidum for the full amount due to the Organization and agrees that these Standard Conditions will apply mutatis mutandis to him/her.
The Customer acknowledges that no representations were made by the Organization in regard to the products or services or any of its qualities leading up to this contract. The Customer agrees that neither the Organization nor any of its employees will be liable for any negligent or incorrect misrepresentations made to the Customer. It is the sole responsibility of the Customer to determine that the products or services ordered are suitable for the purpose of intended use.
All quotes will remain valid for a period of 7 days from the date of the quote. The Customer hereby confirms that the products and services on the Tax invoice duly issued represent the products and services ordered by the Customer and where performance and or delivery has already taken place that the services and products were inspected and tested and conform to the quality and quantity ordered. All orders or variations to order, whether oral or in writing, will be binding and subject to these standard conditions of agreement.
The process for the creation of visuals, such as graphics and page designs, consists of the Organization providing drafts and asking for feedback from the Customer. The feedback is then used for the production of a further draft. It is assumed that three drafts will suffice for each design element. Text content will be provided by the Customer as final drafts ready for publication and in digital form. Graphic content will be provided by the Customer in an orderly manner and clearly labelled as to the position to be used on the website.
Copyright to the web documentation produced by the Organization for the Customer, including page designs, their source code, and the unique assembly of these elements which constitutes a website, shall be retained by the Organization. The Organization agrees not to use these page designs, or significant recognizable portions thereof, as part of any other published work. Upon full payment of all invoices due, the Customer is fully licensed to use and freely reproduce these products for its own purposes; however, this license may not be re-sold or transferred to any third party. Secondary materials created by the Organization during production, including drafts, plans, graphic source files, and templates, remain the sole property of the Organization.
In the case of upgrades or updates undertaken by the Organization, upgrade or update times given are merely estimates and are not binding on the Organization, additional quotation(s) will be submitted for such upgrades or updates. Delivery and installation times given are merely estimates and are not binding on the Organization. It is the duty of the Customer to return and or report in writing any defective products and or services to the attention of the Organization.
If the Organization agrees to engage a third party for development, design or any other service required, the Organization is hereby authorized to engage a third party on the Customer’s behalf and on the terms deemed fit by the Organization. The Customer agrees to indemnify the Organization against any claims that may arise from such agreement against the Organization.
All guarantees are immediately null and void should any development, design and or services be tampered with outside the Organization specifications. Under no circumstances will the Organization be liable for any damage arising from any misuse or abuse of the products and or services.
Delivery of the product or service will commence only when the following criteria have been adhered to: The required deposit has been paid in full; Any and all required documentation has been completed in full and the date agreed both the Customer and the Organization has agreed upon.
Unless otherwise terminated in terms of the written agreement between the Customer and the Organization, the agreement shall automatically terminate upon delivery of the Software by the Organization; provided that the Customer does not exercise its right to reject the Software, as stipulated in the agreement.
Notwithstanding any other right and/or obligation that the Customer may have in terms of the Agreement, the Customer shall: Deliver the Site Specifications to the Organization on or before the Commencement Date; The Customer will at all times be responsible for the editorial content of the material included on its website. Thus, the Customer agrees that it will indemnify the Organization, should the case arise, against any lawsuit, demand or claim resulting from the editorial content of the website; The Customer unconditionally guarantees to the Organization that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to the Organization for inclusion in the Customer’s website, are owned by such Customer, or that the Customer has permission from the rightful owner to use each of these elements, and will hold indemnify the Organization and any sub-Organizations from any claim or lawsuit arising from the use of such elements.
The Customer shall at any stage during the existence of the Agreement, be entitled to change any aspect of the Site Specifications, provided that”: The Organization has been notified of such changes by way of a Notice; and The Organization has notified the Customer by way of a Notice that the changes are executable; and The Delivery Date shall be extended with not less than the same number of days caused by such a change; and The Customer undertakes to pay the Variation Fee on the Variation Fee Date(s), in the Currency, at the Payment Office.
Should the Organization be unable to plan, design, and code the website on or before the Delivery Date for any reason whatsoever, it shall inform the Customer by way of a Notice thereof. Such Notice shall fully motivate the reasons for the delay and request an extension of the Delivery Date from the Customer. The Customer shall not unreasonably withhold granting such an extension.
In the event that a product and or service cannot be completed due to circumstances surrounding the Customer or failure on behalf of the customer to supply the required information then either of the following will occur: Delivery Date shall be extended by the same period as that delay, and the Customer shall pay the Organization a Retainer Fee on the Retainer Fee Date(s), in the Currency, at the Payment Office. The Organization will at the cost of the Customer source the required information or content on behalf of the Customer in order to complete the relative product and or service.
Limitation of Liability
The Contractor shall not be liable in terms of the Agreement in delict, contract, warranty or otherwise for any consequential or direct damage suffered by the Customer or any third party, which arises out of or is pursuant to any negligent act or omission of the Contractor or its consultants.
The Contractor shall not be liable in terms of any Agreement in delict, contract, warranty or otherwise for an amount which is more than the revenue received from the Customer, for any consequential or direct damage suffered by the Customer, which arises out of or is pursuant to any gross negligent or wilful act or omission of the Contractor or its consultants. The amount of revenue received by the Contractor, for the purpose of this clause, shall be the revenue received in terms of the Agreement, from the Customer up to the date on which the cause of action arose.
Irrespective of any other provision contained in the Agreement, the Contractor shall not be liable to the Customer for any claim, whether for direct damages or for consequential damages made by the Customer or any third party, unless the claim is made within three months after the cause of action arose.
In the event where any third party is successful in any claim against the Contractor, which exceeds the Contractor’s liability in terms of the agreement or where the Contractor has not been notified of the existence of such a claim within three months after the cause of action arose, then the Customer, by entering into the agreement, indemnifies the Contractor and shall reimburse the Contractor, on demand, for all payments, damages and costs (including, but not limited to legal fees on attorney and client scale). The Contractor shall immediately, once such a claim has been brought against it, advise the Customer thereof.
The clause headings in the agreement have been inserted for convenience only and will not be taken into consideration in the interpretation of the agreement. Any reference in the agreement to the singular includes the plural and vice versa. Any reference in the agreement to natural persons includes legal persons and references to any gender include references to the other genders and vice versa.
The Customer agrees to pay the amount on the Tax invoice or a 50% (fifty percent) deposit prior to products and or services being delivered. The amount payable must be considered received by the Organization before any products and or services may be rendered. The Customer has no right to withhold payment for any reason whatsoever. The Customer is not entitled to set off any amount due to the Customer be the Organization against this debt. Payment is required in full for completion of products and or services not including contractual agreements no later than 14 days after completion or by a written agreement on any media between the Customer and the Organization. In terms of contracts payment is required upfront prior to the product and or service.
If any provision of the agreement is found or held to be invalid or unenforceable, the validity and enforceability of all the other provisions of the agreement will not be affected thereby.
The Customer hereby agrees that any product and or service purchased from the Organization may be reused or resold unless per written agreement authorized by both the Organization and the Customer. In terms of the Customer, the product and or service needs to have been paid for in full before being reused or resold.
The Customer agrees that the amount due and payable to the Organization shall be determined and proven by a certificate issued by the Organization and signed on its behalf by any duly authorized person, which authority need not be proven. Such certificate shall be binding and shall be prima facie proof of the indebtedness of the Customer.
The customer agrees that interest shall be payable on all monies due to the Organization at the maximum legal interest rate prescribed in terms of the Usury Act, from the date they fall due. In the case of late payment interest shall be calculated from the date of order.
The Customer agrees that if an account is not settled in full against order, or within the agreed upon period the Organization is, entitled to immediately institute action against the Customer at the sole expense of the Customer, or to cancel the agreement and take possession of any products and or services supplied to the Customer and claim damages.
In the event of cancellation, the Customer shall be liable to pay any product and or service costs incurred by the Organization and any additional contractual costs incurred made by the Organization on behalf of the Customer. All products supplied by the Organization remain the property of the Organization until such products have been fully paid for. The Customer is not entitled to sell or dispose of any products unpaid for without the prior written consent of the Organization.
The Parties shall hold in confidence all Confidential Information received from each other and not divulge the Confidential Information to any person, including any of its employees, save for employees directly involved with the execution of the agreement. The Parties shall prevent disclosure of the Confidential Information, except as may be required by law.
Within six (6) months after the termination of the agreement, for whatever reason, the recipient of Confidential Information shall return same or at the discretion of the original owner thereof, destroy such Confidential Information, and shall not retain copies, samples or excerpts thereof.
It is recorded that the following information will, for the purpose of the agreement, not be considered to be Confidential Information: Information known to either of the Parties prior to the date that it was received from the other party; or information known to the public or generally available to the public prior to the date that it was disclosed by either of the Parties to the other; or Information which becomes known to the public or becomes generally available to the public subsequent to the date that it was disclosed by either of the parties to the other, through no act or failure to act on the part of the recipient of such Information; or Information which either of the Parties, in writing, authorizes the other to disclose.
The Parties elect the following addresses as their respective domicilium citandi et executandi:
13 Canterbury Street, Sherwood, Port Elizabeth, 6025
Any notice or communication required or permitted to be given in terms of the agreement shall only be valid and effective if it is in writing. Any notice addressed to either of the Parties and contained in a correctly addressed envelope and sent by registered post to it at its chosen address or delivered by hand at its chosen address to a responsible person on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, shall be deemed to have been received, unless the contrary is proved, if sent by registered post, on the 14th (fourteenth) calendar day after posting and, in the case of hand delivery, on the day of delivery.
Any notice sent by telefax to either of the parties at its telefax number shall be deemed, unless the contrary is proved, to have been received: If it is transmitted on any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, within 2 (two) hours of transmission; If it is transmitted outside of these times, within 2 (two) hours of the commencement any day of the week between 09h00 and 16h00, excluding Saturdays, Sundays and South African public holidays, after it has been transmitted.
Neither of the Parties shall be liable for a failure to perform any of its obligations insofar as it proves: That the failure was due to an impediment beyond its control; That it could not reasonably be expected to have taken the impediment and its effects upon the party’s ability to perform into account at the time of the conclusion of the agreement; and That it could not reasonably have avoided or overcome the impediment or at least its effects.
An impediment, as aforesaid, may result from events such as the following, this enumeration not being exhaustive: War, whether declared or not, civil war, civil violence, riots and revolutions, acts of sabotage; Natural disasters such as violent storms, cyclones, earthquakes, tidal waves, floods, destruction by lightning; Explosions, fires, destruction of machines, of factories and of any kind of installations; Boycotts, strikes and lock-outs of all kinds, go-slows, occupation of factories and premises and work stoppages; Acts of authority, whether lawful or unlawful, apart from acts from which the party seeking relief has assumed the risk by virtue of any other provisions of the agreement.
For the purposes of this clause “impediment” does not include lack of authorizations, licenses, permits or approvals necessary for the performance of the agreement and to be issued by the appropriate public authority. Relief from liability for non-performance by reason of the provisions of this clause shall commence on the date upon which the party seeking relief gives Notice of the impediment relied upon and shall terminate upon the date upon which such impediment ceases to exist; provided that if such impediment continues for a period of more than sixty (60) days wither of the Parties shall be entitled to terminate the agreement.
The Customer shall be liable to the Organization for all legal expenses (including collection fees) on the attorney-and-client scale of an attorney and counsel incurred by the Organization in the event of any default by the Customer or any litigation in regard to validity and enforceability of the agreement. The Customer will also be liable for any collection or valuation fees incurred. The Customer agrees that the Organization will not be required to furnish security in terms of Rule 62 of the Rules of Court of the Magistrate’s Courts.
The Customer agrees that no indulgence whatsoever by the Organization will affect the terms of the agreement or any of the rights of the Organization and such indulgence shall not constitute a waiver by the Organization in respect of any of its rights herein. Under no circumstances will the Organization be stopped from exercising any of its rights in terms of this contract. The Organization shall have the right to institute any action in either the Magistrate’s Court or the Supreme Court at its sole discretion.
Any document will be deemed duly presented to the Customer within 3 days of prepaid registered post to any of the Customer’s business or postal addresses or to the personal address of any director, member or owner of the Customer, or within 24hrs of being faxed to any of the Customer’s fax numbers or any director, member or owner’s fax numbers; or on beings delivered by hand to the Customer or any director, member or owner of the Customer.
The Customer chooses domicilium citandi et executandi the business address or the physical address of any director (in the case of a company), member (in the case of close corporations) or of the owner(s) or partner(s). The Customer agrees to the standard rates of the Organization for any products or services rendered, which rates may be obtained on request.
All contracts entered into with the Organization need to be in a written format using any agreed medium between the Customer and the Organization. Any cancellation needs to be in a written format using any agreed medium between the Customer and the Organization. Notice of intent to cancel any contracts need to be given in writing on any agreed medium between the Customer and the Organization and is the responsibility of the Customer to ensure that acknowledgment of the intent to cancel has been received in a correct manner by the Organization. Where applicable, penalties may incur due to premature cancellation of a contract. Should this be the case then the payment terms of this contract in lieu of such penalties will apply.
Waiver of Indemnity
Any order is subject to cancellation by the Organization due to force majeure from any cause beyond the control of the Organization, including (without restricting this clause to these instances): inability to secure labour, power, materials or supplies, lockout, or other labour disputes, fire, flood, drought or legislation. This contract becomes final and binding on receipt of the acceptance by the Organization at its business address. No waiver on the part of either party to the agreement of any rights arising from a breach of any provision of the agreement will constitute a waiver of rights in respect of any subsequent breach of the same or any other provision.
You agree, without limitation or exception, to indemnify, defend, and hold harmless the Organization from any and all liability, penalties, losses, damages, costs, expenses, attorneys’ fees (on an attorney-and-own-client costs scale basis), causes of action or claims caused by or otherwise resulting indirectly from Your use of the Services which causes damage, either to You, the Organization, or any other third party. This indemnification extends to all issues associated with Your account, including but not limited to domain name(s) selection and web site content.
Client, Financial Information
You warrant that all information provided by You to the Organization, including without limitation all Your identification and contact information, is true and correct, and that should such information change, You will notify the Organization thereof within 30 days of such change. You further warrant that You are the authorised user of any financial information provided (including without limitation any current account or credit card information) provided to the Organization, and that the Organization has the right to investigate and pursue any possible fraudulent use thereof.
Your use of the Services is at Your sole risk. The Organization is not responsible for the security or integrity of any information stored with the Organization and associated with your account. You undertake full responsibility for the integrity of all files and information communicated via the Services, and You will ensure and maintain appropriate backup facilities of files and information stored on the Organization servers. You acknowledge that, upon the termination of the agreement for whatsoever purpose, the Organization shall be entitled to permanently remove your information from its servers within a reasonable period, following notice to you. If You have not made alternative arrangements acceptable to the Organization for the safe transfer or further storage of your information, the Organization accepts no liability for the permanent deletion thereof.
Breach and Termination
Without prejudice to any other remedies which either of the Parties may otherwise have in terms of the Agreement or at law, either of the Parties shall be entitled to terminate the Agreement by written Notice to the other, in the event that: the Organization infringes the copyright, trade secrets or patent of any third party in order to meet all or some of its obligations contained in the Agreement; Either of the Parties are finally liquidated; The controlling interest or ownership in either of the Parties becomes vested in a competitor of either of the Parties. For the purpose of this clause, the party who makes this allegation shall carry the burden to prove same; Either of the Parties commits a breach of the terms and conditions of the Agreement and fails to remedy such breach within 7 (seven) calendar days after receiving Notice from the other party to the Agreement;
Entire Agreement and Variations
The agreement constitutes the whole agreement between the parties and supersedes all prior verbal or written agreements or understandings or representations by or between the parties regarding the subject matter of the agreement, and the Parties will not be entitled to rely, in any dispute regarding the agreement, on any terms, conditions or representations not expressly contained in the agreement.
No variation or addition to the agreement will be of any force or effect unless reduced to writing and signed by or on behalf of the Parties. Neither party to the agreement has given any warranty or made any representation to the other party, other than any warranty or representation which may be expressly set out in the agreement. From time to time as the law changes so will the agreement and other agreements setup by the Organization have to be updated and or changed. It is up to the Customer to remain informed on any changes to his/her agreement with the Organization. The Organization takes no responsibility to update or inform the Customer of legal or constitutional changes.
Assignment, Cession and Delegation
Neither of the Parties shall be entitled to assign, cede, delegate or transfer any rights, obligations, share or interest acquired in terms of the agreement, in whole or in part, to any other party or person without the prior written consent of the other, which consent shall not unreasonably be withheld or delayed.
No indulgence, leniency or extension of a right, which either of the Parties may have in terms of the agreement, and which either party (‘the grantor’) may grant or show to the other party, shall in any way prejudice the grantor, or preclude the grantor from exercising any of the rights that it has derived from the agreement, or be construed as a waiver by the grantor of that right.
You acknowledge that, by virtue of the agreement, you acquire no interest or any other right in the Intellectual Property of the Organization or its affiliates, and that all such Intellectual Property is and shall remain the exclusive property of the Party to which it belongs. If You become aware of any actual, threatened or suspected infringement of such Intellectual Property, You undertake to immediately notify the Organization thereupon in writing.